he would repaire some part of the Citie that was burnt he shall by the Law be compelled to performe his promise for it is not meet that such promises should be satisfied with repentance Such as professe liberall Sciences in any Common wealth whereby youth is instructed brought vp to knowledge or be Scholmasters or professors of Phisick or be Midwiues Notaries Auditors or Casters of accompts or Registers the Law alloweth not only a competent stipend in recompence of their skil paines but also affordes them meanes how the same may be recouered if it be denied But as for Philosophers Lawyers the Law hath appointed them no stipend not because they are not reuerend Sciences worthy of reward or stipend but because either of them are most honorable professions whose worthines is not to be valued or dishonored by money yet in these cases many things are honestly taken which are not honestly asked and the Iudge may according to the qualitie of the cause and the skill of the Aduocate the custome of the Court and the worth of the matter that is in hand appoint them a fée answerable to their place as also to such as are Interpreters betwéene parties in matters of traffique when one vnderstands not an others language The second Tome of the Law is the Code stands in xij Bookes whereof eight for the Titles follow in a maner the order of the Digest a few titles only excepted which are added besides those of the Digest but as for the 4. other which are the first the tenth the 11. the 12. although the subiect they treat of be named in the Digest yet the things which are there named are not handled in the Digest and therefore will I passe ouer those 8. other lest happily I might séeme to do one thing twice therefore will I refer the Reader ouer to that which hath bin said of them before in the handling of the Digest for they are almost twinnes of one mother so that whosoeuer knowes the one shall with no great difficulty discerne the other come to the other fower yet not mentioned there But yet before I lay open the matter therof I wil in a word or two shew why this volume of the Law is called the Code who is the author thereof out of whom it was collected what moued the author after so many learned titles set downe before of such things as are in the Digest deduced by such a number of worthy Lawiers as the lawes of the Digest themselues doe by their inscriptions shew for euery law carrieth with him in his forehead the name of his Author to make a new florish of the same what the knowledge of the Code odth confer vnto a Student or practiser of the Law more than the knowledge of the Digest doth The Code therefore is named of the word Caudex that is the trunck or timber of the trée from which the barke of the trée is pild or puld off of which men aunciently vsed to make writing tables artificially binding them vp into the forme of a booke and vsing them for bookes before the vse of paper or parchment was knowen insomuch as many of these tables being bound together they were called a Code or booke besides whereas the auncient Lawyers before Iustinianus time vsed to write their pleas and answeres in scroules of paper or parchment Iustinian himselfe first put them in a booke and therefore termed them by the name of a Code The Code it selfe is compiled of the answeres of 56. Emperors and their wise Councell whereof sundry were learned skilfull Lawyers as the storie of that time doth shew and the Lawes themselues do name some of them as that most excellent and famous man Papinian and some others that is from the dayes of Adrian the Emperor vnto the age of Iustinian himselfe The cause that moued Iustinian hereto was that in the Digest he found not euery case decided that fals out in common vse of life for how is it possible when as euery moment there fals out new matter for which former Lawes made no prouision and therefore thought good to supplie that by new Lawes which he found defectiue in the old so that the multiplication of those titles grew not that the Emperor had any meaning to fill the world with multitude of Lawes for he had found the inconuenience thereof already and therefore had repealed and abolished so many thousand of olde Lawes as he had but it came rather of that that the multitude of causes were so many that euery day there fell out some vnexpected thing that was neuer heard of before beside notwithstanding the carefulnesse of the Emperor himselfe and his great Lawyer Treboman and others whom he vsed for the selecting chosing out of the purest best and most agréeing Lawes among themselues out of that indigested heap of Lawes he then abolished yet they were not so quicke sighted but in that great worke sundry antinomies or contrarie Lawes past them which had néed to be expounded and amended and the Authors to be recited Further sundry of ancient Lawes were so subtlely written that there was more wit then profit in them so that it was expedient the Emperor should explane the same and putting all subtlety a side giue a right sence vnto the Law Lastly whereas many things were deliuered by them brieflie and therefore obscurely the Law-giuer in his princely wisdome set out the same in other Lawes more plentifull and distinctly all which were the chiefest causes why the Emperor set out the booke of the Code The Code neither in style neither in methode commeth to the perfection of the Digest as that which for the style is a barbarous Thracian phrase Latinized such as neuer any meane Latinist spake whereas notwithstanding the style of the Digest is verie graue and pure such as doth not much differ from the eloquentest spéech that euer the Romanes vsed and for the Methode it hath no particuler disposition other then such as is borowed of the Digest it selfe otherwise is rude and vnskilfull where it doth recéede from the same yet doth it not lack his good vse for to such as follow the practise of the law the knowledge of the Code is much more expedient then the knowledge of the Digest is for that the lawes of the Code doe determine matter in daily vse of life which when they are like in all ages for the same is euermore vpon the stage the persons a litle altered it cannot be but the learning thereof is very profitable and expedient for the Common wealth whereas notwithstanding the learning of the Digest stands rather in discussing of subtill questions of the Law enumerations of the variety of opinions of ancient Lawyers thereupon which haue more commendation of wit than benefit toward the common wealth in them but hereof hetherto The first Booke of the Code treateth of Religion and the Rites Ceremonies thereto belonging
presumed to kéep company with an other her husband yet being aliue But if they found it otherwise then they should pronounce her the said Agatha to be legitimate All which was done after the death of the said Raph and Aneline as the Decretall it selfe shewes Neyther was there any authoritie that opposed it selfe against that procéeding but held it to be good and lawfull though it were in tearmes of speciall Bastardy for then that which they now call speciall Bastardy was not borne Besides hereby it appeareth that the Ordinaries then did not only procéed in cases of Bastardy incidently that is when a suit was before begun in the Common Law vpon a triall of inheritance that by writ from the Temporall Courts but euen originally that to prepare way vnto inheritance or any other good that was like to accrue vnto a man by succession or to auoyd any inconuenience that might keep him from promotion as may appeare by this practize following Priests in the beginning of the Raigne of Henry the 3. Constitut Othâ—n innotuit de vxovatiâ— Ã Beneficijs amouendis yet married secretly their Children were counted capable of all inheritance and other benefits that might grow vnto them by lawfull Marriage so that they were able to proue that their parents were lawfully married together by witnesses or instruments which manie Children did eyther vpon hope of some preferment that by succession or otherwise was like to come vnto them or to auoid some inconuenience that otherwise might light vpon them for the want of that proofe some their parents yet liuing others their parents being dead and the procéedings before the Ordinarie was holden good to all intents purposes euen in the Common Law for otherwise they would not haue so frequented it for as yet there was made no positiue Law against Marriages of Priests or Ministers but the Church of Rome then plotting against it for that by that they pretended the cure of Soules was neglected the substance of the Church wasted and dissipated did by Otho then Legate a Latere to Gregory the 9. order by a Constitution that all such Ministers as were married should be expelled from their Benefices that their Wiues Children should be excluded from all such liuelyhood as the Fathers had got during the time of the Marriage either by themselues or by any middle person that the same should become due vnto the Church wherein they did reséed and that their children from that time forth should be disabled to inioy holy orders vnlesse they were otherwise fauorably dispenced withall which Constitution although it wrought to that effect to barre Priests for that time of their Marriage vntill the light of the Gospell burst out and shewed that that doctrine was erronious yet to all other effects the procéeding in the case of Bastardie stood good as a thing due to be done by holy Church And therefore Linwod comming long after in his Catalogue that he maketh of Ecclesiasticall causes reciteth Legitimation for one among the rest for that in those daies there was no dispute or practise to the contrarie And thus â—ar as concerning those things wherein the Ecclesiasticall Law is hindered by the Temporall in their proceedings contrarie to Law Statute and custome aunciently obserued which was the third part of my generall diuision Now it followeth that I shew wherin the Ecclesiastical law may be relieued so both the laws know their own bounds and not one to ouerbeare the other as they doe at this day to the great veration of the subiect and the intollerable confusion of them both which is the last part of this Treatise The meanes therefore to relieue the profession of the Ciuile Law are two The first is by the restoring of those things which haue bin powerfully by the Common Law taken from them the bringing of them back againe vnto their old and wonted course The other is by allowing them the practise of such things as are grieuances in the Common wealth and fit to be reformed by some court but yet are by no home-Law prouided for The first of these stands in two things whereof the one is the right interpretation of those Lawes statutes and customes which are written and deuised in the behalfe of the Ecclesiasticall Law The other consisteth in the correcting and supplying of such Lawes and Statutes that are either superfluous or defectiue in the penning made in the behalfe as it is pretended of the Ecclesiasticall profession but yet by reason of the vnperfect penning thereof are construed for the most part against them The right interpretation of the Lawes Statutes and Customes pertaining to the practise standeth as is pretended in the Iudges mouth who notwithstanding hath that authoritie from the Soueraigne and that not to iudge according as him best liketh but according as the right of the cause doth require The supply or reforming of that which is ouerplus or defectiue is in the Parliament so notwithstanding as that the Prince euermore breatheth life into that which is done Lawes Statuts or Customes are then best interpreted whenas the verie plaine and naturall sence of them is so sought after and no forraine or strained exposition is mixt with them for that turneth Iustice into wormewood and Iudgement into gall then that the Iudge be noÌ„t to subtill in his interpretation but follow such exposition of the Laws as men of former age haue vsed to make if they be not plainly absurd and erronious for oft shifting of interpretations bréedeth great variance in mens states among such as haue busie heads much discrediteth the Law it selfe as though there were no certainty in it with which although the sage Iudges of our time cannot bee charged for oght that I know yet I cannot tell how men much complaine that lawes are far otherwise construed in these daies than they were in former ages which as it is an ordinarie complaint in the Temporall Courts so it is not without cause much lamented at in the spirituall Courts where the interpretation vpon the thrée Statutes of Tiths made by King Henry the eight and Edward his son among sundry other inconstancies of other Lawes hath such great varietie of sence and vnderstanding in sundry points thereof as that if the makers thereof were now aliue and the first expositors therof sate in place of Iudgement againe the Statutes being measured by the interpretation they now make of them would hardly acknowledge them either to bee the Statuts that they made or the other did after expound and declare for euery of these Statutes and the sence that was giuen of them was wholy for the benefit of the Church according to the tenor thereof but as they now receiue explication they are not onely not beneficiall vnto the Church but the greatest hynderance to the same that may be for the words are made to iar with the sence and the sence with the words neither is there kept any right
miscarie Such as kéepe brothell and baudy houses or other vnlawful company Iuglers and such as carie about Snakes and other like Serpents and trumperie to put men in feare Such as hide and suppresse Corne to cause the price to be dearer Such as eyther make or vse false waights wittingly for all which because there is no proper punishment prouided in the Law they are referred to the punishment of the Iudge who is to punish them according to the qualitie of the fact age and vnderstanding of the offender and other circumstances according as he shall thinke good so notwithstanding that he excéed not a conuenient measure therein neither stretch the same to death but vpon some great and weightie cause he is to be content with meaner punishmēt as temporall banishment whipping or some moderat pecuniarie mulct For violating or defacing another mans sepulcher Infamy was imposed besides a pecuniarie mulct to be diuided betwéene the Prince and the partie grieued but if any dig vp the corse of the deceased the punishment is death If any by feare of his office or authoritie wring any money from any man or exact more fées in any matter than hee ought to doe or cause him to marry or doe any other thing he would not doe the forfeiture is foure double the value of that which hath béene taken beside further punishment at the discretion of the Iudge Such as driue mens cattell out of their ground or seuer them from the flock or heard with intent to steale them if they doe it with a weapon like vnto a Robber are condemned to bee throwne to wild beasts otherwise are more lightly punished according to the discretion of the Iudge Such as in Iudgement take money on both sides or taking vpon them the defence of one side betray the cause and take money on the other side are infamous by law and are punished at the discretion of the Iudge Such as receiue théeues and other like malefactors are punished in like sort as the théeues or malefactors themselues are specially if they haue assisted them in their wickednesse otherwise if they onely knew it and receiued them they are more mildly to be punished specially if the offenders were their kinsmen for their offence is not like theirs which entertaine those which are no kin vnto them at all when as it is naturall for euery one to regard his own blood and fathers are many times more carefull for their children then for themselues but if that hee that receiued them knew nothing of the offence then is hee altogether to be excused Such as breake prison are to bee punished by death because it is a certaine treason to breake the Princes ward but if they scape by the negligence of the Kéepers against whom the presumption lyeth euer in this case they are more lightly to be punished If any commit Burglarie breaking vp a dore or wall with intent to doe a Robberie if they be base companions they are to bee condemned to the Mines or Gallies but if they be of better reckoning they are to be put from the ranke or order wherein they are or to be banished for a season Iuglers and like Impostors which goe about deceiuing of the people with false tricks and toies hookes and such like which insinuat themselues into other mens houses with purpose to steale are punished at the discretion of the Iudge If any steale or take away any thing out of the inheritance of another man before either the Will be prooued or adminstration be taken an action of theft lyeth not because the inheritance during the time was counted no bodies but hee is to be punished by the discretion of the Iudge yea though it were the heire himselfe that did it Cosenage whereby a man craftily suppresseth something he should not or putteth one thing in anothers place to the deceit of him that he dealeth withall or corrupteth such wares which hee vttereth or doth any other thing collusorily which is called of the Law Crimen Stellionatus of a little vermin or creature called Stellio much like to a Lisard most enuious to man is censured by some ignominious and shamfull punishment or by disgracing the person by putting him out of the Office Place or Order he is in or by inioyning him some seruile worke or by banishing him for a time or by some like punishment at the discretion of the Iudge If any plough vp a Mere balke or remooue any other marke which hath accustomed to bee a Marke or bound betwéene ground and grounds which aunciently was counted reuerend and religious among men the offence is punished either by a pecuniarie mulct or by banishment or whipping at the discretion of the Iudge Vnlawfull Colledges Corporations and assemblies gathered together to bad vses as to eating drinking wantonnesse heresie conspiracie as punished are publike Routs or Riots otherwise at the discretion of the Iudge All these before recited are called Populer Actions because not only he that is iniured but euery other honest subiect may peruse and prosecute the same Publick Iudgements are such which immediatly pertain to the punishment of the common wealth for example sake and are examined tried and punished by a publicke order appointed by Law the partie grieued making himselfe partie to the suite and following the same the partie accused in the meane while remaining in prison or putting in suerties for his apparance and the partie grieued for the prosecuting of the same The chiefest of which sort is Treason which is a diminishing or derogation of the Maiestie of the people or Prince on whom the people haue collated all their power which is punished with death and confiscation of the Lands and goods of the offender and the eternall abolishment of his memorie The next is Adultery which is violating of another mans bed whose punishment aunciently was death both in the man and in the woman but after it was mitigated in the woman she being first whipt and then shut vp in a Monasterie but by the Canons other paines are inflicted Vnder Adulterie are contained Incest Sodomy Baudery and all the rest of the sins of that kind Publicke force is that which is done by a company of armed men collected together and the correction thereof is perpetuall banishment Priuat which is done without Arms the paine thereof is the losse of halfe the parties goods and the infamie of his name Murtherers and Poysoners Witches and Sorcerers the crime being proued dye the death such as set mens houses a fire are to be consumed with fire themselues such as Kill either Father or Mother or those that are in the place of Father or Mother or any that are of next a kin their punishment is death and in case of the Father and Mother beside the paine of death the Parricide being first well whipt so that the blood doe follow in good plenty being sowed vp into a sacke together with a Dong a Cock and an Ape hee is throwne into
Iustices of Peace or other officers to that purpose appointed speedily dispatch the businesse of those which are of their Iurisdiction that such as come as strangers and forrainers out of other contries hauing no iust cause of their comming they send backe againe with their substance to such places as they came fro but if they be idle vagabonds and Rogues or other like valiant beggers they either driue them out of the place or compell them to labour yet euermore hauing regard to prouide for such as are honest poore old sick or impotent That Clerkes bee first conuented before their Ordinarie and that the Ordinarie do speedily end the matter that they may not be long absent from their benefices and that they be not drawne before temporall Iudges vnlesse the nature of the cause doe so require it as that it be a méere Ciuile cause or a criminal cause belonging wholy to the Temporal court wherein if a Clerke shall bee found guiltie he shall first bee depriued from his ministerie and then shall bee deliuered ouer into the Seculer hands but if the crime bee solely Ecclesiasticall the Bishop alone shall take knowledge thereof and punish it according as the Canons doe require That where one dieth without issue leauing behind him brethren of the whole bloud and brethren of the halfe bloud the brethren of the whole bloud haue the preheminence in the lands and goods of the deceased before the brethren of the halfe bloud whether they be of the fathers side or the mothers side That no man make Armour or sell it without the princes leaue vnlesse they bee kniues or other such like small weapons That proofe by witnesses was deuised to that end that the truth should not be concealed and yet all are not fit to be witnesses but such alone as are of honest name and fame and are without all supition of loue hatred or corruption and that their dispositions bee put in writing that after the witnesses bee published and their depositions bee knowne there bee no more production of witnesses vnlesse the partie sweare those proofes came a new vnto his knowledge If Parents giue profusely to one of their children the other notwithstanding shall haue their lawfull porcions vnlesse they be proued to be vnkinde towards their parents That women albeit they be debtors or creditors may be Tutors or Curators to their children and that there is not an oath to be exacted of them that they wil not marrie again so that they renounce their priuiledge graunted vnto them per Senatus consultū Velleian̄ and performe al other things as other Tutors doe That Gouernours of Prouinces are not to leaue their charges before they are called from thence by the Prince otherwise they incurre the danger of Treason That womens Dowries haue a priuiledge before all other kinds of debt that what Dowrie a woman had in her first marriage she shall haue the same in her second marriage neither shall it be lawfull for her father to diminish it if it return againe vnto his hand That a man shal not haue the propertie of his wiues dowrie neither a woman the propertie of that which is giuen her before marriage but the propertie of either of them shal come vnto their children yea though they marrie not againe Wils or Testaments made in the behoofe of children stand good howsoeuer imperfect otherwise they are but they are not auaileable for strāgers but strangers are they which are not children neither mattereth it whether the Will or Testament be writ by the fathers hand only or by some other body by his appointment as the father deuideth the goods among the children so they are to haue their parts Of Hereticks and that such are Hereticks which do refuse to receiue the holy Communion at the ministers hand in the Catholick Church that Hereticks are not to be admitted to roomes and places of Honor and that women Hereticks may not haue such priuiledge as other women haue in their Dowries That is called Mariners vsury that is wont to be lent to Mariners or Marchant men specially such as trade by sea which kind of lending the law calleth passage money in which kind of vsury a man cannot go beyond the 100. part That Churches inioy a 100. yards prescription That such things as are litigious during the controuersie are not to be sold away A Litigious thing is that whih is in suite betwéene the plaintife and defendant That while the suite dependeth there bee no Letters or Edict procured from the Prince concerning the cause in question but that the cause be decided according to the generall Lawes in vse That in Diuorces the children be brought vp with the innocent partie but at the charges of the nocent and that Diuorces bee not admitted but vpon causes in Law expressed That no woman whose husband is in warfare or otherwise absent shall marry againe before she haue certaine intelligence of the death of her former husband either from the Captaine vnder whom he serued or from the gouernour of the place where he died and if any woman marrie againe without such certain intelligence how long soeuer otherwise her husband be absent from her both she and he who married her shall be punished as adulterers and if her former husband after such marriage retorne back againe she shall returne againe to her former husband if hee will receiue her otherwise she shall liue apart from them both If any man beat his wife for any other cause than for which he may be iustly seuered or diuorced from her hee shall for such iniurie be punished If any man conceiue a iealousie against his wife as that she vseth any other man more familiarly then is méete shee should let him thrée seuerall times admonish him thereof before thrée honest and substanciall men and if after such admonition he be found to commune with her let him be accused of adultery before such Iudge who hath authoritie to correct such offences The ninth and last Collation containeth matter of succession in goods that as long as there be any descendent either Male or Female so long neither any ascendent or any collaterall can succeed and that if there be no discendent then the ascendent be preferred before the collaterall vnlesse they be brethren or sisters of the whole blood who are to succéed together with the ascendent but in ascendents those are first called which are in the next degrée to the deceased then after those which are in a more remote degrée that in collaterals all be equally admitted which are in the same degrée and of the same Parents whether they be male or female That the lands of any Church Hospitall or other like Religious place be not sold aliened or changed vnlesse it be to the Princes house or to or with an other like Religious place and that in equall goodnesse quantitie or that it be for the redemption of Prysoners and that they be not let out to any priuat
the ministring of the Sacraments in Baptisme and the vse of imposition of hands all which is set out vnder fiue distinctions The Decretals are Canonicall Epistles written either by the Pope alone or by the Pope and Cardinals at the instance or suite of some one or more for the ordering and determining of some matter in controuersie and haue the authoritie of a law in themselues Of the Decretals there bee thrée volumes according to the number of the authors which did deuise and publish them The first volume of the Decretals was gathered together by Ramundus Barcinius Chaplein to Gregory the ninth at his the said Gregories commaundement about the yeare 1231. and published by him to be read in scholes and vsed for Law in all Ecclesiasticall Courts The sext is the worke of Boniface the eight methoded by him about the yeare 1298. by which as hee added something to the ordinance of his predecessors so hee tooke away many things that were superfluous and contrarie to themselues and retained the rest The third volume of the Decretals are called the Clementines because they were made by Pope Clement the fift of that name and published by him in the Councell of Vienna about the yeare of grace 1308. To these may be added the Extrauagants of Iohn the xxij and some other Bishops of Rome whose authors are not knowne and are as Nouell constitutions vnto the rest Euery of these former volumes are diuided into fiue Bookes and containe in a manner one and the same titles whereof the first in euery of them is the title of the blessed Trinitie and of the Catholicke faith wherein is set downe by euery of them a particuler beliefe diuers in words but all one in substance with the auncient Symbols or beliefe of the old Orthodox or Catholicke Church Secondly there commeth in place the treatie of Rescripts Constitutions and Customes and the authoritie of them and when they are to be taken for Law after followeth the meanes whereby the greater gouernours of the Church as namely Archbishops Bishops and such like come vnto their roome which was in two sorts according as the parties place or degrée was when he was called vnto the roome as if he were vnder the degrée of a Bishop and was called to bee Bishop or being a Bishop was called to be an Archbishop or to be the Pope himselfe he was thereto to bee elected by the Deane and Chapiter of the Church where he was to bee Bishop or by the Colledge of the Cardinals in the Popedome but if he were alreadie a Bishop or an Archbishop and were to be preferred vnto any other Bishopricke or Archbishoprick then was he to be required by the church he was desired â—nto and not elected which in the Law was called Postulation after Postulation followed translation by the superior to the Sea to the which he was postulated or required after Election followed Corfirmation and Consecration of him that was elected which both were to be done in a time limited by the Canons otherwise the partie elected lost his right therein Bishops and other beneficed men sundry times vpon sundry occasions resigne their benefices and therefore is set downe what a renunciation or resignation is who is to renounce and into whose hands and vpon what causes a man may renounce his benefice or bishopricke and because vnder-Ministers are oftentimes negligent in their Cure that the people in the meane time may not bee defrauded of Diuine Seruice the Sacraments and the food of the word of God it is prouided that the Bishop shal supply the negligence of such Ministers as are vnderneath him in his Iurisdiction besides because holy orders are not to be giuen but by imposition of hands with prayer and fasting foure fit times in the yeare are for the same lymitted where also is set downe how they are to bee qualified which are to be ordered what triall or examination is to bee had of them what age they are to bee of and what gifts of body or mind they are to be indowed withall what Sacraments may be reiterated what not that Ministers sons are not to succéed their fathers in those benefices wherein their fathers immediatly before were Pastors or gouernours lest happily thereby there might be claimed a succession or inheritance in the same that no bondmen or accomptants men distorted or deformed in body bigamists or twice married men be admitted to holy orders Of wandering Clarkes and how that they are not to be admitted to minister in another Diocesse then where they are ordered without the Dimissarie Letters of the bishop vnder whom they were ordered Of Archdeacons Archpriests Sacrists vicars what they are and wherin their particular offices do consist Of the office of Iudges in generall and their power whether they bee Delegats Legats a latere or Iudges ordinarie Of difference in Iurisdiction betwéene Ministers Ministers and what obedience the inferior Ministers are to yéeld vnto their superiors Of Truce and Peace which Ecclesiastical Iudges are to procure that truces be kept from Saturday in the euening vntill Monday in the morning and that there be no fighting from the first day of the Aduent vntill the eight day after Twelfe tide and that warre likewise doe cease from the beginning of Lent vntill the eight day after Easter vnder paine of Excommunication against him that presumeth to doe the contrarie and that in time of war neither Priests Clarkes Marchant men country men either going to the field or comming from the field or being in the field or the cattell with which they plough or the seed with which they sow be hurt or violated Iudges before men enter into the dangerous euents of Law are to persuad the parties litigant by priuat couenants and agréement to compound the controuersie betwéen them wherein if they preuaile not then the parties are to prouide themselues of Aduocats Proctors or Sindects according as they are priuat men or bodies politicke to furnish their cause and direct them in procéeding If any Church hath bin hurt in any contract of bargaine or sale or in demising of any Lease or by the Proctors negligence it is to be restored againe into her former state to alledge and plead that for it selfe which is agréeable to Law and conscience The like grace is to be graunted to all other Litigants whatsoeuer who haue by feare or violence or any other like vniust cause béene hindered from the prosecution of their right If any séeing a suite like to be commenced against him do either appeale before he be serued with Processe or alienat away the thing whereupon the suite was like to grow he is to bee compeld to hold plee of the same cause before the Iudge from whom he did appeale and to answere his aduersarie as though still he were owner of the thing he did in policie sell or alienat away Many times things which otherwise can haue no spéedy end by Law are compounded by arbiterment Arbitrators
ought to be od in number that if they disagrée that which is concluded by the greater part may preuaile An arbiterment is a power giuen by the parties Litigant to some to heare and determine some matter in suite betwéene them to pronounce vpon the same to which they are to bind themselues vnder a penaltie to stand The first Booke hauing set out the first obiect of the Law which standeth in the persons who make vp the Iudgemēt as in the person of the Iudge himselfe the Aduocats Proctors and Clients there followeth in the second booke the second obiect of the same which is the Iudgemēts themselues which are to be commenced by a Citation that in a competent court fit for the same by a Libell offered vp in the court by the plaintife to the Iudge which is to containe the sum of that which is required in Iudgemēt where if the defendant do againe reconuent the plaintife he is to answere albeit the defendant be not of that Iurisdiction the libel being admitted the defendant is to ioyne issue and yet before either of them enter any further into the cause that there may be faire and sincere dealing in the same that all suspition of malitious dealing therin may be taken away each of them are to take an oath the Plaintife that hee doth not of any malice prosecute the suite against the Defendant or the Defendant of any malice maintain the suit against the plaintife but that they verily beléeue their cause is good and that they hope they shall be able to prooue the one his libell the other his exceptions if he shall put in any into the Court. The cause being begun delaies are often graunted if either there come any Holyday betwéene or any other like iust cause bee offered as for producing of witnesses and such like If there be no iust cause of delay then the Iudge is to goe on in the due course of Law prouided alwaies that more bee not demaunded by the plaintife than is due and that the cause possessarie bee handled before the petitorie and that hee that is spoiled bee first and before all things restored to that thing or place whereof he was spoyled or from which he was put fro yea though he haue nothing els to alledge for himselfe beside the bare spoliation it selfe If the one side or other wilfully or deceiptfully decline Iudgement the Iudge is to put the other in possession of that which is in demaund or at the lest to sequester the fruits and possessions of that which is in controuersie but if both parties appeare and ioyne issue affirmatiuely then is it but a question of Law and not a fact neither doth there remaine ought els to bee done by the Iudge but that hee giue sentence against him that hath confessed it and put his sentence in execucion But if issue be ioyned negatiuely then is the plaintife to proue his Libell so far as it consists in fact by witnesses which are to be compelled by Law if they will not come or appeare voluntarily by publicke and priuat instruments by presumptions by coniectures by oath which being done the Defendant in like sort is to bee admitted to proue his exceptions and cleere his prescription if hee bee able to alledge any in which hee is Plaintife neither is hee bound thereto before the Plaintife haue perfected and prooued his owne right After proofes are brought on either side and the same thoroughly disputed on by the Aduocats the Iudge is to giue sentence which he is to frame according to the Libell and proofes formerly deduced in the cause The sentence being giuen Execution is to bee awarded vnlesse there be an appeale made from it within ten daies by the Law but fiftéene daies by the Statute of this Land from the time the partie against whom sentence was giuen had knowledge thereof or vnlesse it be appealed incontinently at the acts and in writing before a publike notary or at the lest the partie against whom the sentence proceeded within due time take his iourney toward the higher Iudge to prosecute the same by whom the former sentence is eyther confirmed or infirmed in the second instance The third booke conteyneth such Ciuile matters and causes as are liable to the Ecclesiasticall Courts as the honest life or conuersation of Clerks and theyr comely comportment in all their demeanor with what women they are to cohabit and dwell with whereby they may be frée from all suspition of ill life and with whom not which of them may be maried by the law of the Canons and which not in what cases they may be allowed to be non resident and in what not and how such as are non residents may be called home vnto their cure and if they retorne not vpon processe sent out against them how they are to be punished namely by depriuation or sequestration of the fruits and commodities of their benefice Prebends and dignities are preferments for Clerkes but not for such as are idle or absent from the same without iust cause but if any Clerk or Minister be sicke and his disease be curable he is to receiue the benefit of his prebend or dignitie in his absence as though he were present but if it be contagious or vncurable then is he to be put from the exercise of his office and a helper or coadiutor to be ioyned vnto him and they both to be mayntained of his stipend Prebends or dignities are to be got by institution which are to be giuen by the Bishop or his Chauncelor or such other as haue Episcopall iurisdiction without which neither any benefice is lawfully gotten or can lawfully be reteyned Benefices not void ought neyther to be granted neyther to be promised but such as are void ought to be granted wythin sixe monthes after knowledge of the voydance thereof otherwise the grant of them diuolueth commeth vnto the superiour he that causeth himselfe to be instituted into a benefice the Incumbent therof being aliue himselfe is to be deposed from his orders While any Benefice or Bishopricke is void nothing is to be changed or innouated in it and such gifts sales or changes of Ecclesiastical things as are made by the Bishop or any other like Prelate wythout the consent of the Chapiter are void in Law and such Benefices as do become void are to be bestowed without any impayring or diminution of the same In what case the goods and possessions of the Church may be alienated and in what not and that such things as are alienated be alienated by the greater part of the Chapiter otherwise the alienation is void What goods of the Church may be lent what sold what bought what changed what demised or let to lease what Morgaged or let to pawne After these follow Tractats of last Wils and Testaments of succession by way of Intestate of Burials of Tythes first Fruits and Offerings Of Monkes and their state in sundry sorts of the
titul C. de quadrienni◠prescript l. bene for albeit the propertie of things may bee got by many meanes as wel by the law Ciuile as by the law of Nations yet is it not a thing so easie to bee proued for that there must concur many things to the proofe of a propertie otherwise you shall faile in your suit as in a case of bargaine and saile that there was such a contract betwéene the buyer and the seller that there was either money paid for it or that he that sold it was content to take the buyers word for it that deliuerie was made thereof otherwise the C. de acquirend possess l. 1. ext c. 1. de consuetudin propertie passeth not but only in some few cases in which neither possession nor deliuerie is required Lastly that hee which sold it was rightfull owner of it otherwise can he not passe ouer a thing he had no right vnto The Lordship or propertie of things is bipartite for either it is direct or full such as men haue when they haue not only the thing it selfe whereof they are Lords or Proprietaries but also the vse and commoditie therof or els it is profitable as is the hold of Tenants and Farmers who haue the vse gaine and possession of the thing but the Lord the propertie and rent in acknowledgement of his right and Soueraigntie The Possessorie is that right wherby the vse or possession of a thing is claimed of which there be thrée sorts for it is either in getting of the possession of that a man hath not or in kéeping of the possession of that a man hath or in recouering and regaining of the possession of that which is lost The procéeding in all these Ciuile matters is by Libell concluding to the action the partie agent giuing caution to prosecute the suite and to pay what shall be iudged against him if he faile in the suite the Defendant on the contraris part securing his aduersarie by sufficient suertie or other caution as shall séeme méete for the present to the Iudge that he will appeare in Iudgement and will pay that which shall be adiudged against him and that hee will ratifie and allow all that his Proctor shall doe in his name for to all these ends satisdation in Iudgement is which is nothing els but a course to secure the aduersarie of that which is in debate before the Iudge that on what side soeuer the cause shal haue an end the clyents may bee sure to get that which by law shall be adiudged vnto them And so much of those matters wherof the Ciuile law here in England vsually holdeth plée Now of the Criminall matters which belong to that Court but yet by way of Commission from the prince and that is that horrible crime of Pyracie detested of God and man the actors wherein Tully Cicer. 3. lib. off calleth Enemies to al and to whom neither faith nor oath is to be kept Piracie is called of the gréeke word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is Deceptio in latine and in English Deceipt for that many times they pretend friendship when they intend nothing els but robberie and bloudshed or they are so termed of the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is of their wandring vp and downe and resting in no place but coasting hither and thither to doe mischiefe A Pyrat is a sea-théefe who for to inrich himselfe either by subtilty or open force setteth vpon Marchants others trading by sea euer spoiling them of their loading if they get the vpper hand and sometimes bereauing them of their life and sinking of their ships The proceeding in these Criminall matters is by accusation and information and after by triall of twelue men vpon the euidence according to the lawes of this land and the lawes of the auncient Feudes of Lombardie where the like triall is and from whence it seemeth this of ours was first deriued But here must we note that matters of reprisals are no Pyracies although many times there fals out no lesse outrage in them for spoiling and slaying of men than doth in the other for that Reprisals are done by the princes commission graunted to the subiect for redresse of some iniurie done to himselfe or his subiect by some other forraine Prince or Subiect and amends hath bin required by law and cannot be had whereupon licence is giuen to the subiect to relieue himselfe by what way he can against the other Prince or any of his subiects by taking so much goods of his as himselfe was indamaged which course is held among Princes the rather to affoord Iustice where it is lawfully demaunded Bartol l. nullus num 2. C. de Iudaeis Caelicolis And thus much of the causes whith ordinarily do belong vnto the cognisance of the Ciuile law within this land Now it followeth that I speake somewhat of those things wherein the Ciuile Law dealeth incidently and by authoritie of the Prince is not the ordinarie obiect of the Ciuile Law howsoeuer otherwise they cannot be handsomely dealt in but by such as haue the skill of the Ciuile Law Wherof there be thrée sort the first is matters of forraine treatie betwéene one prince and another the second is the ordering of martiall causes whether they bee Ciuile or criminall in an Armie the last is the Iudgements of ensignes and Armes and the decisions for challenges of rights of Honour and precedencie where any of them is in controuersie For the first wheras all other Nations in compasse round about vs be gouerned by the Ciuile Law and treaties are to be decided by law both for those things which are in question and to be concluded by Law for those things which are determined by consultation and agréed vpon who is therto to be chosen rather than a Ciuilian to whom their law is knowne as well as to themselues and if perhaps he vnderstand not their language yet hee vnderstandeth that language wherein the lawes themselues are written and is the fittest tongue for treatises betwéene Princes and Princes because it is a common tongue to the learned of all the west part of the world and thereby euery Prince shall retaine his owne maiestie in parlying as it were in his owne language and not be forced to speake in another Princes tongue which no doubt is a great disaduantage to him that shall treat for that euery Nation hath some proper Idiom not so wel discerned by the booke-speaker as perceiued by the Natiues of the country where it is spoken and wherein a stranger may easily bee deceiued How much forraine Princes doe esteeme of the skill of a Ciuilian in these matters it may bee vnderstood thereby that they neuer for the most part send any Embassage for the treatie of any league or matter of commerce but that one or moe of them are Ciuilians And if the care of these things bee so great with them surely the estimation of the same ought not to
the same word Elsewhere is to be ment and conceiued of the places of remoue the Popes vsed in those dayes being somtimes at Rome in Italy sometimes at Auignion in France semetimes in other places as by the date of the Bulls and other processe of that age may be séene which seuerall remoues of his gaue occasion to the Parliament of inserting the word Elsewhere in the bodie of those Statutes that thereby the Statutes prouiding against Processe dated at Rome they might not bée eluded by like Processe dated at Auignion or any other place of the Popes aboade and so the penaltie thereof towardes the offender might become voyd and be frustrated Neyther did the Lawes of this Land at any time whiles the Popes authoritie was in his greatest pride wythin this Realme euer impute Praemunire to any Spirituall Subiect dealing in anie Temporall matter by any ordinarie power wythin the land but restrained them by Prohibition only as it is plaine by the Kings Prohibition wherein are the greatest matters that euer the Clergie attempted by ordinarie and domesticall authoritie and yet are refuted only by Prohibition But when as certeine busie-headed fellowes were not content to presse vpon the kings Regall iurisdiction at home but would séek for meanes for preferment by forrein authoritie to controul the Iudgements giuen in the kings Courts by processe from the Pope then were Premunires decréed both to punish those audacious enterprises of those factious Subiects and also to check the Popes insolencie that he should not venter hereafter to enterprise such designements against the King and his people But now since the feare thereof is past by reason all entercourse is taken away betwéene the Kings good Subiects and the Court of Rome it is not to be thought the meaning of good and mercifull Princes of this land is the cause of these Statutes being taken away the effect thereof shall remaine and that good and dutifull subiects stepping happily awry in the exercise of some part of their Iurisdiction but yet without preiudice of the Prince or his Regall power shall be punished with like rigor of Law as those which were molesters gréeuers and disquieters of the whole estate But yet notwithstanding the edge of those Premunires which were then framed remaine sharpe and vnblunted still against Priests Iesuits other like Runnagates which being not content with their owne natural Princes gouernment séek to bring in againe that and like forrein authoritie which those Statutes made prouision against but these things I leaue to the reuerend Iudges of the land and others that are skilfull in that profession onely wishing that some which haue most insight into these matters would adde some light vnto them that men might not stumble at them and fall into the daunger of them vnawares but now to Prohibitions A Prohibition is a commaundement sent out of some of the Kings higher Courts of Records where Prohibitions haue bin vsed to be graunted in the Kings name sealed with the seale of that Court and subscribed with the Teste of the chiefe Iudge or Iustice of the Court from whence the said Prohibition doth come at the suggestion of the Plaintife pretending himselfe to be grieued by some Ecclesiasticall or marine Iudge in not admittance of some matter or doing some other thing against his right in his or their iudiciall procéedings commaunding the said Ecclesiasticall or marine Iudge to proceed no further in that cause if they haue sent out any censure Ecclesiasticall or Marine against the plaintife they recall it and loose him from the same vnder paine of the Kings high indignation vpon pretence that the same cause doth not belong to the Ecclesiasticall or Marine Iudge but is of the temporall cognisance and doth appertaine to the Crowne and dignitie Prohibitions some are Prohibitions of Law some other are Prohibitions of fact Prohibitions of Law are those which are set downe by any Law or Statute of this Land whereby Ecclesiasticall Courts are interdicted to deale in the matters therein contained such as are all those things which are expressed in the kings Prohibition as are also those which are mencioned by the second of Edward the sixt where Iudges Ecclesiasticall C. 13. 2. Edw. 6. are forbid to hold plea of any matter contrarie to the effect intent or meaning of the statute of W. 2. Capite 3. The statute of Articuli Cleri Circumspecte agatis Sylua Cedua the treaties De Regia Prohibitione the Statute Anno 1. Edwardi 3. Capite 10. or oght else wherein the Kings Court ought to haue Iurisdiction Prohibitions of fact are such which haue no precise word or letter of Law or Statute for them as haue the other but are raised vp by argument out of the wit of the Deuiser These for the most part are méere quirks and subtilties of law and therfore ought to haue no more fauour in any wise honourable or well ordered Consistorie than the equity of the cause it selfe doth deserue for such manner of shifts for the most part bréed nought else but matter of vexation and haue no other commendable end in them though they pretend the right of the Kings Court as those other Prohibitions of the law doe but the Kings right is not to be supposed by imagination but is to be made plaine by demonstration and so both the Statute of the 18. of Edward the third Capite 5. is where it is prouided no Prohibition shall goe out but where the King hath the cognisance and of right ought to haue and also by the forenamed Statute of Edward the sixt which forbids that any Prohibition shall bee graunted out but vpon sight of the libell and other warie circumstances in the said Statute expressed by which it is to bee intended the meaning of the Lawgiuers was not that euery idle suggestion of euery Attorney should bréed a Prohibition but such onely should bee graunted as the Iudge in his wisdome should thinke worthy of that fauour and of right and equitie did deserue it although as I must déeds confesse the Statute is defectiue in this behalfe for to exact any such precise examination of him in these cases as it is also in other points and is almost the generall imperfection of all statutes that are made vpon Ecclesiasticall causes but I feare me as emulation betwéene the two lawes in the beginning brought in these multitudes of Prohibitions either against or beside law so the gaine they bring vnto the Temporall Courts maintaineth them which also makes the Iudges they cesse not costs and damages in cases of of Consultation although the statute precisely requires their assent and and assignement therin because they would not feare other men from suing out of Prohibitions and pursuing of the same The Prohibitions of the law as haue beene before shewed are neither many nor much repined at because they containe a necessarie distinction betwéene Iurisdiction and Iurisdiction and imply the kings right and subiectes benefit but the
his credit salued by recompence in money as the Iudge or Iurie vpon proofe of his worth and place shall esteeme it and tax it In these Actions he that sued ad publicam vindictam and had followed it so far as that he had brought it to a Recantation or a publicke disgrace could not haue recompence of his credit by money saue onely in case of commutation neither hee that had got his credit valued by money could haue a publike disgrace also inflicted for his satisfaction but what way he had chosen with that he must haue rested contented for that irèful mens wraths otherwise would neuer haue bin satisfied the prosecution of these actions otherwise wold be cōfounded These two kinds of procéedings the Princes and Sages of former ages seeme to haue sorted to the two kindes of Iurisdiction that are amongst vs the one Spirituall the other Temporall and therefore the Law of the Land it selfe saith in a cause of Diffamation when money is not demanded but a thing done for punishment of sin which is all one as when the Ciuilians say when it is done ad publicam vindictā it shall be tried in the spiritual courts wherupon by argument of cōtrary sense it followeth that where the punishment of sin is not required but amends in money is demanded there it is to be tried in the temporal Court for the law would that euery man should haue his remedy agréeable to reason in what sort him best liketh And therfore be the fault what it may be that the words of the Diffamation do sound vnto as long as it stāds but in words the party doth not take vpon him to iustifie the matter that is comprised vnder those words and doth séeke but for the punishment of the slanderous words only so long it is to be tryed at the Spirituall Law for the Law speaketh in generall in cases of Diffamation where punishment of sin only is required so that where a man is called Traitor Felon or Murtherer or any other crime belonging vnto the Cōmon Law being euery one of them words of great diffamation so the partie therein séeke punishment onely and not his priuat interest there the Spiritual Law is to hold plea thereof For where the Law doth not distinguish there neither ought we to distinguish but the Law hath said in general that causes of Diffamation whose prosecution is thus qualified doe belong vnto the triall of the spiritual Law and therfore euen those cases before remembred where the party followeth this kind of prosecution ought by that Law to belong vnto the Spirituall court as on the contrarie side Spiritual causes of Diffamation being propounded to a pecuniarie end ought to be ordered in a Temporall Court But where any man takes vpon him to iustifie the crime that he hath obiected there either Court is to hold plea of the crime that properly belongeth to that Court for that now no longer words are in question but matter is in tryal whether the partie diffamed hath indéed committed that offence that he is charged withall or no which can bee tried in no other Court than in that to which it doth properly appertaine And that this was the Course aunciently held in matters of diffamation betwéene the Ecclesiasticall and Common Law it is manifest by the Statute of 2. of Edward the 3. chapter 11. 2. Edw. 3. c. 11. where although the Statute taxeth the peruerse dealing of such as when they had béene indicted before the Sherifes in their Retorne after deliuered by Inquest before the Iustice of the Assise did sue the indictors in the Spiritual Court surmising against them that they had diffamed them and therefore in that case forbad the like suits for that Iustice thereby was hindered and many people were feared to indict Offenders yet that Statute plainly sheweth that in all other cases of Diffamation rising out of Temporall crimes beside this the Ecclesiasticall Law had the cognisaunce and that this was forbidden it was not for that that words of this nature could not be censured at the Ecclesiasticall Law when punishment of sin only is required but for that it was not fit that those things which had béene once ordered in one Court should be called againe to examination in another Court and therefore the generall procéeding in matters of Diffamation is not there prohibited but the particuler crossing of matters after iudgement is there reprehended So that that distinction I haue here before spoken of which taketh vpon it to determine when a case of Diffamation is of the Temporal cognisance when of the Ecclesiastical cannot here take place for that it is contrarie to the former Statute or Decrée that diuided these cases into Temporall or Ecclesiasticall cognisance by the varietie of the prosecution thereof and that it is contrarie to the auncient practise that hath confirmed this prosecution in either Court but specially in the Ecclesiasticall Court which hath still holden the triall of such Diffamations wherein sin hath béene onely sought to be punished vntill now of late that men haue stept ouer the bankes of their authoritie and confounded either Iurisdiction with the promiscuous acts one of another when as the Statute it selfe is plaine that the authors of this Statute or Decrée whethersoeuer you call it which set these bounds to either law in procéeding vpon matters of Diffamation respected not so much the qualitie of the crime vpon which the Diffamation grew as the manner of procéeding therein ayming in the one at publicke vindict which is to be sought out of the Ecclesiasticall law and in the other at priuat interest which is to be had out of the Temporall Law Neither is an Action of Diffamation a matter of so light esteeme or qualitie a mans fame or good name being in equal ballance with his life as that it should be drawne away to be attendant on any other action that is of smaller weight or importance than it selfe is for this is one of those Actions which for the speciall preheminence thereof are called Actiones praeindiciales that is such that draw smaller causes vnto them but themselues are drawne of none other but such as are like principal or greater than themselues are So that vnlesse the manner of procéeding bring these causes vnder the compasse of the common Law in such sort as I haue before shewed the coopling of them with another matter of the same Law will hardly bring them vnder the triall thereof For that there be few actions greater than it selfe is so that if the crime be Ecclesiasticall howsoeuer it toucheth a Temporall cause the tryall shall be still at the Ecclesiasticall Law And the same that I say of Diffamations rising out of Ecclesiasticall crimes I hold also to bee true in Diffamations springing out of Temporall crimes where punishment is required for the offence committed and amends in money is not demaunded vnlesse happely that grow of penance inioyned which the offender wil redéeme by
A VIEW OF THE CIVILE AND ECCLESIASTICAL LAW AND wherein the practise of them is streitned and may be relieued within this Land Written by THOMAS RIDLEY Doctor of the Ciuile Law Iura sua vnicuique professioni sunt seruanda alioqui nihil aliud erit quà m omnium ordinum confusio c. peruenit 11. q. 1. LONDON Printed for the Company of Stationers Anno. 1607. To the High and Mightie Prince IAMES by the grace of God King of great Britaine Fraunce and Ireland Defender of the Faith c. MOST gratious Soueraigne since it hath pleased your Maiestie of your Princely care towards the Church and your common wealth to take knowledge of some differences that are in Iudicature betweene your Ecclesiasticall and Ciuile Law and the Temporall Law of this Land by which ioyntly your Maiesties State is managed next after your owne most rare prouidence and the wisdom of such whom it hath pleased your Highnesse to associat vnto your selfe in the great affaires of your Kingdome I haue bin bold to offer vnto your Maiestie this simple Treatise as that which doth lay out the cause of those Differences more particulerly than any man hitherto hath expressed the same In comming to which because I doe speake for those parts of your Maiesties Laws which are lesse knowen vnto your people and esteemed no otherwise of them than they see the practise thereof to be here within your Land I haue thought good as it were in a briefe to set out the whole sum of both the Lawes to the view of the people that they may see there is more worth in those for whom I speake than was by many conceiued to be so that the profession of the Ecclesiasticall and Ciuile Law may appeare to the world neither to be ilde nor vnfit for the State so far as it hath pleased the Royall predecessors of your Highnesse to giue entertainment vnto it and your Maiestie your selfe to admit of it In al which there is no other thing sought than that such grieuances as haue bin of late offered by one Iurisdiction vnto the other and in consequence to all your subiects who follow any suits in the Ciuile or Ecclesiasticall Courts may by your Princely wisdome be considered and by your authoritie be redressed if they be found to be grieuances indeed for now as things are neither Iurisdiction knowes their owne bounds but one snatcheth from the other in maner as in a batable ground lying betweene two Kingdomes but so that the weaker euer goeth to the worse and that which is mightier preuailes against the other the professors thereof being rather willing to giue Lawes and interpretations to other than to take or admit of any against themselues For which the weaker appeales vnto your Highnesse humbly desiring your Maiesties vpright and sincere Iudgement to discerne where the wrong is and to redresse it accordingly which is a worke worthy your Maiesties high consideration For as the Land is yours so also the Sea is yours the Church is vnder your Highnesse protection as a child is vnder his Tutor so that all the Lawes therof appertaine vnto your Maiesties care and comfort alike For which not onely the whole profession of your Ecclesiasticall and Ciuile Lawyers that now are but those which shall succeed in those places for euer hereafter vnto the worlds end will praise and magnifie your Maiesties gratious fauour towards them and wee that now are will pray to God for the long and happie prosperitie of your Highnesse and your posteritie ouer vs during the continuance of this Heauen and this Earth and after the passing away therof a perpetual fruition of the new Heauen and the new Earth wherein righteousnesse onely shall dwell for euer Your Maiesties most humble and dutifull Subiect Thomas Ridley To the Reader GENTLE Reader I confesse as I meditated this Treatise vpon mine owne motion as I doe sometimes matters of other argument when my leasure serues me thereto so also I doe not set it out to the view of the world vpon mine owne motion but was desirous it should haue bin keept in sauing that I must obey where I am bound The thing that gaue me cause to this meditation was that I saw many times how meanly men esteemed of the Ciuile and Ecclesiasticall Law of this Land valuing them by the practise of so much of them as we haue among vs. And therefore I thought good although not wholy to vnfold the riches of them yet to make shew of them folded vp in such sort as Mercers make shew of their silkes and veluets laid vp in whole peeces in their shops whereby it may be seene what great varietie they haue of all these kind of wares although the goodnesse of the ware it selfe cannot be discerned because it is foulded vp Beside seeing how frequēt prohibitions are in these daies in causes of either cognisance more than haue bin in former time I thought it not vnworthy my labour to inquire and see vpon what iust grounds they are raised vp in this multitude not of any humour I haue to gaine say the lawfull proceedings of any court which I reuerēce most readily acknowledge their authoritie in all things belonging to their place but to know and search out the truth of those suggestions that giue cause vnto these prohibitions For whenas such Lawes as are written of these businesses are written indifferently as well for the one Iurisdiction as the other no man is to be offended if the one Iurisdiction finding it selfe pressed by the partial interpretation as it supposeth of the other inquire the groūd of such interpretation labour to redresse it if it may be by the right interpretation therof To the end that either Iurisdiction may reteine their owne right not the one be ouertopt by the other as it seemeth to be at this day And that in such matters as they cōceiue of their owne right as depend of no other authoritie but of the Prince alone which is the thing only that is sought in this little Treatise And therfore the Reuerend Iudges of this Land are to be intreated that they will vouchsafe an equal interpretation of these matters as well to the one Iurisdiction as the other for so it is comely for them to doe and if they doe it not the other are not so dull senced but they can perceiue it nor so daunted but that they can fly for succour vnto him to whose high place and wisdome the deciding of these differences doth of right appertaine PENELOPE is said to haue had many wooers comely in person and eloquent in speech but she respected none but her owne VLISSES Such should be the mind of a Iudge that whatsoeuer other apparance or shew of truth be offered one saying this is the true sence of the Law and another that yet the Iudge should respect none but the very true germane and genuine sence thereof indeed Which if it were religiously or indifferently obserued in euery
Kings Ecclesiasticall Courts here within the Land 111 What is a Prohibition and how many sorts are thereof 113 Of Admirall causes and in what sort they are hindered 115 Of Actions of Trouer and how far Fictions in Law are to be admitted and how far not 116. c. Wherein last Wils and Testaments are impeached 121 Of the care that Princes of this Realme haue had for the due payment of Tythes vnto the Church and the preseruing of the cognisance thereof vnto the Ecclesiasticall Courts of this Land both before the conquest and since 124 c. That the Statutes of the xxvii and xxxii of H. the viii and the 2. of Edward the vi c. 13. intended for the true paiment of Tythe and the preseruation of the triall therof vnto the Ecclesiasticall Courts are now turned to the hinderance of them both 128. c. That customes of payment of tythes are triable onely at the Ecclesiasticall courts 131. c. That the lymits and bounds of Parishes are of the Ecclesiasticall cognisance onely 135 That the clause of treble Damages in the 13. chapter 2. Edw. 6. is to be sued in the Ecclesiasticall courts only 137. That the naming of law or Statute in a statut doth not make it to be of the Temporall cognisance if the matter therof be Ecclesiasticall 139. c. How it comes to passe that when tythes were neuer clogged with custome prescription or composition vnder the Law they are clogged with the same vnder the Gospel and the causes thereof 142 Tythes anon after the dissolution of the Iewes policie were entertained by the Christians as a naturall prouision for the Ministers of the Gospell and leased out by God vnto the Iewes for the time of their policie only 142 That Charles Martell Father of King Pippin was the first that euer toke tythes from the Church and assigned them ouer to Lay men in fee and vpon what occasion 145 That to the imitation of this fact of Martell other Princes did the like euery one in his Kingdome 145 That this fact of Martel being done about the yeare 606. stood vnreuersed vntill the Lateran councell vnder Alexander Anno 1189. and that the reformation was then but in part 146 That Ecclesiasticall Iudges admit pleas in discharge of tithes and the maner of tything contrarie to the conceit that is had of them 149 Of Priuiledges and how they came in 150 That by reason of the frequence of priuiledges Statutes of Mortmaine came in 150 Of the beginning of cloistered monks in the west Church of Christendome and that the author thereof was one Benedict a Roman about the yeare 606. 153 That from Benedict and his order flowed all the rest of the orders of Religious men 153. c. That the admiration that these Religious men did breed of themselues in the head of Princes and Popes did procure appropriations of parsonages and immunities from Tiths 153 That the ouer conceit that men had of praier aboue preaching in the church was an adiuuant cause therunto 154 Whether Appropriations came first from Princes or Popes it is questionable 155 Exemptions from tythes brought in by Pope Paschall in fauour towards all sorts of Religious men 158 The same restrained by Pope Adrian and limited to the Cystertians Hospitallers Templers and the Knights of Saint Iohn of Ierusalem onely sauing to the other the Tythes of grounds laboured with their owne hands onely 159 That Innocent the third in the third Lateran Councell 1120. restrained those foure orders from immunitie of Tythes for such grounds as they should acquire after that councel which Henry the fourth imitating prouided by two Statutes of this Land against their immunitie 159 That if this reuocation of Immunitie by Innocent the third these two Acts of Henry the fourth were wel weighed they would ouerturne many of the priuiledges chalenged by the Statut of 31. H. 8. c. 13. for exemption of Monasterie Lands from Tithes 160 That Reall compositions for Tythes are the deuise of Ecclesiasticall Lawyers and are to be tried by the Ecclesiasticall Courts 160 That the curiositie of Schoolemen in their distinctions vpon Tythes haue helped forward Appropriations and Exemptions from Tythes 161 The opinion examined as concerning the quotitie of tithes whether it be Morall Ceremoniall or Iudiciall 161. c. That a Bishop being Lord of a Manor and prime founder of a Benefice could not in the first erection thereof by his owne capacitie retaine any Tythes in his hand and passe the same after in lay-fee to his tenants and so giue cause to his tenants of prescription against the parson 165 That Bishops indowments in the beginning stood not in Tythes but in finable Lands 167 That the turning of Bishops indowments into tenthes or tythes for impropriat parsonages is vnsutable to the first institution and very dangerous 168 That it had bin a worthy worke in the first reformers of Religion if they had returned to euery parish their owne parsonage and the dislike that God may seeme to haue conceiued of that 169 That tythes are a Parochian right and how Parishes in the Christian world came first to be instituted 171 That tythes of Minerals are due 174 That tythes of Turues be due 178 That the cognisance of barren heath and wast grounds belongeth to the Ecclesiasticall courts and what euery of them are 180 That the boughes of great trees are tythable and so also are the bodies but in the case of the Statute only 185 In what cases diffamatorie words belong to the Ecclesiastical and in what to the common law 191 That the suit of bastardie aswell in the principall as in the incident belongs vnto the Ecclesiasticall Law 199 The meanes to relieue the Ecclesiasticall courts 209 The right interpretation of Lawes and Statuts 209 Wherein the three Statutes for tythes may be supplied 212 What things may bee ordered by the Ciuile Law yet not prouided for by the common Law and others of like nature to those that are expressed 215 Of the necessitie of retaining the practise of the Ciuile and Ecclesiasticall law within this Land 224. c. FINIS A VIEW OF THE Ciuile and Ecclesiasticall Law also wherein it is straighted and wherein it may be relieued BEFORE I shew how necessarie it is for his Maiestie and the Realme to maintaine the Ciuile and Ecclesiasticall Law as they are now practised among vs in this Realme I will set down as it were in a briefe what the Ciuile and the Ecclesiasticall Lawes are then will I shew how farre forth they are here in vse and practise among vs thirdly wherein we are abridged and put beside the vse and possession thereof by the Common Lawe euen contrarie to the old practise thereof and the true sence and meaning of the Lawes of this Realme and the Statutes in this behalfe prouided and lastly wherein we might be relieued and admitted to the practise of many things in the Ciuile Law without preiudice to the Common Lawe and
testamentarie or due to the next of kinne or datiue all which are either to be confirmed or disposed of by the Magistrate Administrations of Tutors and Curators and how farre they are indangered by their office and wherein they are to interpose their authoritie and consent and for what actes the pupils or minors may be sued done by the tutors or curators how any may be argued to be a suspected tutor or curator and how and by whom he may be remooued if there appeare iust cause of suspition against him A Tutor is chiefly set ouer the person of the childe secondly ouer his goods but the Curator or Gardian is chiefly set ouer the goods and then ouer the person of the child children their father being dead by the order of the Iudge are to be brought vp with their mother vnlesse she hath fled vnto a second marriage which if she haue done then is he to be brought vp with some of his néerest kinne such as is knowne to be an honest man and will haue a care of his good education with whom the Iudge is to allowe him such maintenance as all his stock be not spent therein but euermore something be left against he come to full age When the time of Tutelage or curatorship is ended they are to render accompt vnto the Iudge what they haue receiued and how they haue expended the same and what residue is left and according as their proofes are either by oath or otherwise so the Iudge either alloweth or disalloweth the same If the Tutors or Curators proue bankrupt or vnable to satisfie the Pupill or Minor then lieth an action against their suerties for the satisfaction of the same and if both of them faile then lieth it against the Iudge or Magistrate if either he haue not receiued any caution at all of the Tutors or Curators or hath receiued an vnsufficient caution or vnsufficient suerties knowing them to be vnsufficient otherwise he is not to secure fortune and future cases of the child the Tutors or curators are to sell nothing of those things that are the childrens sauing such things which by kéeping cannot be kept vnlesse they haue the order or decrée of the Iudge thereunto which the Iudge is not to decrée vnlesse the child be so far in debt that it cannot be satisfied without selling some part of the other goods or there be some other like iust and necessarie cause like vnto this which may not be auoided As Minors haue curators and gouernors so also mad persons and prodigall persons are appointed to haue gouernors by law for that they can no more gouerne their owne state then the others can Prodigall persons are they that know no time nor end of spending but riot or lauish out their goods without all discretion Vnder the fift Section which compriseth in it nine bookes are conteyned last Wils and Testaments and who they be that can make the same and how many kinds thereof there be solemne or militarie and they eyther put in writing or else Nuncupatiue what is an vniust or void Will what is to be thought of those things which are found eyther to be blotted out or interlyned in a Will how Heires or Executors are to be instituted or substituted in wills and vnder what conditions they may be eyther instituted or substituted in the same What time an heire hath to deliberat after the Testators death before he proue the Will what is a military testament what priuiledges it hath how the inheritance may be eyther got or lost how Testaments are to be opened published and writ out what mens Testaments are not to be opened and published Of the punishment of such which a will being extant séeke by administration or some other like meanes to possesse the goods and of those which either forbid or compell any man to make a Will Of the power or right of Codicils of Legacies and bequests as what things may be bequeathed and what not to whom any thing may be bequeathed and of the signification of the words and things which doe appertaine vnto Legacies of yéerely and monethly legacies what time they be due in the beginning of the yeere or in the end which of them be pure and which conditionall Of the vse profit and benefit of any thing bequeathed of dwelling and workes of seruants bequeathed of Dowry bequeathed and what profit the Legatorie hath thereby Of choise or election bequeathed Of wheat wine oyle bequeathed and what is contained vnder euery of them Of ground furnished bequeathed and the instruments thereto belonging and what is to be vnderstood by that bequest Of store bequeathed in Latin called Penus what is comprised vnder that word of houshold stuffe bequeathed of education bringing vp bequeathed of gold siluer womens attire ornaments and such like bequeathed and what is to be vnderstood by euery of them how Legacies may be taken awaie Of thinges that are doubtfull in a Will and how they are to be vnderstood Of those things that are left for punishment sake in a will whether they be auaylable or otherwise Of those things which being bequeathed in a Will are counted notwithstanding as not bequeathed Of those things that are taken away from the Legatories in the will as vnworthy of them Of conditions demonstrations causes what force they haue and how they prouaile in a Will Of the Law Folcidia what it is and how men thereby are restrained for bequeathing any more then the thrée parts of their goods so that a fourth part thereof should still remainewith the heire if any man had receiued in Legacie more then he might by the law Folcidia that he should put in band to restore that if any vnknowen debt after should appeare so the same were true debt at what day a Legacie becomes due that is streight from the death of the Testator vnlesse it be left to be paied vpon a certaine or vncertain day or vnder a condition and that the heire enter into band to pay the legacie when the day comes or the condition happen and if he refuse to do it then the legatorie to be put in possession therof vntill the day or condition happen The sixt part spreading it selfe ouer seauen Bookes handleth matters of possession of goods or administration thereof not growing out of the Ciuill Law which only makes heires and giueth right of succession but out of the Pretorian Law or Law of conscience which in equitie calleth sundry to the succession of other mens goods by administration where there is no Will and in some cases where there is a Will as where the will is concealed or the Erecutor renounceth the will but if the will once appeare then the administration forthwith ceaseth In cases where Administrations are to be graunted the children of the deceased haue libertie to take it within a yeare after the death of the deceased and if they be further off of kind then they haue onely a hundred dayes
to take it in vnlesse those which are to take it are Infants mad deafe dumbe or blind in which cases there is a longer time assigned The Pretor graunted administration not only according to the tables of the Testament but many times euen against the tables of the Testament as where a childe is not disinherited in his Fathers will by plaine termes but passed ouer with silence onely as not remembred or that the childe was not borne at the time of his death so not knowne whether any such childe weare liuing or to be hoped for or not In which case if it doe after appeare the Mother is put in possession of that which is the childes part If there appeare no Will the Administration is committed in this order First the children of the deceased are admitted Secondly those that are next of kind in the Male line Thirdly those that are next of kind in the Female line which difference notwithstanding betweene Male Female at this day is taken away and they that are next of kind are equally admitted of their sex Lastly comes those which haue right thereto either in that they are man or wife The Law sundry times where a thing is done or intended to be done against an other mans right and there is no prouision for it in Law yéeldeth the partie grieued an Interdict or Iniunction to hinder that which was intended to his preiudice As where one buyldeth an house contrarie to the vsuall and receiued forme of buylding to the iniurie of his neyghbour there lyeth an Iniunction de noui operis nunciatione which being once serued the offender is eyther to desist from his worke or to put in suerties he shall pull it downe agayne if he doe not within a verie short time auow the lawfulnes thereof Againe there lyeth an Iniunction where hurt is not yet done but feared to be done as where a house is ruinous or the eues or any outcast worke thereof hangeth dangerously ouer the way so that it is doubted it will fall and hurt some that passe by the owner or Lord thereof is to put in suertie to the Magistrate that if any be hurt or miscarrie thereby he shall answere for it If any cause the water of the ryuer or raine water to run an other course than before time it was wont to doe and that the neighbours are like to be preiudiced thereby the Law yeeldeth an Iniunction eyther to staie the worke that is intended or to secure the neyghbours for the hurt that is like to follow thereupon If Customers Collectors or Tolle-gatherers exact more subsidie or other like publike dueries then by Law they ought or distraine any mans goods vpon pretense thereof or staie in their hand such dueties as they haue receyued whereby the partie that hath paied it falleth into any forfeyture or that they repaire not the publike high wayes in which respect subsidies tributes and other such like dueties are giuen to Princes they are to be punished in the double value of that which they haue receiued and otherwise to be fined for their ill dealing in that behalfe In giftes which are purely giuen or vnder a day or condition and specially in those that are giuen in contemplation of death which are compared to Legacies themselues a right passeth without deliuerance and giueth sufficient matter of challenge vnto him to whom they are giuen The meanes or waies whereby the Lordship or right of any thing is gotten be it naturall as by the first occupying the same by finding the same by bringing it into a forme or fashion by gayning by the sea or ryuer by deliuerie or such like or be it by ciuill meanes as by getting the possession of any thing by good title and good faith so long as it will make a iust vsurpation or prescription by holding it as heire by holding it by a gift by taking it vp as a thing forsaken by holding it by legacie dowrie or inheritance by comming to it by sentence definitiue or interlocutory by confession of the aduersarie by cession of the partie by aucthoritie of the Iudge and the same haue béen fraudulently alienated by the debtors there lieth an Iniunction to put the partie iniured into possession All Iniunctions for the most part are prohibitorie and serue either to get or to kéepe or to recouer possession and are called commonly by the first name of the writ as where one is denyed the possession of inheritance belonging to him an Iniunction is graunted him to put him in possession called Quorum bonorum or if it be for a legacie Quod legatorum and if it be in generall cases Ne vis fiat ei qui in possessionem missus est That he that hath gotten the custodie of the Will exhibite it That no priuat buylding or such like be set vp in a holie and sanctified place and if it be that it be puld downe againe That no Nusance be done in publike places or high wayes other then such as by the Law are allowable That publike high wayes be repaired That nothing be done in any Riuer or the banckes thereof whereby Ships or Barkes may not passe thereon That nothing be done in any common streame whereby the water should be forced to run otherwise this yeare then it did the last Sommer afore That it may be lawfull for euery man to sayle or rowe in any publike streame That the bankes of the ryuer bée repayred Of force and force armed where two are in possession of one thing and neyther of them came by the same by force or by secret slight or by sufferance of an other there lyeth an Iniunction for continuance of either of their possession called vti possidetis That a man may vse such priuat way as he hath vsed the yeare past and repayre the same without interruption of an other That no man turne away the daily running water or the water which fals in Sommer from an other mans house or ground to his hinderance That water courses in ryuers and other like places be maintained That such as haue right to draw water out of any spring or well be not forbid the vse thereof and that euery one haue frée libertie to cleanse purge and to repaire the same if there be any decay in it That no man be forbid to scoure purge or clense his priuies sincks or vaults That whatsoeuer is done by open force or secret subtilty be restored into place it was before such force or subtilty was done vnlesse the partie grieued release the same That he that holdes any thing at an other mans will restore the same vpon competent warning or knowledge giuen him thereof That a man may lop or cut the boughes of an other mans trée annoying his ground if after warning giuen thereof the owner thereof do not reforme it That it be lawful for a man to gather such fruits of his as fall from his owne trée into an other mans ground without any trespas
daies after Sentence giuen or within ten daies after the Notice is come to the partie against whom the Sentence did passe vnlesse there attend thereon a continuall griefe in which case a man may appeale so long as the griefe indures the time to aske Dunissorie Letters is thirtie daies from the Sentence giuen the time to present the same to the Iudge is at the discretion of the Iudge from whom the time of prosecuting the same is a yeare or vpon iust cause two yeares in which time if the sute bee not ended the cause is deserted and to be sent back vnto the Iudge from whom the Appeale was first made while the Appeale hangeth nothing is to be innouated because by the Appeale the Iudges hands are as it were bound but if the former Sentence were void by law as in sundry cases they are then there néedeth no Appeale for such Sentences neuer passe into a case Iudged Appeales in criminall cases cannot be iustified by a Proctor but it is otherwise in Ciuile causes An Appeale in one cause doth not exempt the partie appellant from his own Iudge in other causes If the appellant die during the time of the Appeale and leaue no heire behind him the Appeale ceaseth but if he leaue an heir behind him the matter of the Appeale concernes none but himselfe he is not to be compelled to follow it for euerie one may renounce his owne suite but if it concerne the Exchequer or any other bodie then may hee be compelled to follow it The Exchequer is the Princes Treasurie and the patrimonie of the common wealth and hath many singuler prerogatiues which priuat men haue not Such as are taken captiue by the enemy become their seruants who haue taken them vnlesse eyther they escape home againe themselues or be ransomed by their friendes in both which cases they recouer all right and priuiledges they had in their owne common wealth before By the Law all Subiects whatsoeuer are bound to serue the common wealth in warre insomuch that if any being prest withdraw himselfe or his child from it he is to be counted as a rebell and for his punishment is to be banished and mulcted or fined in the greatest part of his goods As the priuiledges and rewards of Souldiors were many to incorage them to vertue and manhood so their shames and punishments were great to feare them from cowardice and vice But among the rest of the priuiledges of Souldiors the old Souldiors were the greatest Of Subiects some dwelt in Shires and liued after their owne Lawes and yet neuerthelesse were made partakers of the honors of the Citie some other were inhabitants onely in the common wealth and had onely a house in the same place to dwell in and had no right to beare office some other were straungers brought in which were ruled by the Law of them among whom they dwelt Amongst those that dwelt in Shires the chiefest Magistrate was he whom they called Decurio who was not sent by the people of Rome thither for he was a Magistrate of Magistrates but elected by the people there and his office was to kéepe the treasurie of the Countrey to prouide victuall exact tribute and gouerne the state there in maner as our Shirifes doe here His office was onely annuall least by libertie and lust of gouernment and continuance thereof it might grow into a tyrannie Such as are Subiects are to serue the common wealth in such offices places and seruices as their abilitie is fit for and the necessitie of the common wealth requires The seruices of the Common wealth were of thrée sorts Patrimoniall such as belong to euery mans patrimony to performe which stood chiefly vpon payments and charges which were to go out of euery mans inheritance towards the performance of such burthen as lay vpon him by law custome or commaund of him that had power thereto Personall which were to be performed by the care and industrie of the partie and his corporall labour without expence of his purse Mixt which required both care of the mind and labour of the bodie and expence of the purse and are imposed aswell in consideration of the thing as the person which euery subiect is to vndergo vnlesse by the Law or by the indulgence of the Prince they are excused as some are excused by reason of olde age some by yong age some for their dignitie some for their calling some for their state of bodie some for that they serue in the necessarie seruices of the Common wealth at home or abrode as Imbassadors doe some for that they are necessary places of seruices for Gods Religion as cathedrall Churches other Churches are some for that they are good and necessarie places for Seminaries for the Common wealth for learning and such other imployments as Colledges Societies and Schooles of learnings and nurture are Legates and Imbassadors had immunitie from all publike seruices not only the time of their embassage but also two yeare after their returne They were called Legates in that they were chosen as fit men out of many their person was sacred both at home and abrode so that no man might lay violent hands on them without breach of the Law of Nations Such as are Magistrats of cities ought so to gouerne that no negligence may be iustly imputed vnto them otherwise they are to answere it and that when their office is expyred they giue vp a iust accompt both of what they haue receiued what they haue laied out pay in the residue if there be any Gouernors of Cities together with the consent of the Burgesses therof may set downe such orders and decrées as are for the benefit well ordering thereof which are to be obserued of all those which are Inhabitants therof and being once wel and duely set downe are not to be reuersed but to the good of the Citie or Comminalty New publike works such as are good for the Common weale euery one may make without the leaue of the Prince vnlesse it be done for emulation or cause of discord but for old works in which stands the securitie of the Common wealth as Castles towers gates and wals of Cities nothing is to be done or innouated in them without the Princes warrant neyther is it lawfull for any man to graue his name in any publike work vnles it be his at whose cost the work is done Faires are authorized by Princes only are inuented for trade of marchandize vttering of wares which Countrymen haue cause to buy or sell and haue their priuileges that no man in any Faire can be arrested for any priuat debt they are called Nundinae therupon that euery ninth day they were holden either in one place or other He that for x. yeares space intermitteth to vse his Fayre loseth the priuiledge therof If any make any promise to a Citie or Common wealth to do any thing vpon certain cause as that he might be made Consul or that
man more than for 30. yeares or 3. liues vnlesse eyther the houses be so ruynated that they cannot be repayred without great charges of the Church or other religious houses or that it be ouercharged with any debts or dueties belonging to the Exchequer and thereby there commeth small reuenue to the Church or Religious place thereout in euery of which cases it is lawfull to let out the same for euer reseruing a yearely competent rent other acknowledgements of other souerainties therein That the holie vessels of the Church be not sold away vnlesse it be for the ransoming of Prisoners or that the Church be in debt in which case if they haue more holy vessels than are necessary for the seruice of the Church they may sell those which are superfluous to any other Church that néedeth them or otherwise dispose of them at their pleasure for the benefit of the Church or other holy place whose they are Where Vsurie in processe of time doth double the principall there Vsurie for the time to come doth cease and those particuler payments which afterwards do follow are reckoned in the principall What kind of men are to be chosen Bishops such as are sound in faith of honest life conuersation and are learned that such as choose them sweare before the choice they shall neyther choose any for any reward promise friendship or any other sinister cause whatsoeuer but for his worthynesse and good parts only That none be ordeined by Symonie and if there be that both the giuer taker and mediator thereof be punished according to the Ecclesiasticall Lawes and they all made vnworthie to hold or inioy any Ecclesiasticall liuing hereafter That if any at the time of any Bishops election obiect any thing against him that is to be elected the election be staid till proofe be made of that which is obiected by the aduersarie against the partie elected so that he prooue the same within 3. Moneths and if any procéeding be to the consecration of of the same Bishop in the meane time it is void That the Bishop after he is ordeyned may with out any danger of Law giue or consecrate his goods to the vse of the Church where he is made Bishop and that he may giue such fées as are due to the electors by Law or custome That Clerks be not compelled to vndergoe personall functions and seruices of the common wealth and that they busie not themselues in seculer affaires so thereby be drawen from theyr spirituall function That Bishops for no matter or cause be drawen before a temporall Iudge without the Kings speciall commaundement and if any Iudge presume to cal any without such speciall warrant the same is to loose his office and to be banished therefore That no Bishop absent himselfe from his Dioces without vrgent occasion or that he be sent for by the Prince and if any doe absent himselfe aboue one yeare that he shall lack the profit of his Bishopricke and be deposed from the same if he retorne not againe within a competent time appointed for the same What manner of men are to be made Clerks such as are learned are 〈◊〉 good Religion of honest life conuersation and are frée from suspition of incontinency that no Minister be lesse then 35. yeares of age and that no Deacon or Subdeacon be vnder 25. that all Clerks and Ministers be ordeyned fréely If any build a Church and indow the same that he may present a Clerk thereto so that he be worthy to be admitted therto but if he present an vnworthy man then it appertaineth to the Bishop to place a worthy man therein If any Clerke be conuicted to haue sworne falsely he is to be depriued his office and further to be punished at the discretion of the Bishop That Clerks be conuented before their owne Bishops and if the parties litigant stand to the B. order the Ciuill Iudge shal put it in execution but if they agrée not vpon the iudgement then the Ciuill Iudge is to examine it eyther to confirme or infirme the B. order if he confirme it then the order to stand if not then the party grieued to appeal If the cause be criminall and the Bishop find the party guiltie then the Bishop is to degrade him and after to giue him ouer to the seculer power the like course is to be held if the cause be first examined before the temporall Iudge and the partie found guiltie for then he shall be sent to the Bishop to be depriued and after againe shall be deliuered to the seculer powers to be punished That Bishops be conuented before their Metropolitans That such as in Seruice time do abuse or iniure the Bishop or any Clerk in the Church being at diuine Seruice be whipt and sent into banishment But if they trouble thereby the diuine Seruice it selfe they are to dye the death for the same That Lay men are not to say or celebrate diuine Seruice without the presence of the Minister and other Clerkes thereto required That such as goe to Law sweare in the beginning of the suit that they haue neyther promised or will giue oght to the Iudge and that vsuall fées be taken by the Aduocates Counsellers Procters or Attournies if any man take more than his ordinary fées he shall be put from his place of practise and forfeit the foure double of that he hath taken That the 4. generall Councels be holden as a Law and that which is decréed in them That the B. of Rome hath the first place of sitting in all assemblies and then the B. of Constantinople That all Clergie mens possessions be discharged from all ordinary and extraordinary payments sauing from the repairing of Bridges and High wayes where the said possessions do lye That no man buyld a Church or holy place without the leaue of the B. and before the Bishop there say Seruice and set vp the signe of the Crosse That no man in his owne house suffer Seruice to be said but by a Minister allowed by the Bishop vnder 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 paied to the Church where the Testator dwelled If any deuise by his last Will a Chappell or Hospitall to be made the Bishop is to compell the Executors to performe it within fiue yeares after the decease of the Testator and if the Testator name any gouernor or poore thereto they are to be admitted vnlesse the Bishop shall find them vnfit for the roome That the Bishop sée such Legacies performed as either are giuen for the redemption of Prisoners or for other godly vses That Masters of Hospitals make an accompt of their charge in such sort as Tutors doe That such as lust against nature and so become brutish receiue condigne punishment worthy their wickednesse That such as
money in liew thereof Although this Tenure by the first creation thereof be perpetuall yet that the soueraignty thereof should not still remaine vnprofitable to the first Lord the whole benefyt thereof going continually to the vassall or tenant it is prouided that the Soueraigne or chiefe Lord the first yeare the heyre or Successor of the vassall comes vnto his land shall haue the whole reuenue of his liuelihood for that yeare or a certeine summe of money in token of the retorne thereof vnto the Lord and the redemption thereof made againe by the tenant which by the Law of the Nouels is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is well nigh the same that we call liuery which euery heire that holdeth in Knights seruice sueth out before he take possession of his land as heire to his ancesters This Tenure is got eyther by Inuestiture or by Succession Inuestiture is the same that we call Creation and is the primier grant of a feude or tenure to any with al rights and solemnities thereto belonging wherein the homager or feodatarie for the most part vpon his knées promiseth faith and allegeance vnder a solemne oath vnto his Lord and his successors Succession is whereby the eldest sonne succéedeth the father in his inheritance and if he faile and haue no issue then the next brother and so in order successiuely and if there be no sonne then the next heire male and if their bée no heyre male then the land escheats vnto the Lord. For the Lumbards from whom the feudes first came or at the least were chiefly deriued from them directing all their policie as the Lacedemons did to matters of warre had no seminine feudes among them but after by processe of time there were created aswell Feminine feuds as Masculine feuds insomuch as where there was no issue male to put them from it women did succéed in the inheritance Of Feuds some are regall some not regall Regall are those which are giuen by the prince only neither doe belong to any inferior to giue Of these some are Ecclesiasticall as Archbishopricks Bishopricks and such like Others are Ciuile or Temporall as Dukedomes Earledomes Vicounts and Lords who by that are distinguished from the rest of the people that they haue the conducting of the Princes Armie at home and abroad if they be thereto appointed and haue right of Peeres in making of Lawes in matters of triall and such other like businesses Not Regall are those which hold not immediatly of the Prince but are holden of such Ecclesiasticall or Ciuile States which haue had their Honours immediatly from the Prince Besides of Feuds some are Liege others not Liege Liege Feuds are they in the which the vassall or feodatorie promiseth absolute fealtie or faith to his Lord against all men without exception of the King himselfe or any other more auncient Lord to whom besids he oweth alleagance or seruice Of this sort there is none in this Realme of England but such as are made to the King himselfe as appeareth by Littleton in the title of Homage wherein is specially excepted the faith which the Homager oweth to his Lord the King Feuds not Liege are such wherin Homage is done with speciall reseruation of his faith and alleageance to the prince and Soueraigne Of such as are Vassals or Liege men some are called Valuasores maiores others Valuasores minores Valuasores maiores are such as hold great places of the State vnder the Emperour or King as are the degrées of Honour before named and are called Péeres of the Land which only giues Nobilitie Valuasores minores are those which are no Péers of the Land and yet haue a preheminence aboue the people and are as it were in a middle Region betwéene the people and the Nobilitie such as are Knights Squires and Gentlemen The Feuds are lost by sundry waies by default of issue of him to whom it was first giuen which they call Apertura feodi by surrender therof which by them is termed Refutatio feodi by forfaiture and that was in two sorts either by not doing the seruice that his tenure did require or by committing some villenous act against his Lord as in conspiring his Soueraignes death defiling his bed or deflowring his daughter or some other like act treacherous to his Lord and vnworthy of himselfe And so much of the Ciuile Law and the Bookes thereunto pertaining Now it followeth I doe in like order speake of the Canon Law which is more hardly thought vpon among the people for that the subiect thereof in many points is of many grosse and superstitious matters vsed in the time of Papistrie as of the Masse and such other like trumperie and yet there are in it beside many things of great wisdome and euen those matters of superstition themselues being in a generalitie well applyed to the true seruice of God may haue a good vse and vnderstanding The Canon Law hath his name of the Gréeke word Canon which in English is a Rule because it leads a man straight neither drawes him to the one side or the other but rather correcteth that which is out of Leuill and Lyne The Canon Law consisteth partly of certaine Rules taken out of the holy Scripture partly of the writings of the auncient fathers of the Church partly of the ordinances of general prouincial Councels partly of the Decrees of Popes of formerages Of the Canon Law there are two principall parts the Decrées and the Decretals The Decrées are Ecclesiasticall constitutions made by the Pope and Cardinals at no mans suite and are either Rules taken out of the Scripture or Sentences out of the auncient Fathers or Decrées of Councels The Decrees were first gathered together by Ivo Bishop of Carnat about the yeare of our Lord God but afterward polished and perfected by Gratian a monke of the order of Saint Bennets in the yeare 1149. and allowed by Eugenius the Pope whose Confessor hee was to bee read in Schooles and to bee alledged for Law Of all the seuerall volumes of the Canon Law the Decrées are the auncientest as hauing their beginning from the time of Constantine the great the first Christian Emperour of Rome who first gaue leaue to the Christians fréely to assemble themselues together and to make wholsome lawes for the well gouernment of the Church The Decrées are diuided into thrée parts wherof the first teacheth of the origen and beginning of the Canon law and describeth and setteth out the rights dignities degrées of ecclesiasticall persons and the manner of their elections ordinations and offices and standeth of one hundred and ten distinctions The second part setteth out the causes questions and answeres of this Law which are in number 36. and are full of great varietie wisdom and delight The third and last part containeth matter of consecration of all sacred things as of Churches bread and wine in the Sacrament what daies and Feasts the Primitiue Church vsed for the receiuing thereof of
be light with vs for by what laws their leagues and negotiations are to bee directed by the same must ours bee ordered so that for that point one kind of learning must serue for both for that otherwise one Nation will not bee conceiued by the other what their capitulations are Surely such as ouer and besids their owne experience haue the knowledge of the Ciuile law haue herein a double helpe aboue another man that wanteth the same First their owne vnderstanding which for the most part is of like proportion as other folkes is Then the skill of the law it selfe which is a quintessence of wit aboue other humane learning as being either wholy composed of the mature and deliberate resolutions of such Emperours as then swayed the whole world or were the domes and iudgements of such wise men as then managed the whole world and the affaires thereof vnder them But who when hee seeth a sword in a scaberd knoweth whether it will cut or not although the forme thereof bee a presumption that it will cut but doe but drawe it out of the scaberd and try the blade thereof and then shall you see the sharpensse of it I make no application hereof for that my meaning by my words may be well inough knowne But in these matters the wisdome of the State knowes best what is to bee done and I onely remember what other Nations doe leauing the rest to their grauest considerations who by precedents of former times and men of experience furnished with exoticke tongues haue carried this part of policie verie well and safely hitherto but now to the ordering of Martiall causes Martiall causes are either Ciuile or Criminall whereof both are determinable by the Ciuile law A Ciuile Martiall cause is where either the Captaine or the Soldier requireth some thing that is due withholden from him as his stipend his apparell which among the Romanes was due twice a yeare that is for Sommer apparell from the first day of April to the first of September and their Winter againe from thence to Aprill his dyet which among the Romans was two daies hard bisket the third softer bread one day wine one other day vineger one day bacon and two daies mutton his priuiledges either in cases of preferment as to be remoued from one degrée to another or in cases of immunitie as ff de re militari C. eod tit lib. 12. ff de priuilegio veteranorū de castrensi peculio C. eodem tit lib. 12. C. de erogatione militaris annone C. de vest militari to be freed from all seruile functions and sundry other like which a diligent reader may gather out of the titles of the Digest and Code of militarie affaires and other like titles which accompany them Soldiours faults are either proper to themselues or common with others Those are common with others which fall into other men and are corrected with like ordinarie procéeding as other crimes of like nature are as manslaughter theft adulterie and such like Those are proper which doe properly appertaine to militarie discipline and are punished by some vnusuall or extraordinarie punishmēt as are these not to appeare at Musters to serue vnder him he ought not to serue to vage or wander long from the Tents although he returne on his owne head to forsake his Colours or his Captaine to leaue his standing to fly ouer to the Enemy to vtter the councell of the Armie vnto the Enemy to betray the Hoast to be disobedient to his Captaine Coronell or Lieutenant to loose or sell his Armour or to steale an other mans to be negligent in forage or prouiding of victuall to neglect his watch to make a mutiny or fly first out of the field or other like which are deliuered in the late cited titles of whom Arrian who wrote the life of Alexander the great thus saith Euery thing is coūted an offence in a Souldiour which is done contrarie to the common discipline as to be negligent to be stubborne to bee slothfull The punishments wherwith Soldiers are corrected are these either corporall punishment or a pecuniarie mulct or iniunction of some seruice to be done or amotion or remouing out of their places and sending away with shame By capital punishmēt is vnderstood for the most part death or at the least beating vnlesse happily it bee pardoned either for the vnskilfulnesse of the soldior or for the mutinie of the companie being thereto drawen by wine and wantonnesse or for the miseration or pitty of the party offending All which a wise Iudge moderateth according to the qualitie of the person the quantitie of the crime and the opportunitie of the time The last extraordinary matter that the Ciuile Law Iudge dealeth in is the bearing of Armes and the ranging of euery man into his roome of honor according as his place requires and here first of Armes For skill in Armory although it be a thing now almost proper to the Herauldes of Armes who were in olde time called Feciales or Caduceatores because they were messengers of war and peace eyther to proclaime the one or denounce the other yet the ground thereof they haue from the Ciuile Law so that thereby to this day they may be directed in their skill or controled if they doe amisse For besides that there are many other places in the Law C. vt nemo priuaetus praedijs suis vel alienis vela regia imponat vt nemini liceat sine Iud. author signaimponere c. De statuis imaginib vt nemini liceat signum saluatoris c. De hi◠qui potentiori◠nomine titulos praedijs suis affigunt ibi dect ff de rerū diuisio l. sanctum which touch Armory as appeareth by the titles here quoted in the margent Barthol himselfe maketh a speciall tractat thereof and diuideth the whole matter of Armes into 3. rancks according to the diuerse sorts of men that bare them for some are Armes of some publike dignitie and office as the Armes of the Legat or Proconsull the Armes of Bishops the Armes of the Lord Admirall other are Armes of speciall dignities as Armes of Kings and Princes which no man is to beare or paint in his house or stuffe vnlesse it be for to shew his duetie or subiection therein The third sort is of those which are priuat mens Armes of whom part haue them by the grant of the Prince or by authoritie of those to whom the Prince hath giuen power to grant Armes to other as hath the Earle Marshall within this Realme of England others haue taken them by their owne authoritie which albeit in former times they might doe as also they might take such names as euery one did C. de ingenuis manumiss l. ad recognoscenda ff de rerū diuisione l. sanctum like of for names and signes in the beginning were inuented for to know and to discerne one man from an other and as euery
Nephew And thus much of succession of kings wherein the eldest among Males hath the prerogatiue and the like in Females if there be no Male for that a Kingdom is a dignitie vndiuisible and can come but to one bee hee Male or Female for that otherwise great gouernments would soone come to small Rules and Territories And the like that is said of Kingdoms is to be held of all Dignities vnder Kingdomes where the eldest son is to bee preferred before all his other brethren and they successiuely one before another if there be no issue left of them that goe before and the Male line is to be preferred before the Feminine and the Feminine before all the rest of the kindred so it be not a Masculine Feud and the same intailed vpon the heire Male. And thus far as concerning the matters wherein the Ciuile Law dealeth directly or incidently within this Realme Now it followeth to shew how much of all those titles of the Canon Law which haue bin before set downe are here in practise among vs. Of those Titles of the Canon Law which before haue béene recited some are out of vse here with vs in the singular or Indiuiduum by reason of the grosse Idolatry they did containe in them as the Title of the authoritie and vse of the Pal the title of the Masse the title of Reliques the worship of Saints the title of Monks and Regular Canons the title of the kéeping of the Eucharist and Creame such other of like qualitie but yet are retained in the generall for in stead of them there are substituted in their places holy worships tending to the like end of godlinesse those other did pretend but void of those superstitious meanes the other thought to please God by and so in stead of the Masse hath come in the holy Communion and in place of worshipping of Saints hath succeeded a godly remembrance and glorifying of God in his Saints and so of the rest whereof there is any right vse within the Church Some other are out of vse as well among the Ciuile as Criminall titles because the matter that is therein treated of is knowne notoriously to belong to the conusance of the Common Law at this day as the titles of Buying and Selling of Leasing Letting and taking to Farme of Morgaging and pledging of Giuing by déed of gift of Detecting of Collusion and Cosenage of Murder of Theft and receiuing of Théeues and such like And yet I doubt not but euen these matters as well Ciuile as Criminall or most of them were aunciently in practise and allowed in Bishops Courts in this Land among Clerkes to the which I am induced by three reasons First that I find not only the forraine Authors of the Decretals but also the domesticall Authors of the Legantines being all most excellent wise men as the Stories of their seuerall ages do report to haue inacted these seuerall constitutions and to haue inserted them not onely in the bodie of the Canon Law but also in the bodie of the Ecclesiasticall Lawes of this Land and that some wise men sundry years after their ages did write and comment vpon the same as things expedient and profitable for the vse of the Church and the gouernment of the Clergie in those daies neither of which I doe presume they would haue done if in those ages there had not béene good vse and frée practise of them Secondly that I find in the Code of Iustinian by sundry Laws some of his own making some other of other Emperors before his time euen from the daies of Constantine the great bishops in their Episcopall audience had the practise of these matters as wel Criminal as Ciuile and to that end had they their Officials or Chauncellors whom the Law calleth Ecclesiecdici or Episcoporum Ecdici that is Church Lawyers or Bishops Lawyers men trained vp in the Ciuile and Canon Law of those ages to direct them in matters of Iudgement as well in Ecclesiasticall Criminall matters as Ecclesiasticall Ciuile matters And that these which now are Bishops Chauncellers are the verie selfe same persons in Office that aunciently exercised Ecclesiasticall Iurisdiction vnder Bishops and were called Ecclesiecdici it may appeare by that which Papias an old auncient Historiographer cited by Gothofred in his Annotations vpon the foresaid Law Omnem in the Code and title de Episcopis and Clericis and vpon the § Praeterea writeth of them who saith thus that Ecclesiecdici or Ecdici were those that were ayders and assisters to the Bishops in their Iurisdictions not astrict or bound to one place but euery where through the whole Diocesse supplying the absence of the Bishop which is the very right description of the Bishops Chauncellers that now are who for that they carrie the Bishops authoritie with them euery where for matters of Iurisdiction and that the Bishop and they make but one Consistorie are called the Bishops Vicars generall both in respect their authoritie stretcheth it selfe throughout the whole Diocesse also to distinguish them from the Commissaries of Bishoppes whose authoritie is onely in some certaine place of the Diocesse and some certaine causes of the Iurisdiction limitted vnto them by the bishops and therefore are called by the Law Iudices or Officiales foranei as if you would Clem 2. ca. foraneos de rescript say Officiales astricti cuidam foro diocesis tantum So that it is a very méere conceit that a certaine gentleman very learned and eloquent of late hath written that Chauncellers are men but of late vpstart in the world and that the sloth of bishops hath brought in Chauncelors wheras in very déed Chauncellers are equall or néere equall in time to Bishops themselues as both the Law it selfe and Stories do shew yea Chauncellers are so necessarie Baldus l. aliquando ff de officio Proconsulis officers to Bishops that euery Bishop must of necessitie haue a Chaunceller and if any Bishop would séeme to be compleat within himselfe that he néeded not a Chaunceller yet may the Archbishop of the Prouince wherein he is compell Couar lib. 3. variarum resolut c. 20. num 4. S. Brâ—zâ— lâ—b 1. de vicaâ—â—o 〈◊〉 q. 46 nâ—m 1. 4. 12. 13. him to take a Chaunceller or if he refuse so to doe put a Chaunceller on him for that the Law doth presume it is a matter of more weight than one man is able to susteine to gouerne a whole Diocesse by himselfe alone and therefore howsoeuer the nomination of the Chaunceller be in the Bishop yet his aucthoritie comes from the Law and Hostiensis in sum made officio Vicarij numoro 2. in sine nomirationem ab 〈◊〉 potestatem vero a iure recipiuntur therefore he is no lesse accompted an Ordinary by the Law than the Bishop is But trueth it is not the sloth of the Bishops but the multitude and varietie of Ecclesiasticall causes brought them in which could not be defined by
the triall of such businesse as belongeth to one Court to pul it to another Court specially when as the Court from whence it is drawne is more fit for it both in respect of the fulnesse of knowledge that that Court hath to deale in such businesse and also of the competencie of skill that is in the Iudges and professors of those Courts correspondent to these causes more than is in the Iudges and professors of the other Courts for the deciding and determining of these matters For albeit otherwise they are very wise and sufficient men in the vnderstanding of their owne profession yet haue they small skil or knowledge in matters pertaining to the Ciuile profession for that there is nothing written in their bookes of these matters more than is to be gathered out of a few Statutes of former time whose drist was not to open any doore vnto them to enter vpon the admirall profession but to preserue the Kings Iurisdiction from the Admirall incrochment as may by the said Statutes appeare wheras contrarily the Ciuile law hath sundry titles included in the bodie thereof concerning these kind of causes whereupon the interpreters of the Law haue largely commented others haue made seuerall Tractats thereof So that by all likelihood these men are more fit and better furnished to deale in this businesse than any men of any other profession as hauing beside the strength of their owne wit other mens helps and labors to rely vpon Besides this businesse many times concerns not only our owne countrimen but also strangers who are parties to the suit who are borne and doe liue in countries ordered by the Ciuile Law wherby they may be presumed they haue more skill and better liking of that Law than they can be thought to haue of our Lawes and our procéedings and therefore it were no indifferencie to call them from the trial of that Law which they in some part know and is the Law of their country as it is almost to all Christendem beside to the tryall of a Law which they know in no part is méere forraine vnto them specially when the Princes of this Land haue aunciently allowed the Ciuile Law to bee a Common Law in these cases as well to their owne subiects as it is to strangers Further the auocating away of causes in this sort from one Iurisdiction to another specially when the cause hath long depended in the Court from whence it is called insomuch as now it is ready to sentence or rather is past sentence and stands at execution cannot be but great iniurie to the subiect after so much labour lost and money spent in waste to begin his suite a new againe which is like to Sysiphus punishment who when he hath with all his might forced his stone vp to the top of the hill and so is as himselfe hopes at an end of his labour yet the stone rowles downe againe on him and so his second labour his strength being spent with the toile of the first is more grieuous than the former was which being semblably true in a poore Clyent who hath his cause in hearing there can bee no equitie in this fiction whereby a cause so néere ended should againe bee put vpon the Anuill as though it were still rough worke and new to bee begun And surely as there is no equitie in it so there is no possibilitie such a fiction should be maintained by Law for that it hath no ground of reason to rest his féete on For if this be graunted that such a fiction by Law may be made then one of these absurdities must needs follow either that a ship may ariue in a place where no water is to carrie it or if that it ariue according to the fiction either the people their houses their wealth shall be all ouerwhelmed in the water as the world was in Noahs Floud and Deucalions Deluge and so no bodie there shall be left aliue to make any bargaine or contract with the Mariners and shipmen that arriue there or that the people that dwell there shall walke vpon the water as people doe on land which Peter himselfe was not able to doe but had suncke if Christ had not reacht his hand vnto him and therefore far lesse possible for any other man to do So that it may be wel said these things standing as they do no such fiction can hold and that no action can be framed vpon it for as there is no Obligation of impossible things so there is no Action of things that neither Nature nor Reason will afford to be done neither is it to the purpose that the maintainers of these fictions doe say that in this case the place where the contract is made is not considerable which I take to be far otherwise for that when that themselues will conuey a Marine cause from the Sea vnto the Land they will lay it to be done in some speciall place of a Countie bee the place neuer so vnproper for such an action for that the foundation of these actions is the place where they were done as namely that they were done in the bodie of such a Countie or such a Countie and not vpon the maine sea or beneath the lowest bridge that is vpon any great riuer next the sea And therefore in two emulous Iurisdictions when they are so deuided as that one is assigned the sea the other the land the place of the action can in no sort be suppressed and another supplyed in the roome thereof Quod enim vna via prohibatur alia via non est permittendum quod prohibitum est directo prohibetur etiam per obliquum for if this were graunted then matter enough would be offered to one Iurisdiction to deuour vp the other and the Law would be easily eluded which to restraine either of these Iurisdictions to their owne place and to prouide that one in his greatnesse doe not swell vp against the other hath set either of them their bounds and lymits which they shall not passe which as it is the good prouision of the Law so ought either Iurisdiction in all obedience to submit it selfe therunto for that the diminishing of either of them is a wrong to the Prince from whom they are deriued who is no lesse Lord of the Sea than he is King of the Land and therefore in no sort such libertie must bee allowed to the one directly or indirectly as that it should bee a spoyle vnto the other which would easily come to passe if when as the law alloweth not any man to sue a Marine by the ordinarie course of the lawes of this land yet a man will follow it by an extraordinarie But where there is an vniformitie of Iurisdiction as that it is all by sea or all by land there may a thing be fained to be done in one place that was done in another place without any mans preiudice for that in this case the place is not
trauersable so it be not in Criminall matters where time and place is required that the accuser doe not wander from place to place with the iniurie of the accused for howsoeuer the place and the action is altered yet the truth of the cause remaineth one and the selfe same still and so far as concerning actions of Trouer in Admirall causes Now it doth follow that I should speak of like preiudices that grow to the same by actions of Trespas but those will I passe ouer for that in so small a Treatise as this is I cannot go ouer all and therefore will I only put the Reader in mind that there are more deuises rising out of the Common Law that infest the Admiraltie than one But now to Wils and Testaments wherein they are impeached For matters of Wills and Legacies they are so proper to the triall of the Ecclesiasticall Law of this Realme as the professors of the Common Law themselues do oftentimes confesse and say they haue no more to doe therewith than the Ciuilian hath to doe with the knowledge of the matters of Franktenement and yet euen these matters of Testaments Legacies although Prohibitions be not so frequent in them as they are in the rest of Ecclesiasticall causes yet they are not quite void of them and that in some points wherein the verie life essence of a Will doth stand For whereas the auncient Romanes knowing how subiect matters of Wils are to forgerie corruption on the one side and suppression concealment on the other side to méet with all craft subtilty whatsoeuer which might seize on them did most carefully prouide that there should be seuen witnesses at the least present at the making of euery Will Testament except it were in time of some generall plague or sicknesse when so many Witnesses could not conueniently be had together for feare of infection or if it were in the Countrie where there are small multitude of people and that those witnesses should be particulerly required to that purpose with diuers other obseruations and circumstances tending all to the safe and sure making thereof which the Ecclesiasticall Law altered afterward in sundry points for that many true Wills were many times ouerthrowen for want of those precise solemnities reduced the whole number of those seuen witnesses vnto two only agreeably to the Law of God the Law of Nations where that number of witnesses is allowed as competent to prooue any matter so that the same witnesses be honest credible persons such as whose faith is not doubted of The Common Lawyers because themselues in sundry matters very dangerously many times admit one witnesse giue him full credit and that in matters of great waight importance as though all should be squared to their rule and framed to their compasse If an Ecclesiasticall Iudge in the probate of a Will contrarie to the rules of his owne Law will not admit the testimonie of one witnesse they forthwith fling out a Prohibition against him as though he had done an offence against the Crowne and dignitie in that he doth not allow those number of witnesses in the Probate of a Will that the Common Lawes of this land allow almost in euery matter For aunswere to which if I should alleage the precise forme of the Ecclesiasticall Law which to the essence of a will requireth this number of two witnesses or else holdeth it not for a Will but in cases inter liberos ad pios vsus where the only hand of the Father or Testator without witnesses serueth for a Will so the same be knowen to be the Testators owne hand or so prooued by comparison I would think to wise men I had said sufficiently but I will not rest hereupon but will conuince themselues by themselues for doe they I pray you in their owne procéedings where a Law or Statute requires more witnesses than one content themselues with one witnesse alone yea doe they not in all cases where a certeine number of witnesses are appointed to prooue a fact by Law or statute furnish the cause with so manie witnesses as the case desires or else doe they not accompt the procéeding void And will they think themselues so precisely bound to the kéeping of the letter of the Common law and will they not suffer the Ciuilian in like maner to cleane fast to the obseruation of the Ciuile Law especially when it hath the consent of the Law of God the Law of Nations and is his Maiesties Ecclesiasticall Law of this land aswell as the other is his Temporall Law of the same I confesse it may be true many times which one man saith specially when there concur therewith many great and violent presumptions and the party that reporteth it is of good credit but dangerous it is to open this gap to the malice of men for euen so many things shall be obtruded to the Iudge for trueth which are stark lyes and many things shall be pretended to be gold in shew which in proofe and practize will L. iuris urandi §. Simili modo C. de Testibus be found to be no other thing but méere drosse And therefore well decréed the Emperor Constantine that no one mans testimonie should be heard though he were neuer so great a man in Court But perhaps some man will say if credit shall not be giuen oftentimes to one mans testimonie much wickednesse will passe away vnpunished for reply to which I aunswere it is better to let a bad man scape than to punish a good and although it be true if a man may excuse himselfe by deniall no man will be found guiltie so also it is true on the other side if it be ynough to condemnation to be charged by one man alone without any other witnesses no man shall be innocent and therefore the admittance of one witnesse in causes and the procéeding thereupon to iudgement is verie dangerous An other like bar to this they lay in against Ecclesiasticall procéedings in matters of Testament whereas an Ecclesiastical Iudge prooueth a Will wherein are mannors lands tenements and other like hereditaments bequeathed challenging this also to be of the Crowne and dignity as though the Ecclesiasticall Iudge thereby tooke vpon him to decrée which lands were deuisable by will and which not or would by his probat adde a strength vnto the Will to make the deuise good or bad whereas on the contrarie part the Ecclesiasticall Iudge by this act doth only testifie that such a person made such a will that the same was prooued before himselfe vnder his Teste for his last will testament but for the validitie of the Will it selfe and the Legacies deuises therein whether they were of lands or tenements or of goods or chattels the Probat it selfe worketh nothing but leaueth that to the Law Common or Ecclesiastical according as the bequest belongeth to either of them whether it be good vailable in
al should be ended in one and the selfe same Court which would be a great ease to the subiect who to his intollerable vexation and eycessiue charges is compelled to run from Court to Court and to gather vp as it were one lim of his cause here and another there and yet happily in the end cannot make a whole and perfect body of it Beside it is a mightie disorder in a common wealth thus to iumble one Iurisdiction with another the very confusion as well of the one law as the other for as kingdomes are preserued by knowing their bounds and kéeping their lymits so also Iurisdictions are maintained and vpheld by containing themselues within the lists or banks of their authoritie Further vnlesse they will graunt there is an Ecclesiastical custome as there is a Seculer Custome and that the one is as well to be tryed in the one Court as the other is in the other they will make their owne Doctrine in the before-rehearsed Prohibition void where they certaine vs there is a Seculer Custome and if there be a Seculer custome then doubtlesse there is also an Ecclesiasticall or spirituall custome for the word Seculer is not put in that place absolutely Glos in Clem. vnâ—â—a in verbo aterna â—teâ— de summa trinit f de catholica but relatiuely and the nature of Relatiues is one to put another one to remoue another but by the Seculer custom they but the Ciuilian therfore they grant him the spirituall for of contrarie things there are contrarie reasons and contrarie effects and what that which is proposed doth worke in that which is propounded the same againe that L. Fin. § pâ—us â—â—tem de legatis 3. ibi Angel which is opposed doth worke in that which is opponed by which Rule as Temporall Lawyers are to deale in Temporall Customes and spirituall men are not to intermedle therin so also Ecclesiasticall Lawyers are to deale in Ecclesiastical causes and that temporal Lawyers are not to busie themselues thereabout And that this was the intent of the king when he first receiued the Church into his protection with all the priuiledges therof may appeare hereby that hauing vnited both the Iurisdictions in his owne person hee did not iumble them both together as now they are but kept them distinct one from the other not only in authorising the Ecclesiasticall Courts that were before but also in vsing the verie words and phrases that the Iurisdictionaries Ecclesiasticall did vse euery where in their writings euen these words whereupon men now take hold to frame Prohibitions vpon viz. according to the laudable customs vsages of the parish and places where such Tythes growe which were the words of Innocent the third in the Decretals vpon the title of Tythe long before these statuts were made or any other statuts concerning the true payment of tyths and Linwod in the same title of tithes often vseth the very selfe same words and phrases that the other doth so that if these words made no Prohibition before the statute as I think it cannot well be shewed to the contrarie neither ought they to do it now since the statute for that they are taken still in the Church businesse and not in a temporall matter whose gouernment although it be vnder one and the selfe same Prince that the Temporall state is yet is it distinct from the same as euer it hath bin since there hath bin any setled forme of Church gouernment many common 1. Corinth 5. wealth as may appear both by the example of S. Paul which neuer goeth to any temporal power to punish the incestuous person although there were sundry lawes then both in Gréeke and Latine written of these matters but doth it by the spirituall sword alone and also by that that in matters of Iar for worldly causes betwéen brother and brother he forbids such as were new Christians to go to law before 1. Corinth 6. Infidels but aduiseth them rather to appoint Iudges among themselues to decide such controuersies which albeit in those daies was ment as wel of lay Christians as of the ministers of the Gospell for that the number of them then was small and the causes of suit they had one against another were not many and might easily be ended by one and the selfe same consistorie yet when the number of the Christians increased and the Church got some rest from persecution the Iurisdiction was againe diuided and as there were Seculer Courts appointed by Princes wherin Temporal mens causes and Lay businesses were heard so there were also by the same authoritie erected Ecclesiasticall Courts and Bishops C. de episcopall audienta tâ—rtis audiences wherin either Ecclesiasticall mens causes alone or such as they had against Lay men or Lay men against them were treated of and determined So that this was no new deuise of Henry the eight or Edward his sonne that when they tooke vpon them the supremacie ouer the Church as they had before ouer the common wealth they did not mishmash both the states together and made one confused heape of them both but left them seuered as they found them only affording either of them an equall proportion of protection for that by these two parts the kings Monarchie is compleat and himselfe is the head and chiefe Gouernour of the whole and entire bodie of his Realme For this was exemplaried vnto them in all former ages since the Church and common wealth had any louing and kind cohabitation together as hath béene before remembred And therefore doe they wrong to the ashes of those kings deceased which by subtill sence and strained interpretations draw these Lawes which they intended for the benefit of the Church and Church gouernment to the ouerthrow of the same as though the Positiue Lawes of the kingdome could not stand if the Lawes of the Church continued and stood vp right Vpon the same words of the same Statute if perhaps at any time there grow any controuersie about the limits or hounds of Parishes they draw the same by like importunitie from the triall of the Ecclesiasticall Law vnto the Common Law auouching the same also to bee of the Temporall cognisance and yet Linwod who liued in the daies of Henry the fift making a Catalogue of the principall matters that in his daies belonged vnto the Ecclesiasticall Courts reckoneth the bounds of Parishes for one And very like it is it should so be for that Ecclesiasticall men first in this Kingdome made diuisions of Parishes as by our owne Cronicles it appeareth and the first practise thereof within this Realme came from Honorius the fourth Archbishop of Canterbury after Augustine who himselfe died in Registro Eccle. XpÌ„i Cant. Stow. the yere of our Lord God 693. although otherwise the thing it selfe be more auncient and discends from the councell of Saint Paul he gaue to Titus to appoint Elders in euerie Citie but that Cities and Countries againe are
forsooth because these words and tearmes are expressed in the Statute which is much like vnto that as one would needes haue a house to be Master Peacocks house because he saw a Peacock sit vpon the top thereof But it is not the naming of a thing in a Law or Statute that makes it to be of the Temporall cognisance or otherwise but it is the nature or qualitie of the thing named that rangeth it vnder the one Law or the other So that if the matter ordered in the Law or Statute be temporall the cognisance shall be Temporall if Spirituall then the case is determinable in the Ecclesiasticall Law for this Prouiso is not prohibitorie as the last Prouiso of this statute is whereby Ecclesiasticall Iudges are forbidden to hold plea of any thing that is in the said Prouiso conteyned but it is rather directiue and sheweth where the Ecclesiasticall Iudge is to giue way to immunities and to pronounce for them so that for any thing is conteyned in this Prouiso to the contrary the cognisance of these matters specially Priuiledge Prescription and Composition still remayneth at the triall of the Ecclesiasticall Law as they did before this Prouiso was made De praescripr lib. 2. tit 26. De Priuileg lib. 5. tit 33. for Tythes and other Ecclesiasticall dueties as may appeare by the seuerall Tytles in the same Law hereon written And for the other words Law and Statute therein mentioned when as the King hath two Capacities of gouernment in him the one Spirituall the other Temporall and his high Court of Parliament wherein Lawes are made doth stand aswell of Spirituall men as Temporall men and so ought to stand in both houses if the auncient booke De modo tenendi Parliamenti be true and authenticall which makes the vpper house of thrée states the Kings Maiestie the Lords Spirituall and the Lords Temporall and the Lower house in like sort of thrée other the Knights the Procurators for the Clergie and the Burgesses and his Maiestie hath wythin this Realme aswell Ecclesiasticall Lawyers as Temporall which are no lesse able to iudge and determine of Ecclesiasticall matters than the Temporall Lawyers of temporall businesse It is not to be imagined but as his sacred Maiestie will haue those Lawes to be held Temporall and to haue their constructions from Temporall Lawyers which are made and promulged vpon Temporall rights and causes So also his Highnesse pleasure is and euer hath béene of all his predecessors Kinges and Quéenes of thys Land that such Lawes and Statutes as are set out and publyshed vpon Ecclesiasticall thinges and matters shall bee taken and accompted Ecclesiasticall and interpreted by Ecclesiasticall Lawyers although eyther of them haue interchangeably each others voyce in them to make them a Law And that the King doth infuse life into eyther of the Lawes when as yet their substance is vnperfect and they are as it were Embreos is in Temporall matters by his temporall authoritie and in Spirituall matters by his spirituall authoritie for to that end he hath his double dignitie in that place as also the Ecclesiasticall Prelates sustaine two persons in that place the one as they are Barons the other as they are Bishops So that euen the orders of the house doe euince that they are two sortes of Lawes in that place vnconfounded both in the head and the bodie although for communion sake and to adde more strength to each of them the generall allowance passeth ouer them all And as they rest vnconfounded in the creation of them so ought to be likewise in the execution of them and as the Temporall Law sortes to the Temporall Lawyers so the Spirituall Lawes or Statutes should bée allowed and allotted vnto the Spirituall Lawyers And as the nomination of these words Law or Statute in this precedent Prouiso makes not the Law or statute Temporall but remayneth wholie Ecclesiasticall by reason of the Spirituall matters it doth conteine and the power of him that quickneth it and powreth life thereinto so much lesse can the inserting of these tearmes Priuiledges Prescriptions or Composition reall intitle the Common Law to the right thereof or the Professors of the said Law to the interpretation thereof for that matters of these tytles so far as they concerne Tythes and other Ecclesiasticall dueties haue béen euermore since there hath been any Ecclesiasticall Law in this land which hath been neere as long as there hath béen any profession of Christianitie with vs of Ecclesiasticall ordinance neyther euer were of the Temporall cognisance vntill new of late that they transubstantiat euery thing into their owne profession as Midas turned or transubstanciated euery thing that he touched into gold But here it will not be amisse to inquire since Tythes came in the beginning of the Primitiue Church wythin a little time after the destruction of Ierusalem and the subuersion of the Iewes policie vnto the Christian Church and Common wealth void of all these incumbrances as shall appeare after by the testimonie of sundrie of the auncient Fathers which were néere the Apostles time how it comes to passe since Tythes are no lesse the Lords porcion now than they were then and in the Patriarkes time before them that these gréeuances haue come vpon them more vnder the Gospell than euer they did vnder the Law for then neuer any Lay man durst stretch out his hand vnto them to diminish any part thereof but he was charged Malach. 3. with robberie by the Lords owne mouth and in punishment thereof the Heauens were shut vp for gyuing raine vnto the earth and the Palmer worme and Grashopper were sent to deuour all the gréene things vpon the earth And for Ecclesiasticall men it is not read any where in the Scripture that euer they attempted to graunt out anie priuiledge of Tythes to any person other than to whom they were disposed by the Law or to make anie composition thereof betwéene the Lay Iew and the Lords Leuites euery of the which haue beene not only attempted agaynst the Church in Christianitie but executed with great greedynesse so far worse hath béene the state of the Ministerie vnder the Gospell than was the condition of the Priestes and Leuites vnder the Law The beginning whereof although it be hard for me to finde out because there is small memory thereof left in Stories yet as far as I can by all probabilities coniecture this great alteration in Ecclesiasticall matters came by two occasions the one by the violence of the Laitie thrusting themselues into these Ecclesiasticall rights contrarie to the first institution thereof for when they were first receyued into the Christian world they were receyued and yéelded to for the benefit of the Clergie only as in former time vnder the Law they had béen for the vse of the Priestes and Leuites only The other was the too too much curiositie of Schoolmen who beeing not content with the simple entertaynment of Tythes into the Church as the auncient fathers
howsoeuer the refusal be or be not they grant out their Prohibition in these cases And yet if the Iudges Ecclesiasticall procéedings might be séene and vouchsafed to be read before them it would bee plaine there were no such cause of their hard opinion against them for euerywhere they doe allow such like allegations And if perhaps one inferiour Iudge shold make refusal as they pretend yet could it not be reformed by another in an ordinarie course of appeale but that there must néeds be brought a Prohibition out of the Common law to redresse the same vnlesse happily they can shew it is a generall conspiracie in the Ecclesiasticall Iudges or a Marime in their learning that they will not or cannot admit any Plea of discharge in this case which they can neuer doe And therefore they are to be intreated to change their opinion in this point and doe not the Ecclesiasticall Iudges that wrong as to charge them with such an imputation whereof their whole practise is witnesse to the contrarie for it is vnworthy such mens grauitie as theirs is who propound vnto themselues the inquirie of the truth in all matters thus to be misconceiued and masked in an errour and that for so many yeares and not to bee willing to heare the contrarie which is an obstinacie in policie no lesse indurat than the Papists is in Religion who see the truth and will not beleeue it And so far as concerning Prescriptions and the first cause and beginning thereof Now it followeth I speake of Priuiledges which are immunities graunted vnto priuat men beside the Law Of these some are very auncient such as true zeale toward the Church bred and the iust admiration of the holy men of God for their sanctimonie of life their great knowledge in the word of God their great patience in persecution for Christ and his Gospell the vigilancie and care they had in their Office stirred vp both in Prince and people So Constantine the great being rauished with the loue of Religion and the good opinion he had of the Ministers of his time erected Churches and endowed them with large possessions and graunted them sundry immunities whereby they might more securely intend to the preaching of the word of God and the winning of soules to the Christian congregation wherein they laboured with all their might and power God still adding to the number of the Elect. Neither did he this alone in his owne person but he also gaue leaue to all other of his subiects that would doe the like whereupon L. 1. C. de sacros Ecclesiis §. si quiâ— authent de Ecclesia the Church was so inriched within a short time that as Moses in the building of the Arke was faine to make Proclamation no man should bring in more towards the building thereof the people bringing in continually such great abundance of all things necessarie towards the furnishing thereof as that there was enough and much to spare So also Theodosius the thirtéenth Emperour after Constantine although otherwise a most louing and fauourable Prince towards the Church was faine to make a Law of Amortisation or Mortmaine to moderate the peoples bounty towards the Church as did also many wise Princes in other Nations vpon like occasion and in imitation of this Act of Theodosius many yeares after and among the rest diuerse Magna charta cap. â—6 W. 1. 〈◊〉 31. an 13. Eâ— 1. Princes of this Land did the like vpon the dotage of the people towards the Religious Parsone specially towards the foure Orders of Friers that were then newly sprung vp in the world But yet this Act of Theodosius was done with the great dislike of these blessed men Ierom and Ambrose who liued in those daies for that Ierom thus complaineth of that Law to Nepotian I am ashamed to saie it the Priests of Idols Stage-players Coach-men and Common Harlots are made capable of Inheritance and receiue Legacies onely Ministers of the Gospell and Monkes are barred by Lawe thus to doe and that not by persecutors but by Christian Princes neither doe I complayne of the Lawe but I am sorie wee haue deserued to haue such a Law made against vs In like manner and vpon the same occasion doth Ambrose deplore the state of the Clergie in his one and thirtieth Epistle Wee count it saith hee no iniurie in that it is a losse wee are not grieued that all sorts of men are made capable of Wils none excepted how base prophane or lauish of his life or honestie soeuer hee bee but I am sorie that the Clergie men only of all sorts of people are bard the benefit of the Law that that is common to all who notwithstanding onely pray for all and doe the common celebration of the Seruice for all So far they And yet whosoeuer lookes into this constitution whereby it was forbidden that any man should passe any Lands or other immoueable possession vnto the Church without the Princes leaue for that thereby the things that are so passed come as it were into a dead hand which holdeth surely fast that it once apprehendeth neither easily parteth with it so that it cannot without much difficultie bee reduced and brought againe to the commerce and common vse of men shall find it was rather for the benefit of the common wealth than for the dislike of the Church it was so ordered For if that course had béene holden on still the greatest part of the liuelyhood of the common wealth woule in short tune haue come vnto the Church and so Lay men should not haue béene able to haue borne the publicke burthens of the common wealth which it concerns Seculer Princes to be carefull of and to foresée that by ouermuch bountie towards the Church they impouerish not their owne state and loose the rights of Escheats Primer season and other Priuiledges of the Crowne in cases of forfaiture and specially make bare their Lay subiects vpon whom a great seruice of the common wealth doth lye And yet otherwise the beneficiallest state of this Realme vnto the Prince is the Clergie as from whom the King hath a continuall reuenew in Tenths and is déepest 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 seruice of the Church and the Church again for the benefit of them But this was none of those Priuiledges I spake of for these are more auncient than they and graunted out vpon better deuotion than the other but after this the zeale of Religion being almost extinguished in the Christian world partly by the great vproars and tumults that were in euery Country by the influence of one barbarous Nation or other into them who pulled downe Churches faster than euer they were built
great victorie that he got ouer this kingdome to haue appropriated thrée Parish Churches to the Abbey of Battaile which he buylt in memorie of his Conquest And whereas William his sonne had depopulated ouerthrowen sundry Churches in the new Forrest Henrie his brother by his Letters Patents gaue the Tithe therof to the Cathedrall Church of Sarum and annexed thereto xx other Churches in one day if the copie of that Record that I haue séene as concerning these appropriations be true yea the matter was gon so far in those dayes that euen Noble persons and other meaner men would commaund Corrodies and Pensions to their Chapleines and other seruants out of Churches and could not be redressed vntill such time as there was made a Statute to Aâ—no 1. Edw. 3. cap. 10. reforme it On the contrarie side that I should take it to be a deuise of the Pope I am moued thereto that I find euery of these orders of Religious men were confirmed by one Pope or other and as they confirmed them so it is like they made prouision for them and that most especially this way and that chiefly after the Lawes of amortisation were deuised and put in vre by Princes and thereupon it is that we finde sundry sorts of annexation made by Popes Bishops vnder Linwood c. licet bona memoria gloss in verb. asserunt non ligari de locato conducto them euery one in their Diocesse as some were made so far as concerned the Patronage only then had the Monks therein presentation only some other were made pleno iure and then might the Monkes both institute destitute therin without the Bishop and turne all the profit thereon to their owne vse reseruing onely a porcion to him that should serue the Cure there some other Churches did they graunt simply to them without any addition of full right or otherwise and then if the Church were of their owne foundation they might chuse the Incumbent being once dead whether they would put any other therein vnlesse perhaps the same Church had people belonging vnto it for then must they of necessity still maintaine a Curat there and of this sort were their Granges Priories those which at this day we call Donatiues but if it were of another mans foundation then was it otherwise To this also I adde that that the Pope euery where in his Decretals arrogateth this right vnto himselfe as a Prerogatiue of the Apostolike Sea to graunt these priuiledges to Religious orders to take and receiue Benefices at lay mens hands by the mediation of the Diocesan whose office it was to be a meane betwéene the Religious house and the Incumbent for an indifferent rate that neither of them should presse too much the one vpon the other Gloss in verb. de Decim and therefore in the beginning the vsuall rate that they set downe betwéene the beneficed man and the Religious person was the one halfe of the Benefice for that it was not thought that the Pope would charge a Church aboue that rate But after by the couetousnesse of Monkes and Friers themselues and the remisnesse of the Bishops who had the managing of this businesse vnder the Apostolike Sea the Incumbents part came to so small a portion that Othobon c. quoniam de Appropriationibus Ecclesiarum Vrban the fifth by Othobon his Legate here in England in the yeare of Saluation 1262. was faine to make a Legantine whereby he forebad all Bishops of this Land to appropriat any more Churches to any Monasterie or other Religious houses but in cases onely where the persons or places to whom they were appropriated were so poore as that otherwise they were not able to susteine themselues or that the cause were so iust that it might be taken rather to be a worke of charitie than any inforcement against Law and that beside with this Prouiso as that if the new Proprietaries within sixe Monethes next after should not set out a competent porcion for the Minister of the fruites of the Benefice themselues should assigne out a sufficient maintenance thereout according to the quantitie and qualitie thereof Which constitution because it tooke not that effect that was hoped there were two Statutes made the one by Richard the second the An. 15. Rich. 2. cap. 6. An. 4. H. 4. cap. 12. other by his successor Henry the fourth both for the conuenable indowment of the Vicar there to doe diuine Seruice and informe the people and to kéepe hospitalitie among them Albeit most of these Appropriations were principally in Monkes and Fryers and such other Religious persons yet were not Bishops Seas and Cathedrall Churches altogether frée from them as I haue before shewed in the Cathedrall Church of Salisburie to whom Henry the first appropriated néere twentie Churches in one day And the Sea of Winchester which hath had two Benefices aunciently annexed to the Bishops table the Parsonage of Eastmeane and the Parsonage of Hambleden Neither do I doubt but the like was done in other Bishops Seas and other Cathedrall Churches if I had as good instruction to report of them as I haue had information to speake of these And so far as concerning the first effect of Priuiledges whereby sundry fat Benefices haue béene iniuriously drawen from their owne Churches and vnnaturally appropriated to Monkries and Fryeries and other seculer and Religious places which as I haue said hath béene partly the act of Lay men and partly of Ecclesiasticall men Now followeth the second effect hereof And that is the exemption of these Religious mens possessions from payment of Tythes which is a priuiledge of the Pope alone for Monkes aunciently paied Tythes of Ca. ex parte tua gloss in verb. laborum de decim their land before these priuiledges as other Lay men did But Pascalis the second casting a more fauorable aspect towards Monkes and other Religious men than any of his predecessors before time had done did order together with the Councell of Ments That neyther Monkes nor other Religious persons or any other that lyued in common should pay Tythes of their owne labors Which immunitie Fod in deaÌ„ gloc verb. laboris in processe of time Pope Adrian recald so far as it concerned the rest of the Religious persons and limitted it onely to the Cystertians Hospitallers Templers those which were of the order of S. Iohns in Icrusalem leauing onely to the rest fréedome from paying Tythes of landes newly broken vp and laboured wyth their owne hands and of their garden and of their cattell In which state the matter stood vntill Innocent the thirds dayes who although he were in no other point of better mould than the rest of the Popes were yet was he in this more pittifull towards poore Incumbents of Parish Churches than any of his predecessors had béene who séeing hereby the inconueniences of beggery and ignorance that grew vpon sundry of the Parochian Priestes by
and other of like nature according to the learning of that Law but these are certain accidents ouer and beside the Tenure of the land which may be present or absent without the iniurie of the Tytle as God many times turneth floulds into wildernesse springs of water againe into drinesse a fruitful land makes he barren for the wickednesse of them that dwel therin and yet the Tytle or Tenure of the ground is not changed by these changes of qualities but remains the selfe same that it was so that these things are no more subiect to the ordering of the Common Law than it is in the Cōmon Law to iudge determine what mould is white what is black what ground will beare wheat what barley what oats for these things are no matters of skil of law that they néed to be fetcht out of bookes but they are matters of common experience which euery 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 with the depositions of two or thrée honest men which speak sensibly and féelingly to the point that is in hand which is enough to direct any wise Iudge in his sentence so that it néeds not these long circumstances of twelue men to teach the Iudge what and how truely the witnesses haue deposed For if euery qualitie of the ground resteth in the mouth of twelue men onely then should no man bee able to say out of the mouth of a witnesse and pronounce thereupon this ground is mountaine this is plaine this is meadowe this is errable vnlesse he were warranted by the verdit of twelue men therunto which if it be an absurditie to hold then sure it is like absurd to say that barren heath and waste cannot bee pronounced without a Iurie for that these things are like obuious to sence and like qualited as the other are And I pray you when they haue drawne it vnto their triall what doe they in effect otherwise than the Ecclesiasticall Iudge would or should haue done if it had remained stil vnder him for doe they giue credit simply to the conceit of the Iurie as touching that which hath béene declared and pleaded in the cause before them or doe not the Iudges themselues rather make a briefe of all that hath béene pleaded in the cause before them and thereof make as it were a verdit and put the same in the mouth of the twelue for their verdit before they goe from the bar So that the whole weight of the cause standeth rather in the Iudges direction in such sort as it is at the Ecclesiasticall Law than it doth in the mouth of the Iurie for the Iurie men for the most part are simple people scarce foure of the twelue vnderstand their euidence so that it may séeme rather to be a matter of supersluitie than of good policie to refer a matter to their verdit when as they say no other thing than that the Iudge taught them before Stultum enim est id facere per plura quod fieri potest per pauciora for albeit perhaps some capricious fellow of the Iurie vpon the confidence of his owne braine sometimes start aside from that which the Iudge hath told him and draw the rest of his fellowes as so many shéepe after him yet for the most part the Iudges voice is their direction their loadstone and and North pole to guid them in this businesse Besides in this Prouiso as in some other precedent there is a great disaduantage offered to the Clergie which they much complaine of and that is that in cases of this nature they are compelled to suffer triall vnder them who are as in a maner parties vnto the suit by reason of the interest they haue therein either in present or in consequence so that many now a daies learning too late by other mens harmes what the euent in theirowne cause wil be chuse rather to loose their right than to venture their cause vpon such partiall Iudges as the 12. men are And so far as concerning those prohibitions as are forced out of this Statute for naturally they grow not out thereof so that I might now passe ouer to the other branch of my diuision that is of such matters as are now held by the Common Lawyers to be in a certaine measure only of the Ecclesiasticall procéeding but were aunciently wholy of the Ecclesiasticall cognusance but that the name of the Statute De Sylua caedua offering it selfe vnto me in the conclusion of this Statute of Edward the vj. giues me occasion to speak something 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 xx yéeres growth vpward from the payment of Tythes and that in three cases only where the wood was great where it was of xx yeares of age and vpward where it was sold to Marchants eyther to the profit of the owner himselfe or in ayd of the King in his warres so that without these cases it séemeth the Statute intended no further exemption for Statutes are things of strict Law and are no further to be extended than the words thereof giue matter thereunto specially when the thing it selfe naturally was lyable to ordinary course of the Law as other things of like nature are and the statute comes in derogation of their ordinary course as in this case great timber auntiently was no lesse tythable than small trées are and so by nature ought to be if the statute were not to the contrary yet notwithstanding these limitations of the same if great wood be cut down to any other vse then to sale as to build or to burne to a mans owne vse a prohibition in this case lyeth and yet is there no Identitie of reason to extend it nor any absurditie would follow if it were not extended for here is neither mony sought which gaue occasion vnto the Lawgiuers to make this statut of exemption neyther is it an vnnatural thing for to pay Tythes of great wood for before this time they were paid and by the Law of God it séemes they ought to be paied for that he that is taught ought to communicate to him that teacheth him in all things and therefore since the reason that moued the Lawgiuers to order it so in one case ceaseth in the other there is no reason of extention when there is not an Identitie of reason in the things that are in demaund there can no sound inference be brought in from the one to the other for of seuerall things there is a seuerall reason and a seuerall consequence neyther can there be framed thereof a good implication eyther positiuely or remotiuely neyther hath this interpretation of theirs any warrant of Law for it saue that it hath bin so defined and decided
Si culpa de iniurijs either matters of crime or matters of defect Such as imply matters of Crime either are such crimes as it is expedient for the Common wealth to know as Treason Linwood prouinc de sniÌ„a excomm ca. 1. verb. maliciose Felonie Murther Incest Adultery and such like to the end they may receiue due punishment whereby God may be pleased and the Common wealth satisfied Or they are such crimes or faults as it is not expedient for the Common Bohic vbi supÌ„ weale to be acquainted with as where one calleth one Prodigall or spend-thrift for albeit it be expedient for the Common wealth that no man misspend his estate for that the Common wealth hath as it were an interest in euery priuat Subiects state yet this is rather his owne hurt than any other mans and that which he spends away vnthriftily commonly turnes to an other better subiects gaine whereby the Common wealth is reléeued in one that it lost in an other and for the most part there is no great corruption of manners in the example thereof A great while it was before the Lawes of this Land tooke knowledge of Diffamations as counting them things belonging to the Spirituall Law so they were dulie Term 12. H. 7. fol. 22. Regist pag. 49. prosecuted as may appeare by certein Iudgements consultations which haue issued out thereon but now let men prosecute them neuer so duely yet Prohibitions goe out on them daily and sundry others are drawne to the common Law Courts by action of the case wherein they haue so infranchised themselues as that they take vpon them to confine the Ecclesiasticall Law how far it shall goe therein Which limitations notwithstanding as far as I can conceiue are but distinctions without differences and so are in very déed but bare Synonomies that is diuerse names expressing one thing for all the words in the said limitation infer no more than this that Ecclesiasticall men are not to deale in matters of diffamation but where the matter of diffamation is only Ecclesiasticall and yet I reuerence the author thereof as a great man and of like excellencie in this Law as Papinian was in the other Law this I thinke to be commendation enough for neuer any Lawyer in former age had more commendation or eulogie of wit than himselfe had In the first of these cases if a man procéed by ordinarie C. ad L. Iullam repetundarum l. 1. 2. 〈◊〉 de ordin cognition c. dilectus ff de aqua plâ—â— arcenda l. 1. §. denique L. Procâ—lus l. fluminum in â—in ff de daÌ„no infecto ff de regul iuris l. factum § non videtur course of Law either for the punishment of the sin as by presenting the offender to the Ordinarie or indicting him beefore the Temporall Iudge or by admonishing him by any charitable denunciation with purpose to amend him and to recall him from such offensiue waies as hee is charged to walke in Or doe any thing in Iudgement for the defence of his owne cause as in obiecting some thing against the party himselfe or his witnesses either for the eleuating or discrediting the truth of the cause or the testimonie of the witnesses there can be no aduantage taken against him for he cannot be said to diffame which vseth the libertie the Law giues him albeit in this case some aduise that a man shall obiect none of these matters against another in iudgement but when his cause necessarily requires such things to be spoken for the defence therof and that the partie that obiecteth them doe protest he doth it not with a calumnious minde but that the defence of his cause otherwise would not bee iustified But if any man doe any of these things malitiously with purpose rather to vtter his owne cankred stomake than that L. Labeo de supell legat C. de famosis libel l. 1. ff ad l. Aquileam l. si ita vulneratus he would benefit the common wealth thereby then is he punishable for although it be behooueful for the common wealth that bad mens faults should be manifested that so wickednesse may be punished yet is it not fit they should be vttered in reproach and choller Of the second sort although there be some that conteine pettie crimes yet are they many times so friuolous as that they yéeld no action for friuolous and smal things the Law regardeth not For such Diffamations as rise vpon defects if the defects be such that the contagion thereof is to be feared vnlesse the people be forwarned of the danger that may ensue thereon as in cases of Leprosie the Plague the French Pox and other like infectuous diseases and that it be reuealed with a sincere minde rather to cause men to refraine their companie for fear of the infection than of any malitious humor against the party thereby to reproach him it is no Diffamation But if it be vttered in any spléene or choller against the partie defectiue then is it actionable for it is an vnciuile part to C. quando quib quarta pars l. 2. lib. 10. lay open another mans defects but if the defects bee such as it nothing auaileth the coÌ„mon wealth they should be known as where a man obiecteth against another any imperfection of his minde or deformitie of his bodie which hee had from his cradle or hath happened to him by any accident without any default of his and cannot be easily remedied or reprocheth him with any thing in his state or condition wherewith he is not iustly to be charged neither is there any iust cause offered the diffamor why he should vse such disgracefull speeches against the other than is it altogether punishable For that such things tend onely to contumelie and despite which the Law séeketh by al meanes to represse for that therby charitie betwéene man and man is violated and the peace of the common wealth is many times broken and disturbed The procéeding in these causes in the Ciuile Law was of two sorts for it was either ad publicam vindictam or else ad priuatum interesse as the partie iniuried made his choice therof Ad publicaÌ„ vindictaÌ„ was when the partie Diffamed sought ff ad L. Corneliam l in constitutionibus §. vlt. to haue the Diffamer recant his words or to vndergo some open infamous punishmeÌ„t for his rash malitious speeches wherby it might be publickly knowne abroad he did the other wrong But Ad priuatum interesse was when he sought not the recalling of the slaunderous speeches which were giuen out against ff de verborum oblâ—gation l stipulationem §. plané ff de re iudicat L. siquiâ— ab alio him but esteemed his credit at some great rate as that he would not for a thousand pounds or more or lesse quantity according as the worth and calling of the person is haue had such speeches gone out of him and so seekes to haue
giuing money to the Iudge or to the party grieued And this I take to be a far better limitation for either Law hauing the ground of the Ciuil Law and a statute of the Common Law and common reason it selfe for it than the other deuise is which so distinguisheth this businesse as still it makes it rest in the mouth of the Iudge which cause of Diffamation is méere spiritual and which not which were not to be done if there were cléere dealing in the matter for Lawes are so to be made as that as little as may be bee left to the discretion of the Iudge but all be expressed as far as the nature of the cause will giue leaue which albeit it be hard to doe for the varietie of the cases that euery day happen neuer thought on before yet that is to be laboured so far as may be for this libertie of leauing many things to the Iudges discretion is many times great occasion of confusion in Iudicature saying sometimes this and sometimes that as his priuat humor shall lead him and therefore a plaine distinction betwéene both the Lawes were best that euery man may see and say what is proper to either of them And thus far as concerning matters of Diffamation Now followeth that I speake of matters of Bastardie Bastardie is an vnlawfull state of birth disabled by diuine and humane Lawes to succéed in inheritance Of Bastards some are begot and borne of single women in which ranke also I put widowes some other of married women Of single women some are such as a man may make his wife if himselfe bee sole and vnmarried as those that are kept as Concubines in place of a mans wife some other are such as a man cannot make his wife although himselfe bee sole and vnmaried for that either they are alreadie precontracted to some other or that they be in so néere a degrée of affinitie or consanguinitie one to the other that the marriage would bee damnable and the issue thereof vnlawfull Of such as are begotten of single women by single men who are in case to marrie them if they will some are called by the Ciuile Law Filij Naturales because they were begot by such as they held for their wiues and yet were not their wiues who might be legitimat by sundry waies as hereafter shall be shewed Some other begot vpon single women if they were begot in vage lust without any purpose to hold such a one for a Concubine but vpon a desire onely to satisfie a mans present Lust whether they were begotten by married men or single men were called Spurij who for the most part are putatiue children and their Father is not otherwise knowne than by the mothers confession which sometimes saith true sometimes otherwise Isidor saith they were so called because they were borne out of puritie for that such kinde of lust is contrarie to holy Matrimonie whose bed is vndefiled and therefore the other is corrupt and abhominable But where any was borne of a woman single or married that prostituted her selfe to euery mans pleasure and made publicke profession of her selfe to be an harlot such as are they whom the Law calleth Scorta these were called Manzeres Those which were begotten of maried women were cald Nothi because they séemed to be his childrē whom the mariage doth shew but are not no otherwise than some feauers are called Nothae that is bastard feauers because they immitate the tertian or quartan Feauer in heat and other accidents but yet are neither tertians or quartans as the learned Phisitians wel know but these are counted so to be bastards if either the husband were so long absent from his wife as by no possibilitie of Nature the child could be his or that the Adulterer and Adulteresse were so knowne to kéepe company together as that by iust account of time it could not fall out to be any other mans child but the Adulterers himselfe and yet in these very cases within this Realme vnlesse the husband bee all the time of the impossibilitie beyond the Seas the Rule of the Law holds true Pater is est quem nuptia demonstrant The most nefarious and last kind of bastards are they whom the Law calleth Incestuosi which are begot betwéene ascendents and descendents in infinitum and betwéen collaterals so far as the Diuine Prohibition and the right interpretation thereof doth stretch it selfe The effects of these sorts of bastardies are diuerse First it staineth the bloud for that he that is a bastard can neither challenge Honour nor Armes from the Father or Mother for that he was begot and borne out of Matrimonie which is the first step to Honour and therefore the Apostle calleth Marriage honorable whereupon it must follow that the opposite thereof is shame for albeit it be no sin for a bastard to be a bastard yet is it a defect in him to be such a one and a thing easily subiect to reproch Secondly it repelleth him that is a bastard from all succession descending from the Father or the mother whether it be in goods or Lands vnlesse there be some other collaterall prouision made for the same for that all such Lawes and statutes as are made to any of these purposes were intended to the benefit of such as are Legitimat and are next of kin by lawfull succession and not by vnlawfull coniunction To Legitimat him that was a bastard when there could no clame be made vnto his birthright but by grace among the Romans were sundry wayes first where the Father of the Bastard they being both single persons married the woman by whom he begot the child secondly where the father did by his last will and Testament or by some publike instrument subscribed by witnesse name him to be his naturall and lawfull sonne or simply his sonne without the addition of any of these two words base or natural therwithall did make him his heyre which could not be but in such cases only where the father had no other naturall lawfull child left aliue Thirdly whereas the Prince by his rescript or the Senate by their decrée did doe any one that credyt as to grant them the fauor of legitimation which was done for the most part in such cases only wheras eyther the father of the child or the child himselfe offered himselfe to be attendant on the Court or Prince In this Realme none of the foresaid legitimations take place as far as I can learne but only that which is done by Parliament and that verie rarely for beside those that King Henry the 8. did in the varietie and mutabilitie of his mind 28. 8. cap. 7. towards his owne issue I think there cannot be many examples shewed for as for that which is wrought by subsequent 1. Mar. 1. parliamen cap. 1. Marriage being a thing auntiently pressed by the Clergie of this Land to be admytted in like sort as it is vsed in other Lands where
analogie in them and therefore the Reuerend Iudges are to be intreated because they challenge vnto themselues the opening of the statuts alone albeit peraduenture that be yet sub Iudice where the Statute of Ecclesiasticall causes is to bee interpreted that they would recall such exorbitant interpretations as haue of late gone abroad vpon these Statutes and restore them to their auncient sence and vnderstanding No man can so cunningly cloake an interpretation but another will be as cunning as he to spy it out and then the discredit will be the Lawes A small error saith Aristotle in the beginning is Lib. 1. Poliâ—iâ— a great one in the end and he that goeth out of the way a little the longer hee goeth on the further he is off from the place his voyage was to and therefore the spedier returne into the way againe is best The old Prouerbe is He that goeth plainly goeth surely which may be best verified in the exposition of the Law if any where else for commonly men offend no where more daungerously than vnder the authoritie of the Law and therefore one saith very well that There are two salts required in a Iudge the one of knowledge whereby hee may haue skill to Iudge vprightly the other of conscience whereby hee may bee willing to iudge according to that as his skill leadeth him vnto both which being in the graue Iudges it is not to bee doubted but they will bee easily induced to reuiue their owne and their predecessors interpretations and reduce such exorbitant expositions as haue scaped out thereof vnto the right and naturall sence thereof which if perhaps they shall bee loath to doe for because it makes for them or for some other like partiall respect then humble supplication is to bee made vnto his Maiestie himselfe will be pleased to giue the right sence of those things which are in controuersie betwéene both the Iurisdictions for his Maiestie by communicating his authoritie to his Iudges to expound his Lawes doth not thereby abdicate the same from himselfe but that he may assume it againe vnto him when and as often as him pleaseth Whose interpretation in that is to bee preferred before theirs first that his interpretation is impartial as hee that will not weaken his left side to make strong his right for so are these Iurisdictions as they are referred vnto his politicke bodie but will afford them equall grace and fauour that he may haue like vse of them both either in â— 1. num 8. C. 〈◊〉 L. 1. num â— C eod l omnes popuâ—â— ff de in stit iure fortaine or domesticall businesse as occasion shall serue then that his Iudges interpretation maketh right only to them betwéene whom the cause is but his highnesse exposition is a Law vnto all from which it is not lawfull for any subtect to recéed neither is reuersable by any but by himselfe vpon a second cogitation or him that hath like authoritie as himselfe hath and therefore most fit to be interposed betweene Iurisdiction and Iurisdiction that the one partie bee not Iudge against the other in his owne cause which is both absurd and dangerous And let this suffice for the right interpretation of Lawes and Statuts now it followeth that I speake something of the supplies that may be made to the defects that are in the same It is not to be doubted but it was the full minde intent of the Law-makers which made those thrée Statutes to infeoffe the Ecclesiastical Courts in the inheritance of all those causes that are comprised in those Statutes saue those that are by speciall name exempted and did by the said Statute as it were deliuer vnto them full and quiet possession of the same for euen so sundry braunches of the said Statute doe shew as I haue elswhere made it manifest and that there hath growne question vpon many points thereof and that the professors of the Ecclesiasticall law haue béene interrupted in the quiet possession thereof commeth of the vnperfect penning of the same and not of any iust title or claime that may be made by the porfessors of the other Law therunto but this is a thing not only proper to these thrée Statuts but also Common to all other Statutes which are writ of any Ecclesiasticall causes within this Land which notwithstanding may be remedied if it séem good vnto his sacred Maiestie the rest of the wisdom of the land assembled together at any time for the making of wholsome Lawes and the reforming of the same by supply of a few words in some places or periods that are defectiue and yet kéeping the true meaning and sense of the same As for example in the statute of the two and thirtieth of Henry the eight in the § wherefore néere the beginning of the same Statute the Statute ordering that all persons of this Realme and other of the Kings Dominions shall truely and effectually set out and pay all and singuler Tythes according to the lawfull customes and vsages of the Parishes where they grow and become due because there is a question made where these customes and vsages shall bee tried in the Ecclesiasticall or Temporall Law if these or the like words had beene added to the same to be prooued before an Ecclesiastical Iudge after the form of the Ecclesiastical Law not elswhere the whole matter had bin cleere for that point And whereas againe in the end of the same Statute there be some good words tending to the appropriating of these matters of Tythes and Oblations and other Ecclesiasticall duties to the Ecclesiasticall Courts as that the remedie for them shall be had in the Spirituall Court according to the ordinance of the first part of that Act and not otherwise yet because there is no penaltie to that act busie men easily make a breach thereinto for that Lawes without penalties for the most part are weake and of no force if therefore this or the like supply were made if any man sue for these or like duties in any other Court than in the Kings Ecclesiasticall Court the partie so suing to forseit the treble value of that which he sued for to be recouered in the kings Ecclesiasticall Court where it ought to haue beene commenced by the way of Libell or Articles the one halfe therof shal be to the king the other to the partie grieued many of these suits would easily be met withall Neither is it to the purpose that this is matter of mony and Lay fee that should be in this sort forfeited and therefore is not Regularly to bee sued for in the Ecclesiasticall Court yet because the cause is Ecclesiastical vpon which the matter of forfaiture ariseth it may bee verie well allowed Ne continentiae causarum diuidantur and for that ordinarily euery Iurisdiction that is wronged may defend it selfe with a penaltie beside we do by the like right in the Ecclesiasticall courts recouer expenses of suits in Law fées of Aduocats and
no action to the one to sue the other but yet the ancient practise of the Ecclesiastical Law hath remedy which would redresse all this mischiefe if it were cald againe to vse might go without controlment as the equitie of the cause doth require And the remedie is this that such other of the Executors or Administrators as are in this sort interuerted from the execution of the Wil or Administration by the subtiltie of any like Executor or Administrator should craue the assistance of the Iudge will him by vertue of his office to call in such practick Executor or Administrator and to commaund him vnder paine of excommunication he procéed no further in the sole execution therof but coÌ„municat all his acts dealings with the rest of his Coexecutors or Coadministrators which if it were so ordered would make many mens Wils Administrations better performed than they are a great sort of poore Orphans states more sure certaine than coÌ„monly they are in such executors or administrators hands And certainly in this case there is some good vse of Superuisors in dead mens Wils whom many men merily iest at calling them candle-holders as though they could do nothing else in the execution therof but hold the candle while the Executors tel the Defuncts money if they might be permitted to put in practise that authoritie which the Law giueth them and that is when they find any Executor deale fraudulently in the execution of any Testators Will wherin they are named superuisors or do ingrosse all the state of the Defunct into his hands as hath bin before said they cal him to a particuler accouÌ„t that it may be séen how the administration stands ech executor may coÌ„municat to other their particuler receits disbursments which if any shal refuse to do then may the superuisor make therof coÌ„plaint vnto the Iudge as though the ff de administratione tutoruÌ„ l. 3. §. 1. same man dealt not truly in the execution therof who though perhaps in the beginning could not take bond of him for the true execution of the Will because the Testator had made choice of him therin approued his faith that no man required caution of him for any Legacie in the wil bequeathed in which case the Iudge might take bond of him for security of such legacies as are bequethed in the wil yea though his faith hath bin approued by the Ordinary as hath bin before remembred yet may the Iudge in this case if he find him iustly susspected of fraud deceit remoue him by the learning of that Law For neither the Testator himselfe if hee were aliue Instit de suspectis tutorib vel curator toto tit againe would indure him in this case but would blot his name out of his Will neither ought the Iudge to suffer him whose care is to sée that dead mens Wils take their effect according to the Testators meaning All which the law hath prouision for and for infinit things else of like good order in these cases if they might be suffered to put them in execution without impeachment And so far as concerning those things wherein the Ciuile and the Ecclesiasticall Law might be relieued without preiudice to the common Law for because they haue no practise thereof and yet doe not I bring forth these as the onely causes wherein the Ciuill and Ecclesiasticall Law may be licenced to deale in ouer and besides the practise of those things that they haue alreadie but that these are few among many other which might be sorted out if so be there were any hope for the further enlargement of the profession But now to the necessitie of the maintenance of the ciuill and Ecclesiasticall Law in this Realme as they are now practised or ought to be practised which was a thing first propounded but last put in execution in this worke Albeit that which hath béene alreadie said as concerning the Ciuile and Ecclesiasticall Law may well imply the necessarie preseruation of them both within this Land yet because it was a thing I promised to shew in the beginning of this Treatise after I had gone ouer the rest of the parts of my diuision I will in a word or two make plaine the necessitie thereof And therefore for a ground of all the rest I will assume this for a matter confessed that euery man knowes that euery well ordered Common wealth stands on two parts principally the publicke part which consisteth of the Prince and people and the Ecclesiasticall part which standeth in Sacris Sacerdotibus And therefore well said the Emperor In authent quoÌ„ oportet epÌ„os in princ col 1. Auth. de non alienand rebâ—â— Eccl. c. §. 1. Two of the greatest things that God euer gaue vnto the world meaning earthly things was the Empire or seculer gouernment whereby the outward man is ordered made as Aristole saith bonus ciuis that is a good and loyall subiect and the Priesthood whereby the inward man is ruled and is made as the said author testifieth bonus vir that is a good and vertuous man which are two wonderfull effects of the whole gouernment in general neither can the one of these be wanting but the other will bee ruinated and brought to desolation Secondly no man is ignorant of this but in politicke gouernment two things sway the whole state the one is peace at home and the other is war abroad which as they haue their seasons so they haue their causes and effects the one from councell at home the other from discipline abroad neither can the one or the other of these be maintained but by their priuate and proper Lawes Beside in peace who séeth not there is as much néed of vent by sea for to benefit the common wealth by either by importation of those things that wee want at home or by exportation of those things that we abound with as there is prouision to be made for the increasing and preseruing of those things that we haue rising and growing by land in our owne contrey neither of which can be had or inioyed without their proper lawes fit and appertaining to either policie And what Law is there that ordereth these businesses but the Ciuile law onely which giueth a forme to Nauigation and all occurrents that happen by sea whether they bee in or about the Nauigation it selfe or the contracts or as it were contracts that are made in vpon or beyond the same As a Legall forme is requisite in peace at home and Marine affaires abroad that euery thing may haue his due effect according to the right thereof so also it is necessarie in warlike exploits vpon the Sea that euery action haue his limits and bounds wherby Iustice may be ministred which if it bee to bee obserued where lawfull war is held betwéene Prince and Prince that euery one bee not left vnto his own lust much more is it expedient to be put in vre in
Piracies and other Sea-robberies where the innocent is spoiled and the spoiler is enriched The redresse whereof is not but by the Admirall Law to whom the Princes of this Land haue graunted that authoritie For the often commerce of Princes with Princes the negotiation that one state hath with another there is nothing more necessarie than frequent Embassages wherby intelligence may be had what danger one State intendeth to another how the same may be preuented by Leagues or otherwise and how the same may be made and maintained I know not what Law serues better for all these ends and purposes than the Ciuile Law In matters that appertaine to the souls-health the Preacher teacheth out of the word of God wherein the right seruice of God standeth he ministreth the Sacraments vnto the people and instructeth them in other fundamental points of Religion but it is the Ecclesiasticall Law that compelleth men to the due obseruance hereof and punisheth the transgressors All men grant that there is a prouision to be made for the minister for that it is against reason that any man should go to warfare on his charges but it is the Law of the Church that sets out this prouision and yeeldeth remedie for the recouerie thereof if it be denied Nothing is more due vnto the dead that that their last Wils should be obserued for that it is such an ordinance as a man hath not in his power againe when God hath once cald him hence neither is there any thing that Princes haue more graciously granted vnto their subiects than that in their life time they may dispose of that which after they are dead is none of theirs and yet shall take place when they are not as though yet they were theirs in which prouision the Ciuile and the Ecclesiastical Law are aboue all other Lawes most Religious Christening Wedding Burying wherby a man entreth into this world conuerseth in the world and returneth againe vnto the earth from whence he was taken and so after passeth to glorie and euerlasting blisse are euery one of the Ecclesiasticall cognisance How many men of great skill such as few Princes haue greater in all kind of learning are of this ranke not only in the societie of them that professe this knowledge here in the chiefest citie of the Land but also in both the vniuersities and in sundry other parts of this Realm not strangers or forreiners but home-borne subiects of the same saith of the same Religion of the same kindred and familie of like allegeance to the Prince and seruice to the common wealth as other his good subiects are euen those that oppugne this profession chiefly whose practise if it be ouerthrowne or prouision lessened not onely those that are now present and make profession of this knowledge shall be faine to turne their copie but those that are futurely to come wil change their profession when they sée there is no reward or estimation belonging thereto for it is Honour that nourisheth Arts and no man will follow that profession that is out of count and credit but euery Father will say vnto his son in like sort as Ouids Father said to him when hée saw him addict and giue himselfe wholy to Poetrie Studium quid inutile tentas It was aunciently said of the profession of these Lawes Dat Iustinianus honores but now it is so far off from that that it confers Honours as that it is almost a discredit for any man to bee a Ciuilian in this State and the profession thereof doth scarce kéepe beggerie from the gate As God doth dispose his gouernment by Iustice and mercie wherof notwithstanding mercie hath the supreame place in the Lords Tabernacle as that which was put aboue vpon the Arke wherin were the two Tables Exod. 25. of stone in which the Law was written to which Iames 2. Saint Iames alluding saith that Mercie tryumpheth ouer Iudgement so the Princes of this Land to the imitation of that heauenly representation haue appointed two supreame seats of Gouernment within this Land the one of Iustice wherein nothing but the strict letter of the Law is obserued the other of Mercie wherein the rigor of the Law is tempered with the swéetnesse of equitie which is nothing els but mercie qualifying the sharpnesse of Iustice to either which Courts they haue sorted men fit for their skil and education to manage the same that is to the seat of Iustice the professors of the Law of this Land who may be thought best to know the Iustice of the same but to the other they haue assigned the professors of the Ciuile law for that a great sort of titles of that law are titles of equitie as whatsoeuer is Ius praetorium or Ius adilicium with them is matter of equitie so that they might séeme best able for their skill in these tytles of which no other Law hath the like to assist the Lord Chancellor in matters of conscience Who though he be a man for the most part chosen by the Prince himselfe out of the rest of the Sages of this Land for his speciall good parts of learning and integritie aboue the rest as now the Honorable person is that occupieth that place who is as Tully said of that eloquent Orator Marcus Crassus non vnus ex multis sed vnus inter omnes prope singularis so that they might be thought for their great and eminent wisdome in all things appertaining to their place able to direct themselues yet because it is Diuinitatis potius qudm humanitatis omnium rerum habere memoriam in nullo errare as one well saith It was prouidently done by Princes of former ages to ioyne to these great personages men furnished with knowledge in these cases of conscience wherein if they should at any time stick they might be aduised by them that are assessors with them what they find in the Law proportionable to the case in hand that thereto they might square their decrée or order accordingly whose varietie in these cases is such that hardly there can fall out any case in practise but there will be some law in that learning conformable vnto it which opportunitie of men furnished with this knowledge for that seat his Maiestie shall want vnlesse the study of the Ciuile and Ecclesiasticall Law be maintained which also for the cases of equitie and conscience therein is called of the old writers Aequitas Canonica And what reason gaue occasion to the precedent Princes to place men indowed with the skill of the Ciuile Law in the court of Chancerie the same also ministred to them minds to commit vnto the selfe same men the ordering of their Courts of Requests for that therein for the most part are handled poore miserable persons causes as Widowes and Orphans and other distressed people whose cases wholly rely on pietie and conscience as a fit subiect for that Law to deal in which also will take a maime if the studie of the Ciuile Law bee not vpholden So then to deny a frée course to the Ciuile and Ecclesiasticall Law in this Land in such things as appertaine to their profession or to abridge the maintenance thereof is to spoile his Maiestie of a part of his Honour whose glorie it is to be furnished with all sort of professions necessarie for his state and beneficiall for his subiect to weaken the state publicke and to bereaue it of graue and fage men to aduise the State in matters of doubt and controuersie betwéene forraine Nations and themselues to disarme the Church of her faithfull friends and followers and so to cut the sinewes as much as in them lyeth of Ecclesiasticall discipline and to expose her to the téeth of those who for these many yeares haue sought to deuour her vp and so now would do it if the mercifull prouidence of God and the gracious eye of the Prince did not watch ouer her And so far of the necessitie of these two professions and generally of the vse and disuse of the Ciuile and Ecclesiasticall Law in this Land and wherein it is ouerlaid by the Common Law and how it may be relieued if it seeme good vnto his Maiestie and the wisdome of this Realme All which I haue written not of any purpose to derogate from the credit of that Law vnder which I was borne and by which I hold that small maintenance that I haue for I reuerence it as a necessarie Law for this state and make such reckoning of euerie of the professors in his place as becommeth me but that it pitieth me and not only me but all those that tender good learning and haue no preiudicat minde toward the Common Law to sée two such Noble Sciences as the Ciuile and Ecclesiasticall Law are so to be disgraced as that there is no more reckoning made of them or their professors than if they were matters and men of no worth and fit or apt for no seruice in the common wealth and yet notwithstanding the vse of them is so necessarie as that the common wealth cannot want the seruice of them in matters of great importance to the State which if the profession should come to a downefall as it is like shortly to doe if it be no more cherished and made of than it is will be sooner séene by the want of them than is now perceiued by the hauing of them and then perhaps will the State lament for the losse of such a goodly Profession when it will bee hardly recouered againe as the children of Israell did for the Tribe of Beniamin when they had in one day slaine well nigh the whole number of them FINIS