they are referred to the punishment of the Judge who is to punish them according to the quality of the fact age and understanding of the offender and other circumstances according as he shall thinke good so notwithstanding that he exceed not a convenient measure therein neither stretch the same to death but upon some great and weighty cause he is to be content with meaner punishment as temporall banishment whipping or some moderat pecuniary mulct For violating or defacing another mans sepulchre Imfamy was imposed besides a pecuniary mulct to be divided betweene the Prince and the party grieved but if any dig up the corse of the deceased the punishment is death If any by feare of his office or authority wring any money from any man or exact more fees in any matter than he 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 been taken beside further punishment at the discretion of the Judge Such as drive mens cattell out of their ground or sever them from the flock or herd with intent to steale them if they doe it with a weapon like unto a Robber are condemned to be throwne to wild beasts otherwise are more lightly punished according to the discretion of the Judge Such as in Judgement take money on both sides or taking upon 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 Judge Such as receive theeves and other like malefactors are punished in like sort as the theeves or malefactors themselves are especially if they have assisted them in their wickednesse otherwise if they onely knew it received them they are more mildly to be punished especially if the offenders were their kinsmen for their offence is not like theirs which entertain those which are no kin to them at all when as it is naturall for every one to regard his owne blood and fathers are many times more carefull for their children than for themselves but if that hee that received them knew nothing of the offence then is he altogether to be excused Such as break prison are to be punished by death because it is a certain treason to break the Princes ward but if they scape by the negligence of the Keepers against whom the presumption lyeth ever in this case they are more lightly to be punished If any commit Burglarie breaking up a doore or wall with intent to doe a Robbery if they be base companions they are to be condemned to the Mynes 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 Juglers and like Impostors which goe about deceiving of the people with false tricks and toyes hookes and such like which insinuate themselves into other mens houses with purpose to steale are punished at the discretion of the Judge If any steale or take away any thing out of the inheritance of another man before either the Will be proved or administration be taken an action of theft lyeth not because the inheritance during the time was counted no bodies but he is to be punished by the discretion of the Judge yea though it were the heire himselfe that did it Cosenage whereby a man craftily suppresseth some thing he should not or putteth one thing in anothers place to the deceit of him that hee dealeth withall or corrupteth such wares which hee uttereth 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 Crimen Stellionatus envious to man is censured by some ignominious shamful punishment or by disgracing the person by putting him out of the Office Place or Order he is in or by injoyning him some servile worke or by banishing him for a time or by some like punishment at the discretion of the Judge If any plough up a Mere balke or remove any other marke which hath accustomed to be a Marke or bound betweene ground and grounds which anciently was counted reverend and religious among men the offence is punished either by a pecuniarie mulct or by banishment or whipping at the discretion of the Judge Unlawfull Colledges Corporations and assemblies gathered together to bad uses as to eating drinking wantonnesse heresie conspiracie are punished as publick Routs or Riots otherwise at the discretion of the Judge All these before recited are called Popular Actions because not onely he that is injured but every other honest subject may pursue and prosecute the same Publick Judgements are such which immediatly pertain Publick Judgements to the punishment of the common-wealth for example sake and are examined tried and punished by a publick order appointed by Law the partie grieved making himselfe partie to the suite and following the same the party accused in the meane while remaining in prison or putting in suerties for his appearance and the partie grieved for the prosecuting of the same The chiefest of which sort is Treason which is a diminishing or derogation of the Majestie of the people or Prince on whom the people have 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 an other mans bed whose punishment anciently was death both in the man and in the woman but after it was mitigated in the woman shee being first whipt and then shut up in a Monasterie but by the Canons other paines are inflicted Under Adulterie are contained Incest Sodomy Baudery and all the rest of the sins of that kinde Publick force is that which is done by a company of armed men collected together and the correction thereof is perpetuall banishment Private 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 proved dye the death such as set mens houses a fire are to be consumed with fire themselves 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 pain of death the Parricide being first well whipt so that the blood doe follow in good plenty hee being sowed up into a sack together with a Dogge a Cock and an Ape is thrown into the depth of the Sea Such as make false Certificates forge false Wils Depose false wittingly suborne witnesses take money either to say or not to say their knowledge of that which they are demanded of in Judgement corrupt Judgement or cause it to be corrupted interline put in or raze out any thing out of any
is death Of such as despitefully on every light trifle sweare by God and * The crime of Blasphemy was so odious to the Emperour that he thought God would never suffer a blasphemer to goe unpunished for sins of this nature saith he the world is visited with famines plagues and pestilences therefore the Law heere provideth that a blasphemer shall undergoe ultimum suppltoium If thou meetest saith Chrysostome a man blaspheming 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 S 〈…〉 ke him a boxe on the eare give him a dash in the mouth and sanctifie thy hand with a 〈…〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a. free Hom. 1. ad Pâ—p A 〈…〉 chenum pag. 46â— edâ— Sancti blaspheme his holy name against whom also is provided the sentence of death That the Justices of Peace or other Officers to that purpose appointed speedily dispatch the businesse of those which are of their Jurisdiction that such as come as strangers and forreiners out of other countries having no just cause of their comming be sent back againe with their substance to such places as they came from but if they be idle vagabonds and rogues or other like valiant beggers they either drive them out of the place or compell them to labour yet evermore having regard to provide for such as are honest poore old sick or impotent That Clerks be first convented before their Ordinarie and that the Ordinarie doe speedily end the matter that they may not be long absent from their benefices and that they be not drawne before temporall Judges unlesse the nature of the cause doe so require it as that it be a meere civile cause or a criminall cause belonging wholely to the Temporall court wherein if a Clerke shall be found guilty he shall first be deprived from his ministerie and then shall be delivered over into the Secular hands but if the crime be solely Ecclesiasticall the Bishop alone shall take knowledge thereof and punish it according as the Canons doe require That where one dieth without issue leaving behind him brethren of the whole bloud brethren of the halfe bloud the brethren of the whole bloud have the preheminence in the lands and goods of the deceased before the brethten 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 leave unlesse they be knives or other such like small weapons SECT 8. What is the matter of the seventh Collation THat proofe by witnesses was devised 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 suspition of love hatred or corruption and that their dispositions be put in writing that after the witnesses be published and their depositions be knowne there be no more production of witnesses unlesse the partie sweare those proofes came a new unto his knowledge If Parents give profusely to one of their children the other notwithstanding shall have their lawfull portions unlesse they be proved to be unkinde 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 will not marry againe so that they renounce their priviledge granted unto them per Senatûs consultum Velleian and performe all other things as other Tutors doe That Governours of Provinces are not to leave their charges before they are called from thence by the Prince otherwise they incurre the danger of Treason That womens Dowries have a priviledge before all other kinds of debt that what Dowrie a woman had in her first marriage shee shall have the same in her second marriage neither shall it be lawfull for her father to diminish it if it returne againe unto his hand That a man shall not have the propertie of his wives dowrie neither a woman the property of that which is given her before marriage but the property of either of them shall come unto their children yea though they marry not again SECT 9. What is comprised in the eigth Collation WIls or Testaments made in the behoofe of children stand good howsoever imperfect otherwise they De Testament imperfect § Nos â—g 〈…〉 are but they are not availeable for strangers 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 and as the father divideth the goods among the children so they are to have their parts Of Hereticks and that such are Hereticks which doe refuse to receive the holy Communion at the Ministers hand in the Catholick Church That Hereticks are not to be admitted to roomes and places of honour and that women-Hereticks may not have such priviledge as other women have in their Dowries That is called marriners usurie that is wont to be lent to Marriners or Merchant-men specially such as trade by sea which kind of lending the Law calleth passage-money in which kinde of usury a man cannot goe beyond the 100. part That Churches enjoy a 100. yards prescription That such things as are litigious during the controversie are not to be sold away A litigious thing is that which is in sute betweene the plaintife and defendant That while the sute dependeth there be 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 use That in Divorces the children be brought up with the innocent partie but at the charges of the nocent and that Divorces be not admitted but upon causes in Law expressed That no woman whose husband is in warfare or otherwise absent shall marrie againe before she have certaine intelligence of the death of her former husband either from the Captain under whom he served or from the Governour of the place where he died and if any woman marry again without such certaine intelligence how long soever otherwise her husband be absent from her both shee and he who married her shall be punished as adulterers and if her former husband after such marriage returne back againe shee shall returne againe to her former husband if hee will receive her otherwise shee shall live apart from them both If any man beat his wife for any other cause than for which he may be justly severed or divorced from her hee De haered 〈◊〉 inteslat § Si quis autem shall for such injurie be punished If any man conceive a jealousie against his wife as that she useth any other man more familiarly than is meete shee should let him three severall times admonish him thereof before three honest and substantiall men and if after such admonition he be found to commune with her let him be accused of adultery before such a Judge who hath authority to correct such offences SECT 10. What is the
to be otherwise then as Bellarmine hath disputed whose opinion it is that these Fasts may be fetch 't from the Apostles times and that one of these foure is mentioned by S. Luke in S. Pauls voyage to Rome Act. 27. though the Syriack Paraphrast in that place plainely setteth downe for the Greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 calling it a Fast of the Jewes not Christians But the great and learned Cardinall in his devotion to sacred Orders tooke any opportunitie to make these Solemnities in every circumstance Apostolicall Foure fit times in the yeare are limited for the same where also is set downe how they are to be qualified which are to bee ordered what triall or examination is to be had of them what age they are to be of and what gifts of body or minde they are to be indowed withall what Sacraments may bee reiterated what not that Ministers sons are not to succeed their Fathers in those benefices wherein their Fathers immediately before were Pastors or Governours lest happley thereby there might In what manner and with how much care and Christianitie these Fasts have been heretofore observed it may bee noted out of the second Councell of Mâ—lâ—aine Tit. 1. Decret 22. where the Bishop is to command that upon the Sunday before these Fasts Paroâ—ht non solùm solenne illud jejuntum denunctent verumetiam in sua unusquisque eorum parochtali Ecclesia supplicationes Litaniasque pie ac religiose vel intùs habeat vel prosequente fidelium multitudine foris Ecclesiam sicut moris est obeat ut Dei ope imploratâ tum Episcopus in eorum delectatu quibus ordenes conferet Spiritûs Sancti lumine illustretur tum illi quibus conseruntur in vitae sanctitate doctrina religiosisque virtutibus proficiant In the fourth Councell of Millaine is set downe out of Leo the forme of bidding these Fasts in the Church Quod sacrorum temporum ratio c. and afterwards Quartaigitur sexta feria Sabbato â—eâ—unemus frequentes in Cathedrali Parochialique Ecclesia ad litanias Orationémque conveniamus quò sacris illis Feriâ—â—â— cibo abstinentiores esse debemus â—o abundantsore eleemosynarum liberalitate erga Christs pauperes effusiores sinius tum Sabbato sub vesperum orationem Parochialem communem celebremus qua pro spe foelicitatis aterna ad quam per fidem currimus pro sacra ordinatione quam eo die a Reverendissimo Episcopo haberi solenne est pro â—is commodis qua singulorum annorum revolutione consequimur Deo omnipotents gratias agamus c. Tom. Concil 4. Edit Bin. These foure Fasts at this present day are observed in our owne Church and are known unto us by the name of Emberweekes And so I finde it in Thomas Becon by opinion of much people these dayes beene called Imber-dayes because that our elder Fathers would on these dayes eate no bread but Cakes made under ashes so that by the eating of that they reduced into their mindes that they were but ashes and so should turne againe and wist not how soone c. And that these Imber-dayes were duely and devoutly observed by our Ancestours wee may bee perswaded out of the Lawes of King Cnute where it is said Chap 16. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That every man observe the Fasts which are commanded with all earnest care whether it be the Imber Fast oâ— the Lent Fast or any other Fast And Chap. 17. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 where the Law saith That it is meete and right that at these Fasts all malice being laid aside all men should bee at peace And concerning the outward observance in the 43. Chap. it is said 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Evill it is that upon a fast day a man should eate any thing till Meale time and it is much worse if hee should eate flesh meate This was the Religion of our Ancestours and if ignorance could admit of so much devotion how much more would bee expected from these knowing times be claimed a succession or inheritance in the same that no bondmen or accountants men distorted or deformed in body bigamists or twice married men bee admitted to holy orders Of wandering Clerkes and how that they are not to be admitted to minister in an other Diocesse than where they are ordered without the Dimissorie Letters of the Bishop under whom they were ordered Of Archdeacons Archpriests Sacrists Vicars what they are and wherein their particular offices doe consist Of the office of Judges in generall and their power whether they be Delegats Legats à latere or Iudges ordinarie Of difference in Jurisdiction betweene Ministers Ministers and what obedience the inferiour Ministers are to yeeld unto their superiours Of Truce and Peace which Ecclesiasticall Judges are to procure that truces be kept from Saturday in the Evening untill Munday in the Morning and that there be no fighting from the first day of the Advent until the eight day after Twelfe tide and that warre likewise doe cease from the beginning of Lent untill the eight day after Easter under paine of Excommunication against him that presumeth to doe the contrarie and that in time of warre neither Priests Clerkes Merchant-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 Judges before men enter into the dangerous events of Law are to perswade the parties litigant by private covenants and agreements to compound the controversie betweene them wherein if they prevaile not then the parties are to provide themselves of Advocates Proctors or Sindects according as they are private men or bodies politick to furnish their cause and direct them in proceeding If any Church hath beene hurt in any contract of bargain 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 self which is agreeable to Law conscience The like grace is to be granted to all other Litigants whatsoever who have by feare or violence or any other like unjust cause beene hindered from the prosecution of their right If any seeing a suit like to be commenced against him doe either appeale before he be served with Proces or alienate away the thing wherupon the suit was like to grow he is to be compell'd to hold plea of the same cause before the Judge from whom he did appeale and to answer his adversarie as though still he were owner of the thing hee did in policie sell or alienate away Many times things which otherwise can have no speedy end by Law are compounded by Arbitrement Arbitrators ought to be odde in number that if they disagree that which is concluded by the greater part may prevaile An arbitrement is a power given by the parties litigant to some to heare and determine some matter in
sute betweene them Arbitrement and to pronounce upon the same to which they are to bind themselves under a penaltie to stand SECT 4. What is conteined in the second Booke of the Decretals THe first Booke having set out the first object of the Law which standeth in the persons who make up the Judgement as in the person of the Judge himselfe the Advocates Proctors and Clients there followeth in the second Booke the second object of the same which is the Judgements themselves which are to be commenced by a Citation and that in a competent Court fit for the same by a Libell offered up in the Court by the plaintife to the Judge which is to containe the summe of that which is required in Judgement where if the defendant doe againe reconvent the plaintife he is to answer albeit the defendant be not of that Jurisdiction the Libell being admitted the defendant is to joyne issue and yet before either of them enter any further into the cause that there may be faire and sincere dealing in the same and that all suspition of malitious dealing therein may be taken away each of them are to take an oath the Plaintife that hee doth not of any malice prosecute the sute against the Defendant or the Defendant of any malice mantaine the sute against the Plaintise but that they verily beleeve their cause is good and that they hope they shall be able to prove the one his libell the other his exceptions if he shall put in any into the Court. The cause being begun delayes are often granted if either there come any holiday betweene or any other like just cause be offered as for producing of witnesses and such like if there be no just cause of delay then the Judge is to goe on in the due course of Law provided alwayes that more be not demanded by the plaintife than is due and that the cause possessory be handled before the petitorie and that hee that is spoyled be first and before all things restored to that thing or place whereof he was spoyled or from which hee was put yea though he have nothing else to alledge for himselfe besides the bare spoliation it selfe If the one side or other wilfully or deceitfully decline Judgement the Judge is to put the other in possession of that which is in demand or at the least to sequester the fruits and possessions of that which is in controversie but if both parties appeare and joyne issue affirmatively then is it but a question of Law and not of fact neither doth there remaine ought else to be done by the Judge but that he give sentence against him that hath confessed it and put his sentence in execution But if issue be joyned negatively then is the plaintife to prove his Libell so farre as it consists infact by witnesses which are to be compelled by Law if they will not come or appeare voluntarily by publick and private instruments by presumptions by conjectures by oath which being done the Defendant in like sort is to be admitted to prove his exceptions and cleere his prescription if he be able to alledge any in which he is Plaintife neither is hee bound thereto before the Plaintife have perfected and proved his owne right After proofes are brought on either side and the same throughly disputed on by the Advocates the Judge is to give sentence which he is to frame according to the Libell proofes formerly deduced in the cause The sentence being given Execution is to be awarded unlesse there be an appeale made from it within ten dayes by the Law but fifteene dayes by the Statute of this Land from the time the party against whom sentence was given had knowledge thereof or unlesse it be appealed incontinently at the acts and in writing before a publike Notary or at the least the party against whom the sentence proceeded with due time take their journey toward the higher Judge to prosecute the same by whom the former sentence is either confirmed or infirmed in the second instance SECT 5. What is the subject of the third booke of the Decretalt THe third booke conteineth such Civile matters and causes as are lyable to the Ecclesiasticall Courts as the honest life or conversation of Clerkes and their comely comportment in all their demeanour with what women they are to cohabit and dwell with whereby they may be free from all suspition of ill life and with whom not which of them may bee married 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 unto their cure and if they returne not upon processe sent out against them how they are to bee punished namely by deprivation 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 just cause but if any Clerke or Minister be sicke and his disease be curable he is to receive the benefit of his prebend or dignity in his absence as though he were present but if it be contagious or uncurable then he is to be put from the exercise of his office and a helper or coadjutor to be joyned unto him and they both to be maintained of his stipend Prebends or dignities are to be got by institution which are to be given by the Bishop or his Chancellour or such other as have Episcopall jurisdiction without which neither any benefice is lawfully gotten nor can lawfully be reteined Benefices not voyde ought neither to be granted neither to be promised but such as are voyde ought to be granted within sixe moneths after knowledge of the voydance thereof otherwise the grant of them devolveth and commeth unto the superiour hee that causeth himselfe to be instituted into a benefice the Incumbent thereof being alive himselfe is to be deposed from his orders While any Benefice or Bishoprick is void nothing is to be changed or innovated in it and such gifts sales or changes of Ecclesiasticall things as are made by the Bishop or any other like Prelate without the consent of the Chapter are void in Law and such Benefices as doe become void are to be bestowed without any impairing 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 Tractates 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 right of Patronage of Synodals and Procurations of consecration of Churches of Celebration
themselves which being once appropriated to God could be only his but to the dispensation of them according to which it was necessarie that the Bishop should dispose of the presentation and fill the places with such Inbumbents as might enjoy them in Gods Right and execute their function answerably to the Founders good purpose This Act of the Bishops being as by them it was accounted more a matter of Care than Power was usually understood by the moderate expressions of Nominare Prâ—sent 〈…〉 e or Commendare still saving the Right to God and to themselves only such a conscientious disposition thereof as might redound to his greater glorie This power the Bishops transferred to the Lay Patron yet so as it should be necessarie for the Patron to have recourse to the Bishop that hee might qualifie his Clerke for the Rectorie by ordination and that it should be lawfull for the Bishop to devest the Patron of this Right according as hee should be moved by such causes as were found to be of a considerable importance so it seemeth by the Law where the Patrons Right is said to be such a power in qua eos Ecclesia huc usque susti 〈…〉 t. De jur Patron C. Quoniam The reason that moved the Diocesan to let the Patron share with him in this prerogative was for the Patrons encouragement for so it must be conceived of this right that it was an honorable priviledge therfore the Abbot in his definition did well to call it jus honorificum This reason in respect of the Patron tooke place because of the great need which then was of those which were able and would be willing to erect or endow a Church for as much as all places at their beginnings were ever unfurnisht for we shall finde in some that they had no Churches at all but instead of a Church they were content to say prayers under a Crosse in the open field this is reported of our own Ancestors in the Peregrination of Wilibald Sic mos est Saxonica gentis 〈…〉 d in 〈…〉 ullis nobilium bonorúmque hominuÌ„ pradâ—â—s non Ecclesiam sed sanct a Crucis signum Dowino dicatum cum magno honore almum in alto erectum ad commodam diurna orationis sedulit atem solent havere Hodâ—peric Hierosolym Wilibald Ext at ad Canisium Tom. 4. Antiq. Lect. part 2 pag. 486 Edit Ingolst 1603. In other places there might perhaps be Churches but sometimes they were no better than those which are spoken of by Asser B of Shireburne in the life of K. Alured Churches of so poore and meane a structure that when the Candles were set before the Reliques they were oftentimes blowne out by the wind which got in not only per ostia Ecclesiarum but also per frequente parietum rimulas as the Author there hath said in somuch that the ingenious Prince was put to the practise of his dexteritie and by occasion of this Lanternam ex lignis bo vinis cornobus pulcherime construere imperavit by an apt composure of thâ—â— hornes in wood hee taught us the mysterie of making a Lantherne made the one by Richard the second the other by his successor These exigencies were the causes which mov'd the Bishops to give all encouragement to the Patron and admit him into the honorable imploymnet of Filling the Churches but so as upon occasion given he might resume this right to himselfe which upon the the abuse thereof hath accordingly followed That the Laitie could never yet abide the Clergie is noted in the Law for an old saying De immunit Eccl. C. Clericis lib 6. and Basil the Emperour in the 8. Synod could say of the Lay people of his time Adeo multos malitia in insaniam accendit c. ut quòd pedes sint minimè cogitantes legem ponere velint oculiâ— that malignitie had so set on fire the madnesse of some that forgetting themselves to be the feete they would needs teach their eies to see But we are more happy and need not make this our owne complaint being no otherwise troubled than with a very learned and most religious Laitie But how the Lay Patrons heretofore behaved themselves in the matter in hand we shall see Though I mention only the Lay yet I excuse not the Clergie Patrons otherwise than thus that they were but few and not so likely to wrong the Church in regard of their proper interest The Patrons abused their libertie many waies if we consult with the severall Councels which have provided against this we shall find them sometimes presenting illiterate and unworthy men Priests of the lowest of the people men that can thinke so meanly of the Ministerie as to make suit to come into the Priests office for a piece of bread 1. Sam. 2. This is noted in the Councell at Colen An. 1536. where they are said to present their owne sonnes and kindred citra ullum delectum aut discrimen scientia morum ac atatis There also it is complained that there were some qui admotis nomen tantuÌ„ relinquunt that promoted the Incumbent only to a bare name reserving the revenue to themselves ausuquodam sacrilego as they are there censured by the Councell and some were so exorbitant in this kinde that they would present their yong boyes and children as if by the same law of Nature they could beget Priests and men Concil Palent Const 14. This is litle better then that of Miâ—ha the man of mount Ephraim qui ipse sibi fecâ—â— sacrificuluÌ„ though this might be well endured that the Sonne should make the Priest when the Mother the Founder had made the Gods But this was done too when there was no King in Israel and every man did that which was right in his owne eyes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 otherwise so abominable an act could never have pass'd as the son of Gersom hath observed upon the place The Councell of Salizburgh under Martin the 5. telleth us of certaine Patrons that used to compound with the Incumbent for a Moyerie of the profits and this in the German Councell under Conrade is styled vulnus cancrosum et simontacum And see to this purpose the Councel of Wormes in 886. Vt Presbyters Others not contented with a part of the obventions made the bargain to have halfe for in the second Bracaran Councell C. 6 we finde some that built their Churches non prode v 〈…〉 fides sed pro quastus cupiditate not for devotion but filthy lucre that they might share alike with the Incumbent in the offerings of the Church Sometimes it fell out that the same Church had severall Patrons and these in the vacancie for the most part disagreed about the Presentee and this was a great inconvenience for in the interim during their discord the Bishop was to take away the Reliques and seale up the Church Some Patrons for their Presentations expected to be gratified with gifts and largesses and the like and
and is by Aristotle held to be a vertue although by S. Paul it is condemned as a vice but if it bee in homely and grosse sort delivered then is it accounted to be a Ephes 4 5. kinde of rudenesse or rusticitie but whether way so ever Extra de presumpt c. 1. they be uttered there is for the most part no advantage taken against them unlesse thereby there follow any discredit to the party upon whom such jests are broken for then are they not without blame Noxius enim ludus est in vitio neither ff ad l. Aquiliam l. nam ludus can that bee called a jest or sport whereby a mans good name is hurt or any crime imposed upon him The like may be said of those which speak hardly of any by the lubricitie of their tongue or weakenesse of their braine who for that they are not thought to speake such words maliciously passe for the most part unpunished Lubricum enim ff ad l. â—ul Maâ—estatis l. famoâ—i linguae non facilè ad poenam trahendum est no though a man in this case speak ill of the Prince himselfe And the Civile Law is so farre from taking hold of such words in these cases that the Emperour himselfe hath said of them thus Si id ex levitate processerit contemnendum est si ex insania miseratione 〈◊〉 Si quis Imperatori maledixerit dignissimum est But if the cause of such words bee rankor or malice then are they altogether to be punished for that there can be no just excuse made for them Such diffamatory words as proceed of malice imply either Bâ—bic cap. Si culpa de inju 〈…〉 matters of crime or matters of defect Such as imply matters of Crime either are such crimes which it is expedient for the Common-wealth to know as Lanwood provinc de sent excomm cap. 1. verb. malâ—â— rose Treason Felonie Murther Incest Adulterie and such like to the end they may receive due punishment whereby God may bee pleased and the Common-wealth satisfied Or they are such crimes or faults which it is not expedient for Bâ—â—ic ubi supr the Common-wealth to be acquainted vvith as vvhere one calleth one prodigall or spend-thrift For albeit it bee exexpedient for the Common-wealth that no man mis-spend his estate for that the Common-wealth hath as it were an interest in every private Subjects state yet this is rather his owne hurt than any other mans and that which hee spends away unthriftily commonly turnes to another better subjects gaine whereby the Common-wealth is relieved in one that it lost in another 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 prosecuted as may appeare by certaine Judgements and consultations which have issued out thereon but now let Term. 12. Hen. 7. fol. 22. Regist pag. 49. men prosecute them never 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 have so infranschised themselves as that they take upon them to confine the Ecclesiasticall Law how farre it shall goe therein Which limitations notwithstanding as farre as I can conceive are but distinctions without differences and so are in very deed but bare Synonomies that is diverse names expressing one thing for all the words in the said limitation inferre no more than this that Ecclesiasticall men are not to deale in matters of Diffamation but vvhere the matter of Diffamation is onely Ecclesiasticall and yet I reverence the Author thereof as a great man and of like excellencie in this Law as Papinian vvas in the other Law and this I thinke to be commendation enough for never any Lawyer in former age had more commendation or eulogie of vvit than himselfe had In the first of these cases if a man proceede by ordinary C. ad L. Iu 〈…〉 repetunda 〈…〉 um l. 1. 2. course of Law either for the punishment of the sinne as by presenting the offender to the Ordinary or indicting him before the Temporall Judge or by admonishing him by any charitable denunciation with purpose to amend him and to recall him from such offensive waies as hee is charged to walke in Or do any thing in Judgement for the defence ff de aqua plu arcenda l. 1. §. denique L. Proculus l. fluminum in fin ff de damne infecto ff de regul juris l. factum §. non videtur of his owne cause as in objecting some thing against the partie himselfe or his witnesses either for the elevating or discrediting of the truth of the cause or the testimony of the witnesses there can be no advantage taken against him for he cannot be said to defame which useth the libertie the Law gives him albeit in this case some advise that a man shal object none of these matters against another in judgement but when his cause necessarily requires such things to be spoken for the defence thereof and that the partie that objecteth them doth protest he doth it not with a calumnious minde but that the defence of his cause otherwise would not be justified But if any man doe any of these things malitiously with purpose rather to utter his owne cankred stomacke than L. Labeo de supell legat C. de famosiâ— libel l. 1. ff ad l. Aquileam l. si ita vulneratus that hee would benefit the Common wealth thereby then is hee punishable for although it be behoofefull 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 uttered in reproach and choller Of the second sort although there be some that containe pettie crimes yet are they many times so frivolous as that they yeeld no action for frivolous and small things the Law regardeth not For such Diffamations as arise upon defects if the defects be such that the contagion thereof is to be feared unlesse the people be forewarned of the danger that may ensue thereon as in cases of Leprosie the Plague the French Pox and other like infectious diseases and that it be revealed with a sincere minde rather to cause men to refraine their companie for feare of the infection than of any malicious humors against the partie thereby to reproach him it is no Diffamation But if it be uttered in any spleene or choller against the partie defective then is it actionable for it is C. quando quib quarta pars l. 2. lib. 10. an uncivile part to lay open another mans defects but if the defects be such as it nothing availeth the Common wealth they should be knowne as where a man objecteth against another any imperfection of his minde or deformitie of his body
goods and lands but newes being after brought that the said Ralphe was dead beyond the Sea Francis the Brother of the said Ralphe spoyled the said Richard of the possession of all the goods and lands he had of the said Ralphe his Grandfather for that he did pretend the said Agatha his Niece and Mother of the said Richard was not borne of lawfull Matrimonie so that neitheir shee her selfe nor her sonne ought to succeed the Brother of the said Francis but that the inheritance thereof did belong unto himselfe whereupon the said Richard being thus spoyled by Francis his great uncle obtained Letters of restitution to the Bishop of London the B. of Worcester and the B. of Excester under this forme That before they entred into the principall cause which was this Whether the said Agatha were borne in lawfull Matrimonie or not they should restore the said Richard to his Grandfathers inheritance But the Bishop of Rome after understanding by the said Delegates that the plea of inheritance within this Realme did not belong unto the Church but unto the King recall'd that part of his rescript which concerned the restitution of the said Richard to his inheritance and gave order to the foresaid Bishops to proceed in the cause of legitimation willing them to inquire whether the said Agatha were borne of the said Aneline in the life time of her husband Allin when she dwelt and cohabited with him as with her husband or whether the said Ralphe Father of the said Agatha kept the said Aneline openly and publickly while the said Allin yet lived And if they found it to be so then they should pronounce her the said Agatha to bee a Bastard for that Anelina her Mother could not bee counted to bee a wife but a whore which defiling her husbands bed presumed to keepe company with an other her husband yet being alive 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 Ralph and Aneline as the Decretall it selfe shewes Neither was there any authoritie that opposed it selfe against that proceeding but held it to be good and lawfull though it were in terme of speciall Bastardie for then that which they now call speciall Bastardie was not borne Besides hereby it appeareth that the Ordinaries then did not onely proceed in cases of Bastardie incidently that is when a suit was before begun in the Common Law upon a triall of inheritance and that by writ from the Temporall Courts but even originally and that to prepare way unto inheritance or any other good that was like to accrue unto a man by succession or to avoid any inconvenience that might keepe him from promotion as may appeare by this practise following Priests in the beginning of the Raigne of Henry the 3. Constitut Otho innotuit de uxoratis à benefic 〈…〉 amovendis yet married secretly and their children were counted capable of all inheritance and other benefits that might grow unto them by lawfull marriage so that they were able to prove that their parents were lawfully married together by witnesses or instruments which many children did either upon hope of some preferment that by succession or otherwise was like to come unto them or to avoid some inconvenience that otherwise might light upon them for the want of that proofe some their parents yet living others their parents being dead and the proceedings before the Ordinary was holden good to all intents and purposes even in the Common Law for otherwise they would not have so frequented it for as yet there was made no positive Law against marriages of Priests and Ministers but the Church of Rome then plotting against it for that by that they pretended the cure of Soules was neglected and the substanc of the Church wasted and dissipated did by Otho then Legate à Latere to Gregory the ninth order by a Constitution that all such Ministers as vvere married should be expelled from their Benefices and their Wives and Children should be excluded from all such livelihood as the Fathers had got during the time of the Marriage either by themselves or by any middle person and that the same should become due unto the Church wherein they did reside and that their children frō that time forth should be disabled to injoy holy orders unlesse they were otherwise favourably dispensed withall which Constitution although it wrought to that effect to barre Priests for that time of their Marriage untill the light of the Gospell burst out and shewed that that doctrine was erronious yet to all other effects the proceeding 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 hee 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 farre as concerning those things wherein the Ecclesiasticall Laws are hindered by the Temporall in their proceedings contrary to Law Statute and custome anciently observed which was the third part of my generall division Now it followeth that I shew wherein the Ecclesiasticall Law may be relieved and so both the Lawes know their owne bounds and not one to over-beare the other as they doe at this day to the great vexation of the subject and the intolerable confusion of them both which is the last part of this Treatise PART IV. CHAP. I. SECT 1. The meanes how to relieve the Civill Law that they are of two sorts that two things are required to the first meane and that the former of these is the right interpretation of Lawes and what that is THe meanes therefore to relieve the profession of the Civile Law are two The first is by the restoring of those things which have beene powerfully by the Common-Law taken from them and the bringing of them backe againe unto their old and wonted course The other is by allowing them the practise of such things as are grievances in the Common-wealth and fit to be reformed by some Court but yet are by no home-Law provided for The first of these stands in two things whereof the one is the right interpretation of the Lawes Statutes and customes which are written and devised 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 defective in the penning made in the behalfe as it is pretended of the Ecclesiasticall profession but yet by reason of the unperfect pe 〈…〉 g thereof are construed for the most part against them The right interpretation of the Law Statutes and Customes pertaining to the practise standeth as is pretended in the Judges mouth who notwithstanding hath that authoritie from the Soveraigne and that not to judge according as him best liketh but according as the right of the cause doth require The supply or
reforming of that which is over-plus or defective is in the Parliament so notwithstanding as that the Prince evermore breatheth life into that which is done Lawes Statutes or Customes are then best interpreted when as the very plaine and naturall sense of them is sought after and no forraine or strained exposition is mixt with them for that turneth justice into worme-wood and judgement into gall then that the Judge be not too subtill in his interpretation but follow such exposition of the Lawes as men of former age have used to make if they be not plainly absurd and erronious for oft shifting of interpretations breedeth great variance in mens states among such as have busie heads and much discrediteth the Law it selfe as though there were no certaintie in it with which although the fage Judges of our time cannot be charged for ought that I know yet I cannot tell how men much complaine that Lawes are farre 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 the Spirituall Court where the interpretation upon the three Statutes of Tythes made by King Henry the eight and Edward his sonne among other inconstancies of other Lawes hath such great varietie of sense and understanding in sundrie points thereof as that if the makers thereof were now alive and the first expositors thereof sate in place of Judgement againe the Statutes being measured by the interpretation they now make of them vvould hardly acknowledge them either to be the Statutes that they then made or the other did after expound and declare for every of these Statutes and the sense that was given of them vvas wholy for the benefit of the Church according to the tenor thereof but as they now receive explication they are not onely not beneficiall unto the Church but the greatest hinderance to the same that may be for the words are made to jarre with the sense and the sense vvith the vvords neither is there kept any right analogie in them and therefore the Reverend Judges are to be intreated because they challenge unto themselves the opening of the Statutes alone albeit peradventure that be yet subjudice where the Statute of Ecclesiasticall causes is to be interpreted that they would recall such exorbitant interpretations as have of late gone abroad upon these Statutes and restore them to their ancient sense and understanding No man can so cunningly cloake an interpretation but another will be as cunning as hee to spie it out and then the discredit will be the Lawes Lib. 1. Politâ—â— A small errour saith Aristotle in the beginning is a great one in the end and hee that goeth out of the way a little the longer he goeth on the further he is off from the place his voyage was to and therefore the speedier returne into the way againe is best The old Proverbe 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 dangerously than under the authoritie of the Law and therefore one saith very well that There are two salts required in a Judge the one of knowledge whereby hee may have skill to Judge uprightly the other of conscience whereby hee may be willing to judge according to that as his skill leadeth him unto both which being in the grave Judges it is not to be doubted but they will be easily induced to review their owne and their predecessours interpretations and reduce such exorbitant expositions as have scaped out thereof unto the right and naturall sense thereof which if perhaps they shall be loath to do for because it makes for them or for some other like partiall respect then humble supplication is to be made unto his Majestie that hee himselfe will be pleased to give the right sense of those things which are in controversie betweene both the Jurisdictions for his Majestie by communicating his authoritie to his Judge to expound his Lawes doth not thereby abdicate the same from himselfe but that hee may assume it againe unto him when and as often as hee pleaseth Whose interpretation in that is to be preferred before theirs first for that his interpretation is impartiall as hee that will not weaken his left side to make strong his right for so are these jurisdictions as they are referred unto his politique bodie but will afford them equall grace L. 1. num 8. C. de legibus L. 1. num 7. C. codâ— omnes populi ff de justit jure and favour that hee may have like use of them both either in forraigne or domesticall businesse as occasion shall serve then that his Judges interpretation maketh right onely to them betweene whom the cause is but his highnesse exposition is a Law unto all from which it is not lawfull for any subject to recede neither is it reverseable by any but by himselfe upon a second cogitation or him that hath like authoritie as himselfe hath and therefore most fit to be interposed betweene Jurisdiction and Jurisdiction that the one partie be not Judge against the other in his owne cause which is both absurd and dangerous And let this suffice for the right interpretation of Lawes and Statutes Now it followeth that I speake something of the supplies that may be made to the defects that are in the same SECT 2. The second thing required to the first correcting of superstition and supplying of defective Statutes IT is not to be doubted but it was the full minde and intent of the Lawmakers which made those three Statutes to infeoffe the Ecclesiasticall Courts in the inheritance of all those causes that are comprised in those Statutes save those that are by speciall name exempted and that they did by the said Statute as it were deliver unto them full and quiet possession of the same for even so sundrie branches of the said Statute do shew as I have elsewhere made it manifest and that there hath growne question upon many points thereof and that the professours of the Ecclesiasticall Law have beene interupted in the quiet possession thereof commeth of the unperfect penning of the same and not of any just title or claime that may be made by the professours of the other Law thereunto but this is a thing not onely proper to these three Statutes but also common to all other Statutes which are writ of any Ecclesiasticall causes within this Land which notwithstanding may be remedied if it seeme good unto his sacred Majestie and the rest of the wisedome 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 defective and yet keeping 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 §
A VIEW OF THE CIVILE AND ECCLESIASTICALL LAW And wherein the Practice of them is streitned and may be releeved within this Land Written by Sr THOMAS RIDLLY Knight and Doctor of the Civile Law The second Edition by I. G. Mr. of Arts. OXFORD Printed by William Turner Printer to the University 1635 Cum Privilegio TO THE READER THis Learned and usefull View of both the Lawes once more adventureth it selfe upon the Opinion of Men and it may now hope to receive a more indifferent censure then before as being committed to a season more mature and more perfectly dispos'd for howsoever the Time that first brought this forth could not be charged with any notable distemper yet the Common-wealth wee live in is of that thriving nature that however the present time may still bee good yet it alwayes makes the succeeding Age better then it selfe This argues the State not neare her ruine though some unruly Spirits led by an irregular Motion have beene bold to anticipate as if every one that bad so much pitty as to feare had also judgement enough to foresee the ruine of a Kingdome 'T was more then enough for such Men to set downe the Fate of a single-soule without resolving upon the doome of a whole Nation But these that would seeme to know such high things are most properly punished by being neglected for to a Man that would bee thought to know and knoweth not no greater miserie can happen then that hee should faile of his Expectation If I were to serve or follow any time I would propose the Present which as it hath lesse of the pretences of former Ages so it hath much more of the Moderation and if it needs must be suspected that the State is not farre from her fall let this be the onely reason because she draweth so neere to her perfection That which heretofore most of all incumbred these Dominions was the disproportion of the Civill Power to the Ecclesiasticall This a Great Prince abated and the Act was truly masculine yet like those of the strongest importance would not be perfected by the same hand therefore it was by him so fully done on the one side that it might be feared lest it should runne over on the other To prevent this the discretion of these late discerning times hath warily provided the wisedome of the Prince having so well tempered both the Powers that it may now be hoped they shall agree one with an other as both doe in him by a glorious correspondence The State thus bending towards the best and thé most perfect mediocrity this Author whose hope that alwayes was couldnot but revive again therefore it is that though hee be dead hee yet speaketh If still there be that will reprehend these our paines as if they were cast upon a man too much sought after be it so but these men have least cause to complaine for if the matter of this Booke be as they suppose then the onely way to suppresse it will be to make it common for things of that nature are least of all enquired for when they are most easily to be found but if they rarely appeare they are more eagerly sought after and the more obstinately esteem'd VVhen first I would see this Treatise I beheld it at a distance and not without some prejudice for so I was prompted by the insinuations of a fallible Report but finding it under the Protection of the High and Mighty Prince Iames I tooke libertie to resolve against all popular contradiction And now to seeke any other Patron for this new Edition I have thought it altogether inglorious For what can the man doe that commeth after the King For a Note or two which I have here and there timerously let fall If the Reader expect that I should aske his pardon there may bee cause but there is no convenience for this kinde of Complement is now adayes indifferently set before those things that are well and those that are ill done Besides it would argue Certaine follie to be engaged there for pardon where our choyce is to offend VVhat I have here done amisse I shall hereafter hope to rectifie either by doing something that shall be better if that may be or which is the safest way by doing so no more I. G. TO THE HIGH AND Mighty Prince IAMES by the grace of God King of Great Britaine France and Ireland Defender of the Faith c. MOST gratious Soveraigne since it hath pleased Your Majestie 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 Civile Law and the Temporall Law of this Land by which joyntly Your Majesties State is managed next after Your owne most rare providence and the wisdome of such whom it hath pleased Your Highnesse to associate unto Your selfe in the great affaires of Your Kingdome I have been bold to offer unto Your Majestie this simple Treatise as that which doth lay out the cause of those Differences more particularly than any man hitherto hath expressed the same In comming to which because I doe speake for those parts of Your Majesties Lawes which are lesse knowne unto Your people and esteemed no otherwise of them than they see the practice thereof to bee here within Your Land I have thought good as it were in a Briefe to set out the whole summe 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 conceived to bee So that the profession of the Ecclesiasticall and Civile Law may appeare to the world neither to bee idle nor unfit for the State so farre as it hath pleased the Royall Predecessours of Your Highnesse to give entertainment unto it and Your Majestie Your selfe to admit of it In all which there is no other thing sought than that such greevances as have beene of late offered by one Iurisdiction unto the other and in consequence to all Your Subjects who follow any suits in the Civile or Ecclesiasticall Courts may by Your Princely wisdome be considered and by Your authoritie be redressed if they be found to be greevances 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 ever goeth to the worse and that which is mightier prevailes against the other the professors thereof being rather willing to give Lawes and interpretations to other than to take or admit of any against themselves For which the weaker appeales unto your Highnesse humbly desiring Your Majesties upright and sincere Iudgement to discerne where the wrong is and to redresse it accordingly which is a worke worthy Your Majesties high consideration For as the Land is Yours so also the Sea is Yours and the Church is under Your Highnesse protection as a Childe is under his Tutor so
that all the Lawes thereof appertaine unto Your Majesties care comfort alike For which not onely the whole profession of Your Ecclesiasticall and Civile Lawyers that now are but those which shall succeed in those places for ever hereafter unto the worlds end will praise and magnifie Your Majesties gratious favour towards them and wee that now are will pray to God for the long and happie prosperitie of Your Highnesse and Your Posteritie over us during the continuance of this Heaven and this Earth and after the passing away thereof a perpetuall fruition of the new Heaven and the new Earth wherein righteousnesse onely shall dwell for ever Your Majesties most humble and dutifull Subject THOMAS RIDLEY To the Reader GEntle Reader I confesse as I meditated this Treatise upon mine owne motion as I doe somtimes matters of other argument when my leasure serves mee thereto so also I doe not set it out to the view of the world upon mine owne motion but was desirous it should have beene kept in saving that I must obey where I am bound The thing that gave mee cause to this meditation was that I saw many times how meanly men esteemed of the Civile and Ecclesiasticall Law of this Land valuing them by the practice of so much of them as we have among us And therefore I thought good although not wholly to unfold the riches of them yet to make shew of them folded up in such sort as Mercers make shew of their silkes and velvets laid up in whole peeces in their shops whereby it may bee seene what great variety they have of all these kinde of wares although the goodnesse of the ware it selfe cannot be discerned because it is foulded up Besides seeing how frequent prohibitions are in these dayes in causes of either cognisance more than have beene in former time I thought it not unworthy my labour to inquire and see upon what just grounds they are raised up in this multitude not of any humour I have to gainesay the lawfull proceedings of any Court which I reverence and most readily acknowledge their authoritie in all things belonging to their place but to know and search out the truth of those suggestions that give cause unto 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 pres sed by the partiall interpretation as it supposeth of the other inquire the ground of such interpretation and labour to redresse it if it may be by the right interpretation thereof To the end that either Iurisdiction may retaine their owne right and not the one bee overtopt by the other as it seemeth to be at this day And that in such matters as they concerne of their owne right as depend of no other authoritie but of the Prince alone which is the thing onely that is sought in this little Treatise And therefore the Reverend Iudges of this Land are to be intreated that they will vouchsafe an equall 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 perceive it nor so daunted but that they can flie for succour unto him to whose high place and wisdome the deciding of these differences doth of right appertaine PENELOPE is said to have had many wooers comely in person and eloquent in speech but shee respected none but her owne ULYSSES Such should be the minde of a Iudge that whatsoever other appearance or shew of truth be offered one saying This is the true sence of the Law and an other that yet the Iudge should respect none but the very true germane and genuine sence thereof indeed Which if it were religiously or indifferently observed in every Court then needed not this complaint that now is but every Iurisdiction should peaceably hold his owne right such as the Prince Law or Custome hath afforded unto it THOMAS RIDLEY A VIEW OF THE Civile and Ecclesiasticall Law also wherein it is straightned and wherein it may be releeved PART I. CHAP. I. SECT 1. The Division of the whole booke into foure parts What right or Law is in generall What is the Law publick and what the Law private What is the Law of Nature What is the Law of Nations What is the Law Civile BEfore I shew how necessary it is for his Majestie and the Realme to maintaine the Civile Ecclesiasticall Lawes as they are now practised among us in this Realm I will set downe as it were in a briefe what the Civile and the Ecclesiasticall Lawes are then will I shew how farre forth they are here in use and practise among us thirdly wherein wee are abridged and put beside the use and possession thereof by the Common Law even contrary to the old practise thereof and the true sence and meaning of the Lawes of this Realme and the Statutes in this behalfe provided and lastly wherein we might be releeved and admitted to the practise of many things in the Civile Law without prejudice to the Common Law and so both the Lawes might know their owne grounds and proper subjects and not one to be jumbled with the other as it is at this day to the great vexation of the Subject But before I speake of the Civile Law in particular I will define what Right or What Law is Law is in generall Law therefore is as Vlpian saith L. 10. in fin ff de Justicia Jure the knowledge of Civile and humane things the understanding of those things which are just and unjust This Law is primarily divided into the Law publick and the Law private The 1. Jus publicum publick is that which appertaineth to the generall state of the common-wealth for I meane the Law publick not in respect of the Forme that they were publickly made as we make lawes in our Parliaments for so all the Civile Law is publick as made by publick authority but in respect of the object or end thereof for that they concerne the Church the Clergie the Magistrate and other like publick functions none of which levell at the rule of equity or equality between man and man as private lawes doe but ayme at that which is most fit ingenerall for the common State 2. Jus privatum The private Law or the private mens Law is that which concernes every singular mans state which for that it is occupied in giving every man his owne it must of necessitie be proportionable to the rule of Equitie and Justice Private Law is of three sorts the law of Nature the law of Nations and the law Civile The law of Nature is that which Nature hath taught every living creature as the care and defence of every The Law of Nature creatures life desire of libertie the conjunction of male
childe A childe his father being dead by the order of the Judge is to be brought up with his mother unlesse shee hath fled unto a second marriage which if shee have done then is he to be brought up with some of his neerest kinne such as is knowne to be an honest man and will have a care of his good education with whom the Judge is to allow him such maintenance as all his stock be not spent therein but evermore somthing be left against he come to full age When the time of tutelage or curatorship is ended they are to render account unto the Judge what they have received and how they have expended the same and what residue is left and according as their proofes are either by oath or otherwise so the Judge either alloweth or disalloweth the same If the Tutors or Curators prove bankrupt or unable to satisfie the Pupill or Minor then lyeth an action against their suerties for the satisfaction of the same and if both of them faile then lyeth it against the Judge or Magistrate if either he have not received any caution at all of the Tutors or Curators or hath received an unsufficient caution or unsufficient suerties knowing them to be unsufficient otherwise he is not to secure fortune and future cases of the childe the Tutors or Curators are to sell nothing of those things that are the childrens saving such things which by keeping cannot be kept unlesse they have the order or decree of the Judge thereunto which the Judge is not to decree unlesse the childe be so farre in debt that it cannot be satisfied without some part of the other goods or there be some other like just and necessarie cause like unto this which may not be avoided As Minors have Curators and Governors so also mad persons and prodigall persons are appointed to have governors by law for that they can no more governe their owne state than the others can Prodigall persons are they that know no time nor end of spending but ryot or lavish out their goods without all discretion SECT 7. That the fift part comprehendeth nine bookes and the matter thereof VNder the fift Section which compriseth in it nine bookes are conteined 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 either put in writing or else Nuncupativewhat is an unjust or Void Will what is to be thought of those things which are found either to be blotted out or interlined in a Will how Heires or Executors are to be instituted or substituted in Wils and under what conditions they may be either instituted or substituted in the same what time an heire hath to deliberate after the Testators death before he prove the Will what is a Militarie Testament and what priviledges it hath how the inheritance may be either got or lost how Testaments are to be opened published and writ out what mens Testaments are to be opened and published of the punishment of such which a Will being extant seeke by Administration or some other like means 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 appertain unto Legacies of yeerely and monethly Legacies what time they be due in the beginning of the year or in the end which of them be pure and which conditionall of the use profit and benefit of any thing bequeathed of dwelling and workes of servants bequeathed of Dowry bequeathed and what profit the Legatorie hath thereby or choise or election bequeathed of wheat wine and oyle bequeathed and what is contained under every of them of ground furnished bequeathed and the instruments thereto belonging and what is to be understood by that bequest of store bequeathed in Latin called Penus what is comprised under that word of houshold-stuffe bequeathed of education and bringing up bequeathed of gold silver womens attire ornaments and such like bequeathed and what is to be understood by every of them how Legacies may be taken away of things that are doubtfull in a Will and how they are to be understood of those things that are left for punishment sake in a Will whether they be available 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 unworthy of them of conditions demonstrations and causes what force they have and how they prevaile in a Will Of the Law Folcidia what it is and how men thereby are restrained from bequeathing any more than three parts of their goods so that a fourth part thereof should still remain with the heire and if any man had received in Legacie more than he might by the law Folcidia that hee should put in band to restore that if any unknown debt after should appear so the same were true debt at what day a Legacie becomes due that is streight from the death of the Testator unlesse it be left to be paid upon a certain or uncertain day or under 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 doe it then the legatorie to be put in possession thereof untill the day or condition happen SECT 8. That the sixt part is spent in seven bookes and the subject thereof THe sixt part spreading it selfe over seven Bookes handleth Of Administration matters of possession of goods or Administration thereof not growing out of the Civile Law which onely makes heires giveth right of succession but out of the Pretorian law or law of conscience which in equity 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 Executor renounceth the Will but if the Will once appear then the administration forthwith ceaseth In cases where Administrations are to be granted the children of the deceased have liberty to take it within a year after the death of the deceased and if they be further off of kin then they have only a hundred dayes to take it in unlesse those which are to take it are Infants mad deaf dumbe or blind in which cases there is a longer time assigned The Pretor granted administration not only according to the tables of the Testament but many times even against the tables of the Testament as where a childe is not disinherited in his Fathers Will by plain termes but passed over with silence onely as not remembred or that the childe was not borne at the time of his death so not known whether any such child were living or to
be hoped for or not In which case if it doe after appear the Mother is put in possession of that which is the childes part If there appear no Will the Administration is committed in this order First the children of the deceased are admitted Secondly those that are next of kin in the Male line Thirdly those that are next of kin in the Female line which difference notwithstanding betweene male and Female at this day is taken away and they that are next of kin are equally admitted in either sex Lastly comes those which have 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 there is no provision for it in Law yeeldeth the party grieved an Interdict or Injunction to hinder that which was intended to his prejudice As where one buildeth an house contrary to the usuall and received forme of building to the injurie of his neighbour there lyeth an Injunction de novi operis nunciatione which being once served the offender is either to desist from his worke or to put in suerties hee shall pull it downe again if hee doe not within a very short time avow the lawfulnesse thereof Again there lyeth an Injunction where hurt is not yet done but feared to be done as where a house is ruinous or the eves or any outcast worke thereof hangeth dangerously over the way so that it is doubted it will fall hurt some that passe by the owner or Lord thereof is to put in suertie to the Magistrate that if any be hurt or miscarie thereby he shall answer for it If any cause the water of the river or rain-water to run an other course than before time it was wont to doe and that the neighbours are like to be prejudiced thereby the Law yeeldeth an Injunction either to stay the worke that is intended or to secure the neighbours for the hurt that is like to follow thereupon If Customers Collectors or Tolle-gatherers exact more subsidie or other like publick duties than by Law they ought or distrain any mans goods upon pretence thereof or stay in their hands such duties as they have received wherby the partie that hath paid it falleth into any forfeiture or that they repair not the publick high wayes in which respect subsidies tributes and other such like duties are given to Princes they are to be punished in the double value of that which they have received otherwise to be fined for their ill dealing in that behalfe In gifts which are purely given or under a day or condition and specially in those that are given in contemplation of death which are compared to Legacies themselves a right passeth without deliverance and giveth sufficient matter of challenge unto him to whom they are given The means or wayes 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 gaining by the sea or river by delivery or such like or be it by civill means as by getting the possession of any thing by good title and good faith so long as it will make a just usurpation or prescription by holding it as heire by holding it by a gift by taking it up as a thing forsaken by holding it by legacie dowrie or inheritance by coming to it by sentence definitive or interlocutory by confession of the adversary by cession of the partie by auctority of the Judge and the same have bin fraudulently alienated by the debtors there lieth an Injunction to put the partie injured into possession All Injunctions for the most part are prohibitorie serve either to get or to keepe or to recover possession and are called commonly by the first name of the writ as where one is denied the possession of inheritance belonging to him an Injunction is granted 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 siat ei qui in possessionem missui â—st That he that hath gotten the custodie of the Will exhibite it that no private building or such like be set up in a holy and sanctified place and if it be that it be pull'd downe again that no Nusance be done in publick places or high wayes other than such as by the Law are allowable that publick high wayes be repaired that nothing be done in any river or the bankes thereof whereby Ships or Barkes may not passe thereon that nothing be done in any common stream whereby the water should be forced to run otherwise this year than it did the last summer afore that it may be lawfull for every man to saile or rowe in any publick stream that the bankes of the river be repaired Of force and force armed where two are in possession of one thing and neither of them came by the same by force or by secret slight or by sufferance of an other there lyeth an Injunction for continuance of either of their possession called uti possidetis That a man may use such private way as he hath used the year past and repaire the same without interruption of an other That no man turne away the daily running water or the water which fals in Summer from an other mans house or ground to his hinderance That water-courses in rivers and other like places be maintained That such as have right to draw water out of any spring or well be not forbid the use thereof and that every one have free liberty to cleanse purge to repaire the same if there be any decay in it That no man be forbid to scoure purge or cleanse his privies sinkes or vaults That whatsoever is done by open force or secret subtilty be restored where it was before such force or subtilty was done unlesse the partie greeved release the same That he that holds any thing at an other mans will restore the same upon competent warning or knowledge given him thereof That a man may lop or cut the boughes of an other mans tree annoying his ground if after warning given thereof the owner thereof do not reforme it That it be lawfull for a man to gather such fruits of his as fall from his own tree into an other mans ground without any trepasse to the owner of the ground so that he gather the same within three dayes after they are so falne for otherwise the law presumes he makes no reckoning of them and fruits lying upon the ground do easily putrifie That a man may challenge his children out of an other mans hand that holdeth them from him That a Tenant after his lease is expired may remove and quietly carrie away such things from the farme as he brought thither so that the Rent be paid and those things which hee brought thither were not bound for the payment thereof Actions
the time to present the same to the Judge is at the discretion of the Judge from whom the time of prosecuting the same is a year or upon just cause two years in which time if the sute be not ended the cause is deserted and to be sent back unto the Judge from whom the Appeale was first made while the Appeale hangeth nothing is to bee innovated because by the Appeale the Judges hands are as it were bound but if the former Sentence were voyde by law as in sundry cases they are then there needeth no Appeale for such Sentences never passe into a case judged Appeales in criminall cases cannot be justified by a Proctor but it is otherwise in Civile Causes An Appeale in one cause doth not exempt the party appellant from his owne Judge in other causes If the appellant die during the time of the Appeale and leave no heire behinde him the Appeale ceaseth but if he leave an heire behinde him and the matter of the Appeale concernes none but himselfe he is not to be compelled to follow it for every one may renounce his owne sute but if it concerne the Exchequer or any other body then may hee be compelled to follow it The Exchequer is the Princes Treasurie and the patrimony of the common-wealth and hath many and singular prerogatives which private men have not Such as are taken captive by the enemy become their servants who have taken them unlesse either they escape home again themselves or be ransomed by their friends in both which cases they recover all right and priviledges they had in their owne common-wealth before By the Law all Subjects whatsoever are bound to serve the common-wealth in warre in so much that if any being prest withdraw himselfe or his childe 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 priviledges and rewards of Souldiers were many to encourage 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 priviledges of Souldiers the old Souldiers were the greatest Of Subjects some dwelt in Shires and lived after their owne Lawes and yet neverthelesse were made partakers of the honours 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 bear office some other were strangers 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 keepe the treasurie of the Countrey to provide victuall exact tribute govern the state there in maner as our Sherifes doe here His office was onely annuall lest by liberty and lust of government and continuance thereof it might grow into a tyrannie Such as are Subjects are to serve the common-wealth in such offices places and services as their abilitie is fit for and the necessitie of the common-wealth requires The services of the common-wealth were of three sorts Patrimoniall such as belong to every mans patrimony to performe which stood chiefly upon payment and charges which were to goe out of every mans inheritance towards the performance of such burthen as lay upon him by law custome or command 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 minde and labour of the body and expence of the purse and are imposed as well in consideration of the thing as the person which every subject is to undergoe unlesse by the Law or by the indulgence of the Prince they are excused as some are excused by reason of old age some by young age some for their dignity some for their calling some for their state of body some for that they serve in the necessarie services of the common-wealth at home or abroad as Embassadours do some for that they are in necessary places of services for Gods Religion as cathedrall Churches and other Churches are some for that they are of good and necessary places for Seminaries for the common-wealth for learning and such othe imployments as Colledges Societies and Schooles of learning and nurture are Legates and Embassadours had immunitie from all publick servivices not onely the time of their embassage but also two years 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 abroad so that no man might lay violent hands on them without breach of the Law of Nations Such as are Magistrates of Cities ought so to governe that no negligence may bee justly imputed unto them otherwise they are to answer it and that when their office is expired they give up a just account both of what they have received and what they have layd out and pay in the residue if there bee any Governours of Cities together with the consent of the Burgesses thereof may set downe such orders and decrees as are for the benefit and well ordering thereof which are to be observed of all those which are Inhabitants thereof and being once well and duely set downe are not to be reversed but to the good of the Citie or Commonalty New publick workes such as are good for the Common-weale every one may make without the leave of the Prince unlesse it be done for aemulation or cause of discord but for old works in which stands the security of the Common-wealth as Castles Towers Gates and Wals of Cities nothing is to be done or innovated in them without the Princes warrant neither is it lawfull for any man to grave his name in any publick Worke unlesse it be his at whose cost the worke is done Faires are authorized by Princes onely and are invented for trade of merchandize and uttering of wares which Country-men have cause to buy or sell and have their priviledges that no man in any Faire can be arrested for any private debt they were called Nundinae because that among the Romans they were anciently holden in one place or other upon every ninth day Hee that for ten years space intermitteth to use his Faire loseth the priviledge thereof If any make any promise to a Citie or Common-wealth to do any thing upon certain cause as that hee might be made Consul or that he would repair 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 up to knowledge or be
School-masters or Professours of Physick or be Midwives Notaries Auditors or Casters of accounts or Registers the Law alloweth not only a competent stipend in recompence of their skill paines but also affords them means how the same may be recovered if it be denied But as for Philosophers and Lawyers the Law hath appointed them no stipend not because they are not reverend Sciences and worthy reward or stipend but because either of them are most honourable professions whose worthinesse is not to be valued or dishonoured by money yet in these cases many things are honestly taken which are not honestly asked and the Judge may according to the quality of the cause and the skill of the Advocate the custome of the Court and the worth of the matter that is in hand appoint them a fee answerable to their place as also to such as are Interpreters betweene parties in matters of traffick when one understands not an others language CHAP. II. SECT 1. The second Volume of the Civile Law is the Code which is distributed into twelve Booke Why the Code is so called THe second Tome of the Law is the Code and stands in twelve Books whereof eight for the Titles follow in a manner the order of the Digest a few titles onely excepted which are added besides those of the Digest but as for the foure other which are the first the tenth the eleventh and the twelfth although the subject they treat of be named in the Digest yet the things which are there named are not handled in the Digest and therefore will I passe over those eight other lest happely I might seeme to doe one thing twice and therefore will I referre the Reader over to that which hath beene said of them before in the handling of the Digest for they are almost twinnes of one mother so that whosoever knowes the one shall with no great difficulty discerne the other and come to the other foure yet not mentioned there But yet before I lay open the matter thereof I will in a word or two shew why this Volume of the Law is called the Code who is the author thereof and out of whom it was collected what moved the author after so many learned titles set downe before of such things as are in the Digest deduced by such a number of worthy Lawyers as the Lawes of the Digest themselves doe by their inscriptions shew for every law carrieth with him in his forehead the name of his Author to make a new flourish of the same and what the knowledge of the Code doth conferre unto a Student or practiser of the Law more than the knowledge of the Digest doth The Code therefore is named of the word Caudex that is the trunke or timber of the tree from which the barke of the tree is pill'd or pull'd off of which men anciently used to make writing-tables artificially binding them up into the forme of a booke and using them for bookes before the use of paper or parchment was knowne insomuch as many of these tables being bound together they were called a Code or booke besides whereas the ancient Lawyers Why this Tome of the Law is called the Code before Justinians time used to write their pleas and answers in scroules of paper or parchment Justinian himselfe first put them in a booke and therefore termed them by the name of a Code The Code it selfe is compiled of the answers of 56. Emperours and their wise Councell whereof sundry were What the Code is learned and skilfull Lawyers as the storie of that time doth shew and the lawes themselues doe name some of them as that most excellent and famous man Papinian and some others that is from the dayes of Adrian the Emperour unto the age of Justinian himselfe The cause that moved Justinian hereto was that in the The reason which moved the Emperour to compile the Code Digest hee found not every case decided that fals out in common use of life for how is it possible when as every moment there fals out new matter for which former lawes made no provision and therefore thought good to supplie that by new Lawes which he found defective in the old so that the multiplication of those titles grew not that the Emperour had any meaning to fill the world with multitude of Lawes for hee had found the inconvenience thereof already and therefore had repealed and abolished so many thousand of old Lawes as he had but it came rather of that that the multitude of causes were so many that every day there fell out some unexpected thing that was never heard of before beside notwithstanding the carefulnesse of the Emperour himselfe and his great Lawyer Tribonian and others whom he used for the selecting and choosing out of the purest best and most agreeing Lawes among themselves out of that indigested heap of Lawes he then abolished yet they were not so quick sighted but in that great worke sundry antinomies or contrary Lawes past them which had need to be expounded and amended and the Authors to be recited Further sundry of ancient Lawes were so subtilely written that there was more wit than profit in them so that it was expedient the Emperour should explain the same putting all subtility aside give a right sence unto the Law Lastly whereas many things were delivered by them briefly and therefore obscurely the Law-giver in his Princely wisdome set out the same in other Lawes more plentifully and distinctly all which were the chiefest causes why the Emperour set out the booke of the Code The Code neither in style nor in methode cometh to The difference betweene the Digest and the Code the perfection of the Digest as that which for the style is a barbarous Thracian phrase Latinized such as never any mean Latinist spake whereas notwithstanding the style of the Digest is very grave and pure and such as doth not much differ from the cloquentest speech that ever the Romans used and for the methode it hath no particular disposition other than such as is borrowed of the Digest it selfe and otherwise is rude and unskilfull where it doth recede from the same yet doth it not lack his good use for to such as follow the practice of the law the knowledge of the Code is much more expedient than the knowledge of the Digest is for that the lawes of the Code doe determine matters in daily use of life which because they are a like in all ages for the same is evermore upon the stage the persons a little altered it cannot be but the learning thereof must be very profitable and expedient for the Common-wealth whereas notwithstanding the learning of the Digest stands rather in discussing of subtill questions of the Law and enumerations of the variety of opinions of ancient Lawyers thereupon which have more commendation of wit than benefit toward the common-wealth in them but hereof hitherto SECT 2. The Argument of the first Booke of
they were called Primicerii therefore hee that is chiefe of any dignity or office may be called Primicerius according to that of Phovorinus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the first of any * Austin calleth S. Stephen Primicerium Martyrum and the Archbishop of Dole in his Hist of Jerusalem called S. Peter Primicerium Aposto lorum order hence it is that we finde in Codin Primicerios Aulae Lectorum Barangorum c. and for this cause the Law heere calleth the chiefe Notarie Primicerium After him that was first Secretarie there was an other called Secundocerius the second Secretarie and after them other Clerks of the Councell who were not all in one degree but some were first some were second and so in order as their person place and time did require Over whom was the Master of the Rols who now is called Chancellour and such as are of the Princes privie Councell or Assessors of his privie consistorie wherein he heareth Embassages and debateth the greatest affaires of the State and other weightie matters The President or Tribune of the Schooles where young men were trayned up to feats of Armes The Martials or Presidents of Militarie affaires the Physicians of the Princes body Constantine in old time honoured with the title of Earles as he did the rest of his chiefe officers but now they are without the dignitie of that title The Earles of the Countries who governed the Provinces or Shires whereof they were Earles Professors of Law and other sciences twentie years together deserved by the Law to be made Earles The Porters of the Court and the Princes watch which watched nightly for the defence of his body the guard or protectors of the Princes body and their Captain among which were chiefe the Standerd-bearers as in whom the Prince reposed most trust and used them chiefly in all matters of danger Next unto the Chancellour or Master of the Rolls were the Clerks and others that served in the Rolls in which the decrees and rescripts of the Prince the Supplications of the subject and the orders thereupon set downe are recorded laid up and kept as the Rolls of Remembrances of Epistles Libels Ordinances Gifts given by the Prince and such like besides such as serve the Prince not in matters of learning or warre or the pen or other like places above-named but in actions of the common-wealth and in publick offices either of peace or warre and their Presidents or Governours among whom are Post masters to whom the care of the publick course doth appertein the Treasurer of the Chamber who hath the keeping of the privie purse and such things as come to the Prince by the way of gift the Master of the horse his Queries and riders the yeoman of the Styrrop and the Princes footmen the * They are called in the Title Castrensiani Cod. De Cast Minist lib. 12. And these were Pars Regiae familiae Servitiis Ministeriis Principis interioribus in aula castris devota ut Praegustatores Pincernae Vesitores Pastores c. Cujacius hic Wesenbec in Oâ—conom Juris pâ—g 225. Castellians or officers of the houshold which were part of the Princes family appointed for the inward services of the Prince in the Court as his Tasters Butlers Wayters Chamberers and such other and their Governours Harbingers which upon remove provide for the Princes lodgings all which had sundry priviledges and immunities for that they were all accounted as Souldiers as also the eleven †Schooles in the Code are Corpora sive ordines officialium hoc est eorum qui munere officio aliquo quod ad Principis Ministerium pertineret fungebantur Prat. Concerning these see Panciroll upon the Notitia Imperii The Authour whereof Marian a Scot if it be as Cujacius saith reckoneth no more then tenne Schooles but the Emperour maketh mention of eleven Cod. de Locat Cond l. fin Schooles for Henchmen wherein sundry youthes under masters appointed for that purpose were trained up some in learning some other in Militarie discipline that they might be made fit for the service of the Prince and common-wealth and had for their better education an annuall allowance of the Prince and from thence when they were sufficiently instructed or trayned up were sent out to such services as they were fit for Of such as were attendants about the Prince and were imployed in his service the chiefest of all were the Senators and therefore are called in the Law the Companions of the Prince and have all the priviledges that Souldiers have The second order was of them that were Knight-riders which either did or might serve in warre In the third ranke were such as were in dignity All may be compelled to serve in warre which have neither just excuse nor exemption nor have any leave of the Captain to be absent unlesse they be Merchant men or be indebted unto the common wealth or obnoxious to the Law for any crime they have committed Under the title of Militarie discipline is declared how men are to be trayned up to the knowledge of warre what oath is to be taken of such as are prest to be Souldiers how they are to be distributed into bands what use or benefit the common-wealth hath by them what is their office and how they are to be mustered or else translated from one degree to an other how they are to be judged if they offend what priviledges belong unto them what stipend or wages is due unto them as allowance of Corn the baking of the same into bisket which was a kind of bread twice baked for the better durance of it the carriage therof from place to place so often as they hapned to remove their livery or apparell the times of the delivery of the same or money in steed thereof lodging and provision of salted meat the longer to endure how long Souldiers may be absent from the campe and who is to give them leave for absence and what is the punishment of them that without just cause be longer absent from the Army than they have leave Of young souldiers and of their trayning up of old souldiers and of their priviledges Provision for keeping safe the Sea coast and ordinary high wayes of the Countrie that such as journey may passe free without hurt or dammage of runagates out of the Army and such as conceale them and of either of their punishments of the sonnes of such officers as have died in the warre and of their preferment if any be fit for it that they succeed in their fathers office or roome Of the Sergeant Major the Clarke of the band and other such officers of the Campe and of their office reward and punishment Of places disposed of for publick poasts and carriages in high beaten wayes and other by-wayes on necessity and how the same and the Cattle are to be used that is that they be not driven forward with staves or clubs but with whips onely
matter of the ninth Collation THe ninth and last Collation conteineth 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 Descendent then the Ascendent be preferred before the Collateral unles they be brethren or sisters of the whole blood who are to succeed together with the Ascendent but in Ascendents those are first called which are in the next degree to the deceased then after those which are in a more remote degree that in Collaterals all be equally admitted which are in the same degree 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 unlesse it be to the Princes house or to or with an other like Religious place and that in equall goodnesse and quantitie or that it be for the redemption of Prisoners and that they be not let out to any private man more than for 30. years or 3. lives unlesse either the houses be so ruinated that they cannot be repaired without great charges of the Church or other religious houses or that it be overcharged with any debt or duties belonging to the Exchequer and thereby there commeth small revenue to the Church or Religious place there-out in every of which cases it is lawfull to let out the same for ever reserving a yearly competent rent and other acknowledgement of other soveraignty therein That the holy vessels of the Church be not sold away unlesse it be for the ransoming of Prisoners or that the Church be in debt in which case if they have more holy vessels than are necessary for the service of the Church they may sell those which are superfluous to any other Church that needeth them or otherwise dispose of them at their pleasure for the benefit of the Church or other holy place whose they are Where Usurie in processe of time doth double the principall there Usurie for the time to come doth cease and those particular payments which afterwards doe follow are reckoned in the principall What kinde of men are to be chosen Bishops such as are sound in faith of honest life and conversation and are learned that such as chuse them sweare before the choyce they shall neither chuse any for any reward promise friendship or any other sinister cause whatsoever but for his worthinesse and good parts onely That none be ordeined by Symonie and if there be that both the giver taker and mediator thereof be punished according to the Ecclesiasticall Lawes and they all made unworthy to hold or enjoy any Ecclesiasticall living hereafter That if any at the time of any Bishops election object any thing against him that is to be elected the election be staid till proofe be made of that which is objected by the adversarie against the partie elected so that he prove the same within three Moneths and if any proceeding be to the consecration of the same Bishop in the meane time it is void That the Bishop after he is ordeined may with out any danger of Law give or consecrate his goods to the use of the Church where he is made Bishop and that he may give such fees as are due to the electors by law or custome That Clerks be not compelled to undergoe personall functions and services of the common-wealth and that they busie not themselves in secular affaires and so thereby be drawn from their spirituall function That Bishops for no matter or cause be drawne before a temporall Judge without the Kings speciall commandement and if any Judge presume to call any without such speciall warrant the same is to lose his office and to be banished therefore That no Bishop absent himselfe from his Dioces without urgent occasion or that he be sent for by the Prince and if any doe absent himselfe above one yeare that he shall lack the profit of his Bishoprick and be deposed from the same if he returne not againe within a competent time appointed for the same What maner of men are to be made Clerks such as are learned and are of good Religion of honest life and conversation and are free from suspition of incontinencie that no Minister be lesse than 35. yeares of age and that no Deacon or Subdeacon be under 25. that all Clerks and Ministers be ordeined freely If any build a Church and indow the same that he may present a Clerk thereto so that he be worthy to be admitted thereto but if he present an unworthy man then it apperteineth to the Bishop to place a worthy man therein If any Clerke be convicted to have sworne falsely hee is to be deprived of his office and further to be punished at the discretion of the Bishop That Clerks be convented before their owne Bishops and if the parties litigant stand to the Bishops order the Civile Judge shall put it in execution but if they agree not upon the judgement then the Civile Judge is to examine it and either to confirme or infirme the Bishops order and if he confirme it then the order to stand and if not then the party grieved to appeale If the cause be criminall and the Bishop finde the party guiltie then the Bishop is to degrade him and after to give him over to the secular power the like course is to be held if the cause be first examined before the temporall Judge and the partie found guiltie for then hee shall be sent to the Bishop to be deprived and after againe shall be delivered to the secular powers to be punished That Bishops be convented before their Metropolitans That such as in Service time do abuse or injure the Bishop Si vero etiam Litaniam concusserit capitale periculum sustinebit De Sanctissim Episcop Deo § Si quis cum sacra minist or any Cleark in the Church being at divine service be whipt and sent into banishment But if they trouble thereby the divine Service it selfe they are to dye the death for the same That Lay men are not to say or celebrate divine Service 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 neither promised or will giue ought to the Judge and that usuall fees be taken by the Advocates Counsellours Procters or Attournies and if any man take more than his ordinary fees 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 decreed in them That the Bishop of Rome hath the first place of sitting in all assemblies and then the Bishop of Constantinople That all Clergy mens possessions be discharged from all ordinary and extraordinary payments saving from the repairing of Bridges and High wayes where the said possessions doe
Levell and Line The Canon Law consisteth partly of certaine Rules taken out of the holy Scripture partly of the Writings of the ancient Fathers of the Church partly of the ordinances of generall provinciall Councels partly of the Decrees of Popes of former ages Of the Canon Law there are two principall parts the Decrees the Decretals The Decrees are Ecclesiasticall constitutions made by the Pope and Cardinals at no mans suit are either Rules taken out of the Scripture or Sentences out What is the antiquity of Decrees and who were the Authors that compiled them of the ancient Fathers or Decrees of Councels The Decrees were first gathered together by Ivo B. of Carnat who lived in the time of Vrban the 2. about the yeare of our Lord God 1114. but afterward polished perfected by Gratian a Monk of the Order of S. Bennet in the yeare * Trithem in his second Booke De viris illust saith that Gratian wrote this Worke at Bononia in the Monasterie of S. Felix Anno 1127. Others say it was done in the yeare 1151. Bellarmine to reconcile the difference saith that Gratian might begin the work according to the first account and finish it according to the second 1149. and allowed by Eugenius the Pope whose Confessor hee was to bee read in Schooles and to be alledged for Law Of all the severall Volumes of the Canon Law the Decrees are the ancientest as having their beginning from the time of Constantine the great the first Christian Emperour of Rome who first gave leave to the Christians freely to assemble themselves together and to make wholsome lawes for the well government of the Church The Decrees are divided into three parts wherof the first teacheth of the origen and beginning of the Canon Law and describeth and setteth out the rights dignities degrees of Ecclesiasticall persons and the manner of their elections ordinations and offices and standeth of one hundred and one distinctions The second part setteth out the causes questions and answers of this Law which are in number 36. and are full of great varietie wisdome and delight The third and last part conteineth matter of consecration of all sacred things as of Churches bread and wine in the Sacrament what dayes and Feasts the Primitive Church used for the receiving thereof of the ministring of the Sacraments in Baptisme and the use of imposition of hands all which is set out under five distinctions SECT 2. What the Decretals are and how many parts they comprehend THe Decretals are Canonicall Epistles written either by the Pope alone or by the Pope and Cardinals at the instance or suit of some one or more for the ordering and determining of some matter in controversie and have the authoritie of a law in themselves Of the Decretals there be three Volumes according to the number of the Authors which did devise and publish them The first Volume of the Decretals was gathered together by Raymundus Barcinius Chaplain to Gregory the ninth at his the said Gregories commandement about the yeare 1231. and published by him to be read in Schooles and used for Law in all Ecclesiasticall Courts The second is the worke of Boniface the eight methoded by him about the yeare 1298. by which as hee added somthing to the ordinance of his Predecessours so he tooke away many things that were superfluous and contrarie to themselves and reteined the rest The third Volume of the Decretals are called the Clementines because they were made by Pope Clement the fifth of that name published by him in the Councell of Vienna about the yeare of grace 1308. To these may be added the Extravagants of John the xxij some other Bishops of Rome whose authors are not known and are as Novell constitutious unto the rest SECT 3. What is contained in the first Booke of the Decretals EVery of the former Volumes of the Decretals are divided into five Bookes and containe in a manner one and the same titles whereof the first in every of them is the title of the blessed Trinitie and of the Catholick faith wherein is set downe by every of them a particular beliefe divers in words but all one in substance with the ancient Symbols or beliefe of the old Orthodoxe or Catholick Church Secondly there commeth in place the treatie of Rescripts Constitutious Customes the authority of them when they are to be taken for Law after followeth the means wherby the greater Governours of the Church as namely Archbishops Bishops such like come unto their roome which was in two sorts according as the parties place or degree was whē he was called unto the roome as if he were under the degree of of a Bishop was called to be a Bishop or being a Bishop was called to be an Archbishop or to be the Pope himselfe hee was thereto to be elected by the Deane and Chapter of the Church where hee was to be Bishop or by the Colledge of the Cardinals in the Popedome but if hee were already a Bishop or an Archbishop were to be preferred unto any other Bishoprick or Archbishoprick then was he to be required by the Church he was desired unto and not elected which in the Law was called Postulation after Postulation followed translation by the superiour to the See to which hee was postulated or required after Election followed Confirmation Consecration of him that was elected which both were to be done in a time limited by the Canōs otherwise the party elected lost his right therin Bishops and other beneficed men sundry times upon sundry occasions resigne their benefices and therefore is set downe what a renunciation or resignation is who is to renounce and into whose hands and upon what causes a man may renounce his benefice or Bishoprick and because under-Ministers are oftentimes negligent in their Cure that the people in the meane time may not be defrauded of Divine Service the Sacraments the food of the word of God it is provided that the Bishop shall supply the negligence of such Ministers as are underneath him in his Jurisdiction besides because holy orders are not to be given but by imposition of hands with prayer and fasting * The old Romans instituted three yearely Solemnities in honour of their Gods for the Fruites of the Earth These also the Romish Church observed having first moderated their superstition and directed them to a more sacred end To the three one of their Popes as they say added the fourth with a respect had to those of the Jewes in Zech. 8. 19 and so they were called Iejunia quaiuor temporum Their institution at the first had many other causes for which see the Sermons of Leo and Durants Rationale but in after times at these Solemnities especiall regard was had to the Ordination of Priests and Deacons which had beene formerly performed onely once a yeare in the Moneth of December as Amalarim hath observed It seemeth therefore
rest shall cease Neither if the Master of the ship himselfe by violence of the tempest shall lose a Maste or a Saile shall hee be more allowed therfore than a Carpenter to whom a house is let out to be built shall be allowed for his axe or sawe if hee breake it Beside in matters of wrack there is as it were a contract betweene them which have lost their goods by shipwracke and them upon whose Lands the said goods are-driven that the same be restored to them or their heires if they come in due time to claime the same and therefore it is precisely forbid by the Law that no man shall meddle with such L. ne quid ff de incendio ruina naufragio goods as are wrecked and such as are proved to have stolne any thing thereout are holden for robbers for that such goods being cast on land recovered out of the sea remain still his who was the owner thereof and descend upon his heire neither excheat unto the King neither to any other whom the King hath priviledged in this behalfe And therfore L. 1. lib. 11. C. de naufragiis the Emperour Constantine the great saith worthily in this case If any ship at any time by shipwracke be driven unto the shoare or touch at any land let the owners have it and let not my Exchequer meddle with it for what right hath my Exchequer in another mans calamitie so that it should hunt after gaine in such a wofull case as this is And yet if no kindred appeare within a yeare and a day or appearing prove not the goods shipwracked to be theirs the goods come to the Exchequer even by that Law so much that law condemneth carelesnesse which is written Vigilantibus non dormientibus And with this agree the Lawes of this Land as taken out of these imperiall lawes whereby it is ordered that such goods as are saved out of the wracke shal be kept by the view of the Sherife or some other chiefe Officer and delivered to the hands of such as are of the place where the goods were found so that if any sue for them prove them to be his or to have perished in his keeping they shall be restored unto him without delay otherwise they escheat unto the King or to him to whom the King hath granted the same And if any convey away any part of the same goods contrary to the law and be attainted thereof he shall be awarded to prison and make fine at the Kings will and yeeld dammages unto the party grieved and a wrecke by the lawes of this land is where all living things within the ship doe perish * Mes si ud homme ou un chien â—u câ—tte escape â—iue i 〈…〉 t que le partiea que les biens sont veigu deins lan jour procue les biens destreses il avera eux arere per provision del Statute de Westminst I. cap. 4. fait en les â—ours del Râ—y E F. 1 but if a man a dog or a cat doe scape out of the ship alive it is otherwise For matters of contract they are either in the petitorie or in the Possessorie The Petitorie is where the property of any thing is challenged this of all other suites Institut de rerum dimissione § singulorum ff de acquirendo rerum dominio l. adeo toto 〈…〉 ul C. de qua driennij prescript l. bene is the hardest because the proofe thereof is very difficill for albeit the propertie of things may bee got by many meanes as well by the law Civill as by the law of Nations yet it is not a thing so easie to be proved for that there must concur many things to the proofe of a property otherwise you shall faile in your suit as in a case of bargaine and saile that there was such a contract between 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 C de 〈…〉 uirend possess l. 1. ext c. 1. de consuetudâ—n that delivery was made thereof otherwise the property passeth not but onely in some few cases in which neither possession nor delivery is required Lastly that he which sold it was rightfull owner of it otherwise can he not passe over a thing he had no right unto The Lordship or property of things is bipartite for either it is direct or full such as men have when they have not only the thing it selfe whereof they are Lords or Proprietaries but also the use and commodity thereof or else it is profitable as is the hold of Tenants and Farmers who have the use gaine and possession of the thing but the Lord the property and rent in acknowledgement of his right and Soveraignty The Possessorie is that right whereby the use or possession of a thing is claimed of which there be three sorts for it is either in getting of the possession of that a man hath not or in keeping of the possession of that a man hath or in recovering and regaining of the possession of that which is lost The proceeding in all these Civile matters is by Libell concluding to the action the partie agent giving caution to prosecute the sute and to pay what shall be judged against him if he faile in the sute the Defendant on the contrarie part securing his adversarie by sufficient suertie or other caution as shall seeme meete for the present to the Judge that he will appeare in Judgement and will pay that which shall be adjudged 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 Judgement is which is nothing else but a course to secure the adversarie of that which is in debate before the Judge that on what side soever the cause shall have an end the clients may be sure to get that which by law shall be adjudged unto them SECT 3. What are the Criminall marine matters whereof the Law Civile holdeth plea heere with us and what proceeding they have ANd so much of those Civile Marine matters whereof the Civile Law heerè in England usually holdeth plea. 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 Piracie detested of God and man the actors werein Tully calleth Enemies to all and to Cicer. 3 lib off whom neither faith nor oath is to be kept Piracie is called of the Greeke word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is * In an Attick sense for they said 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and from this sense 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pirates as the Scholiast of Sophoâ—les hath noted upon Ajax Deceptio in Latin and in English Deceipt for that many times they pretend friendship when they intend nothing
else but robberie and bloud-shed or they are so termed of the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is of their wandring up and downe and resting in no place but coasting hither and thither to doe mischiefe A Pirate is a Sea-thiefe who for to enrich himselfe either by subtilty or open force setteth upon Merchants and others trading by sea ever spoyling them of their loading if they get the upper hand and somtimes bereaving them of their life and sinking of their ships The proceeding of these Criminall matters is by accusation and information and after by triall of twelve men upon the evidence according to the lawes of this land and the lawes of the ancient Feudes of Lombardie where the like triall is and from whence it seemeth this of ours was first derived But here must wee note that matters of reprisals are no piracies although many times there fals out no lesse outrage in them for spoyling and slaying of men than doth in the other for that Reprisals are done by the Princes commission granted to the subject for redresse of some injurie done to himselfe or his subject by some other forreine Prince or subject and amends hath beene required by law and cannot be had whereupon licence is given to the subiect to releeve 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 afford Justice where it is lawfully demanded Bartol l. nullus num 2. C. de Judeis Coelicolis SECT 4. That the things which extraordinarily belong unto the Cognisance of the Civile Law are of three sorts and concerning the first which respecteth treaties betweene Prince and Prince ANd thus much of the causes which ordinarily doe belong unto the Cognisance of the Civile Law within this land Now it followeth that I speake somewhat of those things wherein the Civile Law dealeth incidently and by authoritie of the Prince is not the ordinarie object of the Civile law howsoever otherwise they cannot be handsomly dealt in but by such as have the skill of the Civile Law Whereof there be three sorts the first is matters of forrein treatie betweene one Prince and another the second is the ordering of martiall causes whether they be Civile or Criminall in an Army the last is the Judgements of Ensignes and Armes and the decisions for challenges of rights of Honour and precedencie where any of them is in controversie For the first whereas all other Nations in compasse round about us be governed by the Civile Law and treaties are to be decided by Law both for those things which are in question and to be concluded by Law and for those things which are determined by consultation and agreed upon who is thereto to be chosen rather than a Civilian to whom their law is knowne as well as to themselves and if perhaps he understand not their language yet hee understandeth that language wherein the lawes themselves are written and is the fittest tongue for treatises betweene Princes and Princes because it is a common tongue to the learned of all the West part of the world and thereby every Prince shall reteine his owne Majestie in parlying as it were in his owne language and not be forced to speake in an other Princes tongue which no doubt is a great disadvantage to him that shall treat for that every Nation hath some proper Idiom not so well discerned by the booke-speaker as perceived by the Natives of the countrey where it is spoken and wherein a stranger may easily be deceived How much forreine Princes doe esteeme of the skill of a Civilian in these matters it may be understood thereby that they never 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 Civilians And if the care of these things be so great with them surely the estimation of the same ought not to be light with us for by what lawes their leagues and negotiations use to bee directed by the same must ours bee ordered so that for that point one kinde of learning must serve for both for that otherwise one Nation will not be convinced by the other what their capitulations are Surely such as over and besides their owne experience have the knowledge of the Civill Law have herein a double helpe above another man that wanteth the same First their owne understanding which for the most part is of like proportion as other folks is Then the skill of the Lawes themselves which are a quintessence of wit above other humane learning and were either wholly composed of the mature and deliberate resolutions of such Emperours as then swayed the whole world or were the doomes judgments of such wise men as then managed the whole world and the affaires thereof under them But who when hee seeth a sword in it's scaberd knoweth whether it will cut or not although the forme thereof be a presumption that it will but doe but draw it out of the scaberd and try the blade thereof and then shall you see the sharpenesse of it I make no application hereof for that my meaning by my words may be well enough knowne But in these matters the wisdome of the State knowes best what is to be done and I onely remember what other Nations doe leaving the rest to their gravest considerations who by precedents of former times and men of experience furnished with exoticke tongues have carried this part of pollicie very well and safely hitherto but now to the or 〈…〉 g of Martiall causes SECT 5. What are Martiall causes which are the second extraordinary matter belonging to the Cognisance of the Civill Law with us MArtiall causes are either Civill or Criminall whereof both are determinable by the Civill law A Civill Martiall cause is where either the Captaine or the Souldier requireth some thing that is due and withholden from him as his stipend his apparell which among the Romans was due twice a yeare that is their Sommer apparell from the first day of April to the first of September and their Winter from thence to Aprill his diet which among the Romans was two dayes hard bisket the third softer bread one day wine an other day vineger one day bacon and two dayes mutton his priviledges either in cases of preferment as to be removed from one degree to another or in cases of immunitie as to be freed from all servile functions If. de re militari Câ—eod tit l. 12. ff de privilegio veteranorum de castrensi peculio C. eodemtit l. 12. C. de erogatione militaris annonae C. de vest militari 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 Souldiers faults are either proper to themselves or
there is any right use within the Church Some other are out of use as well among the Civile 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 Giving by deed of gift of Detecting of Collusion and Cosenage of Murder of Theft and receiving of Theeves and such like SECT 2. That the Titles lastly mentioned did anciently belong unto the Court Spirituall and the reasons which moved the Author so to beleeve The first Reason ANd yet I doubt not but even these matters as well Civile as Criminall or most of them were anciently in practise and allowed in Bishops Courts in this Land among Clerks to the which I am induced by three Reasons First that I finde not onely the forrein Authours of the Decretals but also the domesticall Authours of the Legatines being all most excellent wise men as the Stories of their severall ages do report to have enacted these severall constitutions and to have inserted them not onely in the body of the Canon Law but also in the body of the Ecclesiasticall Lawes of this Land and that some wise men sundry yeares after their ages doe write and comment upon the same as things expedient and profitable for the use of the Church and the government of the Clergie in those dayes neither of which I doe presume they would have done if in those ages there had not beene good use and free practice of them SECT 3. The second Reason SEcondly that I finde in the Code of Justinian by sundry Lawes some of his owne making some others of other Emperours before his time even from the daies of Constantine the great Bishops in their Episcopall audience had the practice of these matters as well Criminall as Civile and to that end had they their Officials or Chancellours whom the Law calleth Ecclesiecdici or Episcoporum Ecditi that is Church-Lawyers or Bishops-Lawyers men trained up in the Civile and Canon Law of those ages to direct them in matters of Judgement as well in Ecclesiasticall Criminalâ— matters as Ecclesiasticall Civile matters And that these which now are Bishops Chancellours are the very selfe same persons in Office that anciently exercised Ecclesiasticall Jurisdiction under Bishops and were called Ecclesiecdici it may appeare by that which Papias an old ancient Historiographer cited by Gothofred in his Annotations upon the foresaid Law Omnem in the Code title de Episcopis and Clericis and upon the § Praeterea writeth of them who saith thus That Ecclesiecdici or Ecdici were those that were aiders assisters to the Bishops in their Jurisdictions not astrict or bound to one place but every where through the whole Diocesse supplying the absence of the Bishop which is the very right description of the Bishops Chancellours that now are who for that they carry the Bishops authority with them every where for matters of Jurisdiction and that the B. and they make but one Consistory are called the Bishops Vicars generall both in respect their authority stretcheth it selfe throughout the whole Diocesse and also to distinguish them from the Commissaries of Bishops whose authority is onely in some certaine place of the Diocesse and some certaine causes of the Jurisdiction limited unto them by the Bishops and therefore are called by the Law Judices or Officiales foranei as if you would say Officiales astricti cuidam foro dioeceseos tantùm Gloss in Clement 2. de Rescrip So that it is a very meere conceit that a certaine Gentleman very learned and eloquent of late hath written That Chancellours are men but of late upstart in the world and that the sloth of Bishops hath brought in Chancellours wheras in very deed Chancellours are equall or neer equall in time to Bishops themselves as both the Law it selfe and Baldus l. aliquando ff de officio Proconsulis Couar li. 3. variarum resolut c. 10. num 4. Shrozius lib. 1. de vicario Epis q. 46. num 2. 4. 12. 13. Stories doe shew yea Chancellours are so necessary Officers to Bishops that every Bishop must of necessitie have a Chancellour and if any Bishop would seeme to be so compleat within himselfe as that he needed not a Chancellour yet may the Archbishop of the Province wherin he is compell him to take a Chancellour or if he refuse so to doe put a Chancellour on him for that the Law doth presume it is a matter of more weight than one man is able to sustain to governe a whole Diocesse by himselfe alone and therefore howsoever the nomination of the Chancellour bee in the Bishop yet his authoritie comes from the Law and therefore Hostiensis in sumusa de officio Vicarii numero 2. in fine nominationem ab Episc potestatem verò à â—ure recipiunt he is no lesse accounted an Ordinarie by the Law than the Bishop is But truth it is not the sloth of the Bishops but the multitude and varietie of Ecclesiasticall causes brought them in which could not bee defined by like former precedents but needed every one almost a new decision And the reasons why Princes in the beginning granted to Clergie men these causes their Consistories for from Princes were derived in the beginning all these authorities as also the Religion it self is setled protected in kingdoms by Princes before there can be had a free passage thereof were First that the Clergy-men therby might not be drawn from their prayer and exercise of divine service to follow matters of suits abroad 2ly that they were like to have a more speedy better dispatch more indifferency before a Judge of their owne learning than before a Judge of an other profession for this is true and ever hath beene and I feare ever will be unto the end that is said in the Glosse and is in common saw Laici oppidò semper infesti sunt Clericis Lastly That Clerks suits and quarrels should not be divulged and spread abroad among the Lay people and that many times to the great discredit of the whole profession specially in criminall matters wherein Princes anciently so much tendered the Clergie that if any man among them had committed any thing worthy death or open shame he was not first executed or put to his publick disgrace before he was degraded by the Bishop and his Clergie and so was executed and put to shame not as a Clerk but as a Lay malefactor which regard towards Ecclesiasticall men it were well it were still reteined both because the consideration thereof is reverent and worthy the dignity of the Ministerie whose office is most honourable and also for that it is more ancient than any Papisticall immunitie is SECT 4. The third and last Reason THe third reason that moves moe that I should beleeue that these Titles sometimes were here in exercise among
somtimes at Rome in Italy somtimes at Avignion in France sometimes in other places as by the date of the Bulls and other processe of that age may be seene which severall removes of his gave occasion to the Parliament of inserting the word Elsewhere in the body of those Statutes that thereby the Statutes providing against Processe dated at Rome they might not bee eluded by like Processe dated at Avignion or any other place of the Popes aboade and so the penaltie thereof towardes the offender might become voyde and bee frustrated Neither did the Lawes of this Land at any time whiles the Popes authoritie was in his greatest pride within this Realm ever impute a Praemunire to any Spirituall Subject dealing in any Temporall matter by any ordinary power within the Land but restrained them by Prohibition onely as it is plaine by the Kings Prohibition wherein are the greatest matters that ever the Clergie attempted by ordinary and domesticall authority and yet are refuted onely by Prohibition But when as certaine busie-headed fellowes were not content to presse upon the Kings Regall jurisdiction at home but would seeke for meanes for preferment for forrain authority to controule the Judgments given in the Kings Courts by processe from the Pope then were Praemunires decreed both to punish those audacious enterprises of those factious Subjects and also to check the Popes insolencie that hee should not venter hereafter to enterprise such designments against the King and his people But now since the feare thereof is past by reason all entercourse is taken away betweene the Kings good Subjects and the Court of Rome it is not to bee thought the meaning of good and mercifull Princes of this Land is that the cause of these Statutes being taken away the effect thereof should remain and that good and dutifull Subjects stepping happily awry in the exercise of some part of their jurisdiction but yet without prejudice of the Prince or his Regall power shall bee punished with like rigour of Law as those which were molesters greevers and disquieters of the whole estate But yet notwithstanding the edge of those Praemunires which were then framed remaine sharpe and unblunted still against Priests Jesuites and other like Runnagates which being not content with their owne naturall Princes government seeke to bring in againe that and like forraine authoritie which those Statutes made provision against but these things I leave to the reverend Judges of the Land others that are skilfull in that profession onely wishing that some which have most insight into these matters would adde some light unto them that men might not stumble at them and fall into the danger of them unawares but now to Prohibitions SECT 2. The impeachment thereof by Prohibition and what it is A Prohibition is a commandement sent out of some of the Kings higher Courts of Records where Prohibitions have beene used to be granted in the Kings name sealed with the seale of that Court and subscribed with the Teste of the chiefe Judge or Justice of the Court from whence the said Prohibition doth come at the suggestion of the Plaintife pretending himselfe to be grieved by some Ecclesiasticall or marine Judge in not admittance of some matter or doing some other thing against his right in his or their judiciall proceedings commanding the said Ecclesiasticall or marine Judge to proceed no further in that cause and if they have sent out any censure Ecclesiasticall or Marine against the Plaintife they recall it and loose him from the same under paine of the Kings high indignation upon pretence that the same cause doth not belong to the Ecclesiasticall or Marine Judge but is of the temporall cognisance and doth appertaine to the Crowne and dignitie Of 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 What are Prohibitions of Law 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 mentioned by the second of Edward the sixth where Judges Ecclesiasticall are forbid to hold plea of any matter contrary to the effect intent or meaning of the Statute of W. 2. Capite 3. The Statute of Articuli Cleri Circumspectè agatis Sylva Caedua the treaties De Regia Prohibitione the Statute Anno 1. Edwardi 3. Capite 10. or ought else wherein the Kings Court ought to have Jurisdiction Prohibitions of fact are such which have no precise word or letter of Law or Statute for them as have the other but What are Prohibitions of fact are raised up by argument out of the wit of the Devisor These for the most part are meere quirks and subtilties of law and therefore ought to have no more favour in any wise honourable or well ordered Consistorie than the equity of the cause it selfe doth deserve for such maner of shifts for the most part breed nought else but matter of vexation and have 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 provided that no Prohibition shall goe out but where the King hath the cognisance and of right ought to have and also by the fore-named Statute of Edward the sixth which forbids that any Prohibition shall be granted out but upon sight of the libell and other warie circumstances in the said Statute expressed by which it is to be intended the meaning of the Law-givers was not that every idle suggestion of every Attourney should breed a Prohibition but such onely should bee granted as the Judge in his wisdome should thinke worthy of that favour and if right and equitie did deserve it although as I must needs confesse the Statute is defective 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 upon Ecclesiasticall causes but I feare mee as emulation betweene the two Lawes in the beginning brought in these multitudes of Prohibitions either against or beside law so the gaine they bring unto the Temporall Courts maintaineth them which also makes the Judges they cesse not costs and damages in cases of consultation although the Statute precisely requires their assent and assignement therein because they would not deterre other men from suing out of Prohibitions and pursuing of the same The Prohibitions of the law as have beene before shewed are neither many nor much repined at because they containe a necessary distinction betweene Jurisdiction and Jurisdiction and imply the Kings right and Subjects benefit but the
Prohibitions of fact or of men are both infinite and odious for that there is well nigh no matter either Civile or Ecclesiasticall be it never so cleere or absolute but they clog and incumber it with some Prohibition and the matter they containe is for the most part absurd and frivolous as shall first appeare in marine causes and after in Ecclesiasticall matters SECT 3. Conoerning the common Lawyers action of Trover and what is meant in the Law by a Fiction to shew how the Civile Jurisdiction is impeached in matters of Admiraltie FOr Marine causes it is well knowne that all such bargaines and contracts or as it were contracts as are made by any persons either in any forraine countrey or any haven or creeke of the Sea or any shore thereof as farre as the greatest winter wave doth runne out or upon any great river to the first bridge next to the Sea for any merchandize ship tackle or other negotiation belonging to the Sea or to any merchandize brought from beyond the Sea is and ought to be of the admirall cognisance and so evermore hath beene since the Court of the Admiraltie was first erected and yet the common Lawyers to defeate the Civile Law of the triall thereof have devised sundry actions and among the rest an action of Trover whereby they faine that a ship arrived in Cheapfide or some other like place within the Citie and there the Plaintife and Defendant meeting together bargained upon some merchandize or other like sea-faring matter by which fiction they pretend the bargaine now is to be tryed in the Common Law and not by the Civile Law as being done in the body of a Countie and not upon the maine Sea or any other place subject to the Admirall Jurisdiction But that this fiction or any other like qualitied to this should have any such force as to worke any effect in Law I will shew first by the definition of a fiction then by those things that are necessarily attendant thereon A fiction therfore is defined by Bartol whom also the rest L◠si is qui pro emptore §. 3. ff de usucapionib ibi Bartol of the Doctors doe follow to be an assumption of the Law upon an untruth for a truth in a certaine thing possible to be done and yet not done upon which fiction the Doctors hold there waite two things the one is Equitie the other Possibility For First unlesse there be cause why that which is not should be fained to be and that which is should bee accounted not to be and that which is done in one sort or at one time or in one place should be imagined to be done in an other sort at an other time and in an other place there is no reason a fiction should be admitted for the Law alloweth no man to come to extraordinary remedies but where ordinarie remedies faile and therefore if that which is in controversie may bee obtained by any other meanes than by a fiction a fiction is not to be afforded but if ordinary meanes cannot be had then fictions may be entertained L. in causa ff de minorib to supply the defect of the ordinary meanes that thereby although the truth be otherwise yet the effect of the Law may be all one So then the Law faineth an infant not yet borne to bee L. qui in utero penult de statu hominis ff L. 1. §. fi filius ff de suis et legit l. 2 l. 3. l. 4. C. eod l. Gallus 29. §. benè et §. videndum ff de liberis et posthumis § cùm filius Instit de haered an ante nato L. veris est §. ult ff pro socio L. actione §. publicatione ff eod L. absentem ff de verborum significat L lege Cornel. ff de testamento borne for his benefit for that happely without that fiction the poore infant should be remedilesse of his Filiall Portion Legacie or other right in conscience due unto him so Nephewes and Neeces succeed together with their Uncles and Aunts in their Grandfathers and Grandmothers goods for such portion as should have come to their parents if they had lived for that the Law presumeth them to represent the person of their parents so he that is dead is fained to bee alive to many constructions in Law specially if many of his equals in age be alive at the time that he is fained to bee alive so he that is alive and is in captivity for the upholding of his Will which he made in liberty is fained to bee dead the houre before hee became captive so he that is obstinate and will not appeare in Judgement being lawfully called thereto is fained to bee present that neither himself should take benefit out of his obstinacie neither his adversary hurt by his absence and injurie Infinite more examples might be brought of this sort but it would be too long to run through them all and this shall suffice to have shewed that the Law approveth fictions but where there is equitie for it and the Law it selfe otherwise cannot have L Gallus § fi ejus ff de liberis posthumis l. si pater § si cum ff de adopt Horat. de Arte poetica her effect And as the Law cannot proceed to a fiction without equity so neither can it faine any thing that is impossible for Art evermore followeth Nature and therefore if a man would faine disproportionable things such as the Painter did in Horace who made Boares wallow in the waves of the Sea and Dolphins wander in the woods these fictions in no sence can be admitted for that they are such as neither Nature nor Reason can brooke In like sort if a man would faine one to live who were dead two hundred yeares since Bartol l fi is qui pro emptore num 21. 22. 23. sequen tib so that it were not possible that hee or any of his equals should live at that age this would not hold in Law for that it is above the age that the Law doth presume any man may live by Nature although the Law doth presume such as dye in warre for defence of their countrey for the better encouragement of those that are alive to venture themselves in like service for the common-wealth to live for ever because their fame doth flourish for ever and upon like reason the Law will not suffer any person to adopt an other for his childe who is either elder or equall in age unto himselfe or is not so farre under his yeares as by course of Nature hee might be his naturall childe indeed so much the Law detesteth impossibilities that it will not suffer a man to faine that which in common Sence and Nature might not be true indeed Now if these things be true as in all reason and shew by former precedents they appeare to be true I would gladly see how actions of Trover whereby the Common Lawyers
translate unto themselves matters of Marine triall if they be squared to these Rules of Fictions can bee maintained for first to speake of equitie which the Law requires in these manner of proceedings what equitie can it be to take away the triall of such businesse as belongeth to one Court and to pull it to an other 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 Judges Professours of those Courts correspondent to these causes more than is in the Judges and Professours of the other Courts for the deciding and determining of these matters For albeit otherwise they are very wise and sufficient men in the understanding of their owne profession yet have they small skill or knowledge in matters pertaining to the Civile 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 drift was not to open any doore unto them to enter upon the admirall profession but to preserue the Kings Jurisdiction from the Admirall incroachment as may by the said Statutes appeare whereas contrarily the Civile Law hath sundry titles included in the body thereof concerning these kindes of causes whereupon the Interpreters of the Law have largely commented and others have made severall Tractates 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 having besides the strength of their owne wit other mens helpes and labours to relie upon Besides this businesse many times concerns not only our owne countrey-men but also strangers who are parties to the suit who are borne and doe live in countries ordered by the Civile Law whereby they may bee presumed to have more skill and better liking of that Law than they can bee thought to have of our Lawes and our proceedings and therefore it were no indifferencie to call them from the triall of that Law which they in some part know and is the Law of their countrey as it is almost to all Christendome besides to the triall of a Law which they know in no part and is meere forraine unto them specially when the Princes of this Land have anciently allowed the Civile Law to be a Common Law in these causes as well to their owne subjects as it is to strangers Further the avocating away of causes in this sort from one Jurisdiction to another specially when the cause hath long depended in the Court from whence it is called insomuch as now it is ready for sentence or rather is past sentence and stands at execution cannot be but great injurie to the subject after so much labour lost and money spent in waste to begin his suit anew againe which is like to Sysiphus punishment who when he hath with all his might forced his stone up to the top of the hill and so is as himselfe hopes at an end of his labour yet the stone rowles downe again on him and so his second labour his strength being spent with the toyle of the first is more grievous than the former was which being semblably true in a poore Clyent who hath his cause in hearing there can be no equity in this fiction whereby a cause so neere ended should againe be put upon the Anvill as though it were still rough worke and new to be begun And surely as there is no equity in it so there is no possibility such a fiction should be maintained by Law for that it hath no ground of reason to rest his feete on For if this be granted that such a fiction by Law may be made then one of these absurdities must needes follow either that a shippe may arive in a place where no water is to carry it or if that it arive according to the fiction either the people their houses and their wealth shall be all overwhelmed in the water as the world was in Noahs Floud Ducalions Deluge and so no body there shall be left alive to make any bargain or contract with the Mariners Shipmen that arive there or that the people that dwell there shall walk upon 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 unto him and therefore far lesse possible for any other man to doe So that it may bee well said these things standing as they doe no such fiction can hold and that no action can be framed upon 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 farre otherwise for that when that themselves will convey a Marine cause from the Sea unto the Land they will lay it to bee done in some speciall place of a Countrie bee the place never so unproper 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 body of such a Country or such a Country and not upon the maine Sea or beneath the lowest bridge that is upon any great river next the Sea And therfore in two emulous Jurisdictions when they are so divided 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 una via prohibetur alia via non est permittendum quod prohibitum est directo prohibetur etiam per obliguum for if this were granted then matter enough would bee offered to one Jurisdiction to devour up the other and the Law would be easily eluded which to restraine either of these Jurisdictions to their owne place and to provide that one in his greatnesse doe not swell up against the other hath set either of them their bounds and limits which they shall not passe which as it is the good provision of the Law so ought either Jurisdiction in all obedience to submit it selfe thereunto for that the diminishing of either of them is a wrong to the Prince from whom they are derived who is no lesse Lord of the Sea than hee is King of the Land and therefore in no sort such liberty must be allowed to the one directly or indirectly as that it should be a spoile unto the other which would easily come to passe if when as the Law alloweth not any man to sue a Marine matter by the ordinary course of the Lawes of this Land yet a man will follow it by an extraordinary But where there is an
uniformitie of Jurisdiction as that it is all by sea and all by land there may a thing be fained to bee done in one place that was done in another place without any mans prejudice for that in this case the place is not traversable so it bee not in Criminall matters where time and place is required that the accuser doe not wander from place to place with the injurie of the accuser for howsoever the place and the action is altered yet the truth of the cause remaineth one and the selfe same still And so farre as concerning actions of Trover in Admirall causes Now it doth follow that I should speake of like prejudices that grow to the same by actions of Trespasse but those will I passe over for that in so small a Treatise as this is I cannot goe over all and therefore will I onely put the Reader in minde that there are more devises rising out of the Common Law than one that infest the Admiralty But now to Wils and Testaments wherein they are impeached SECT 4. Concerning Wils and Testaments wherein they are impeached FOr matters of Wils and Legacies they are so proper to the triall of the Ecclesiastical Law of this Realm that the professors of the Common Law themselves doe oftentimes confesse and say they have no more to doe therewith than the Civilian hath to do with the knowledge of the matters of Franktenement and yet even these matters of Testaments and Legacies although Prohibitions be not so frequent in them as they are in the rest of Ecclesiasticall causes yet they are not quite voide of them that in some points wherein the very life and essence of a Will doth stand For whereas the ancient Romans knowing how subject matters of Wils are to forgerie and corruption on the one side and suppression and concealment on the other side to meet with all craft and subtilty whatsoever which might seize on them did most carefully provide that there should be seven witnesses at the least present at the making of every Will Testament except it were in time of some generall plague or sicknesse when so many witnesses could not conveniently be had together for fear of infection or that it were in the Countrie where there are small multitude of people And that those witnesses should be particularly required to that purpose with diverse other observations and circumstances tending all to the safe and sure making thereof which the Ecclesiasticall Law altered afterward in sundry points for that many true Wils were many times overthrowne for want of those precise solemnities It therefore reduced the whole number of those seven witnesses unto two onely agreeably to the Law of God and the Law of Nations where that number of witnesses is allowed as competent to prove any matter so that the same witnesses be honest and credible persons such whose faith is not doubted of The Common Lawyers because themselves in sundry matters very dangerously many times admit one witnesse and give him full credit and that in matters of great weight and importance as though all should bee squared to their rule and framed to their compasse if an Ecclesiasticall Judge in the probate of a Will contrary to the rules of his owne Law will not admit the testimony 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 every matter For answer 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 usus where the onely hand of the Father or Testator without witnesses serveth for a Will so the same be knowne to bee the Testators owne hand or so proved by comparison I would thinke to wise men I had said sufficiently but I will not rest hereupon but will convince themselves by themselves for doe they I pray you in their own proceedings where a Law or Statute requires more witnesses than one content themselves with one witnesse alone yea doe they not in all cases where a certaine number of witnesses are appointed to prove a fact by Law or Statute furnish the cause with so many witnesses as the case desires or else doe they not account the proceeding voide And will they thinke themselves so precisely bound to the keeping of the letter of the Common Law and will they not suffer the Civilian in like maner to cleave fast to the observation of the Civile Law especially when it hath the consent of the Law of God and the Law of Nations and is his Majesties 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 concurre 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 even so many things shall bee obtruded to the Judge for trueth which are starke lyes and many things shall bee pretended to bee gold in shew which in proofe and practise will be found to be no other thing but meere drosse And therefore well decreed the Emperour Lâ—juris urandi §. Simili modo C. de Testibus Constantine that no one mans testimony should bee heard though he were never so great a man in Court But perhaps some man will say If credit shall not be given oftentimes to one mans testimonie much wickednesse will passe away unpunished For reply to which I answer 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 guilty so also it is true on the other side if it be enough to condemnation to be charged by one man alone without any other witnesses no man shall bee innocent and therefore the admittance of one witnesse in causes and the proceeding thereupon to judgement is very dangerous An other like barre to this they lay against Ecclesiasticall proceedings in matters of Testament whereas an Ecclesiasticall Judge proveth 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 Judge thereby took upon him to decree which lands were devisable by Will which not or would by his probate adde a strength unto the Will to make the devise good or bad whereas on the contrary part the Ecclesiasticall Judge by this act doth only testifie that such a person made such a Will that the same was proved before himselfe under his Teste for his last Will Testament but for the
if the usage and custome of the payment it selfe had not beene subject to the Ecclesiasticall cognisance for in vaine shall a man sue for that the Law allowes him no course to come by if it be denyed in the speciallest L. Finals ff de officio ejus cut mandata est turisd l. 3. ff de penu legata point belonging to that suite for this is undoubted Law where ever there is an authority or Iurisdiction granted there are in like manner granted all those things without which that authority or Jurisdiction cannot bee perfected or performed SECT 3. That customes of payment of tythes are triable onely at the Ecclesiasticall courts ANd therefore it is without question as Tythes by the said Statutes are onely recoverable by the Ecclesiasticall Law and not elsewhere so also the custome whereby they are paid is only triable at the Ecclesiasticall Law Otherwise this inconvenience will follow thereupon which in all other Lawes beside this of ours is a great absurditie Bartol l. nulli C. de iudicijs Glos. c. significaverunt de iudicijs that the connexitie of the cause which the Civilians call Continentiam causarum will be dismembred and disjoyned which by all good pollicie together with all her parts emergent or annexed ought to be handled discussed and determined before one and the selfe same Judge one I meane not in number but one in profession for otherwise I should by this assertion barre Appeales which is not mine intent Which course if it were held here in England causes should not be drawn peece-meale in such sort as Medea tore her brother limme-meale and one part of it carried to this Cicero pro Murena Court another to that like unto the rent lims of the childe that were cast here and there by Medea thereby to hinder her father from pursuing her but all should be ended in one and the selfe same Court which would be a great ease to the subject who now to his intolerable vexation and excessiue charges is compelled to runne from Court to Court and to gather up as it were one lim of his cause here and another there and yet happily in the end cannot make a whole and perfect body of it Beside it is a mighty disorder in a Common-wealth thus to jumble one Jurisdiction with another the very confusion as well of the one Law as the other for as Kingdomes are preserved by knowing their bounds and keeping their limits so also Jurisdictions are maintained and upheld by containing themselves within the lists or banks of their authoritie Further unles they will grant that there is an Ecclesiasticall custome as there is a Secular Custome and that the one is as well to be tried in the one Court as the other is in the other they will make their own Doctrine in the before rehearsed Prohibition voyde where they will have it certain that there is a Secular Custome if there be a Secular Custome then doubtlesse there is also an Ecclesiasticall or Spirituall custome for the word Secular is not put in that Glo 〈…〉 Clem. unica in verbo aternaliter de summa tâ—â—nit fide catholica place absolutely but relatively and the nature of Relatives is one to put another and one to remove another but in the Secular customes they barre the Civilian therefore they grant him the spirituall for of contrary things there are contrary reasons and contrary effects and what that which is proposed doth worke in that which is propounded L. Fin. §. plus autem de legatis 3. â—bâ— Angel the same againe that which is opposed doth worke in that which is opponed by which Rule as Temporall Lawyers are to deale in Temporall Customes and spirituall men are not to intermeddle therein so also Ecclesiasticall Lawyers are to deale in Ecclesiasticall causes and Temporall Lawyers are not to busie themselves thereabout And that this was the intent of the King when hee first received the Church into his protection with all the priviledges thereof may appeare hereby that having united both the Jurisdictions in his owne person he did not jumble them both together as now they are but kept them distinct one from the other not onely in authorising the Ecclesiasticall Courts that were before but also in using the very words and phrases that the Jurisdictionaries Ecclesiasticall did use every where in their writings even these words whereupon men now take hold to frame Prohibitions viz. according to the laudable customes and usages of the parish and places where such Tythes grow which were the words of Innocent the third in the Decretals upon the title of Tythe long before these Statutes were made or any other Statutes concerning the true payment of Tythes and Linwod in the same title of Tythes often useth the very selfe same words and phrases that the other doth so that if these words made no Prohibition before the Statute as I thinke it cannot well be shewed to the contrary neither ought they to doe it now since the Statute for that they are spoken still in the Church businesse and not in a temporall matter whose government although it be under one and the selfe same Prince that the temporall state is yet is it distinct from the same as ever it hath beene since there hath beene any setled forme of Church-government in any 1 Cor. 5. common-wealth as may appeare both by the example of S. Paul which never goeth to any temporall power to punish the incestuous person although there were sundry lawes then both in Greeke and Latin written of these matters but doth it by the spirituall sword alone and also by that that in matters of jarre for worldly causes betweene brother and brother hee forbids such as were new Christians to goe to 1 Cor. 6. law before Infidels but adviseth them rather to appoint Judges among themselves to decide such controversies which albeit in those dayes was meant as well of lay Christians as of the Ministers of the Gospell for that the number of them then was small and the causes of suit they had one against an other were not many and might easily be ended by one and the selfe same consistorie yet when the number of the Christians increased and the Church got some rest from persecution the Jurisdiction was againe divided and as there were secular Courts appointed by Princes wherein temporall mens causes and lay businesses were heard so there were also by the same authoritie erected Ecclesiasticall Courts and Bishops audiences wherein either Ecclesiasticall mens causes alone or such as they had against C. de Episcopali audienta â—ertia Lay men or Lay men against them were treated of and determined So that this was no new devise of Henry the eigth or Edward his Sonne that when they tooke upon them the supremacie over the Church as they had before over the common-wealth they did not mishmash both the States together and made one confused heape
hold plea of any thing that is in the said Proviso conteined but it is rather directive and sheweth where the Ecclesiasticall Judge is to give way to immunities and to pronounce for them so that for any thing is conteined in this Proviso to the contrary the cognisance of these matters especially Priviledge Prescription and Composition still remaineth at the triall of the Ecclesiasticall Law as they did before this Proviso was made for Deprascript lib. 2. tit 26. De Privileg lib. 5. tit 33. Tythes and other Ecclesiasticall dueties as may appeare by the severall titles in the same Law hereon written And for the other words Law and Statute therein mentioned when as the King hath two Capacities of government in him the one Spirituall the other Temporall and his high Court of Parliament wherein Lawes are made doth stand as well of Spirituall men as Temporall men and so ought to stand in both houses if the ancient Booke De modo tenendi Parliamenti be true and authenticall which makes the upper House of three States the Kings Majestie the Lords Spirituall and the Lords Temporall and the lower House in like sort of three other the Knights the Procurators for the Clergie and the Burgesses and his Majestie hath within this Realme aswell Ecclesiasticall Lawyers as Temporall which are no lesse able to judge and determine of Ecclesiasticall matters then the Temporall Lawyers of temporall businesse It is not to be imagined but as his sacred Majestie will have those Lawes to be held Temporall and to have their constructions from Temporall Lawyers which are made and promulged upon Temporall rights and causes So also his Highnesse pleasure is and ever hath beene of all his predecessours Kings and Queenes of this Land that such Lawes and Statutes as are set out and published upon Ecclesiasticall things and matters shall be taken and accounted Ecclesiasticall and interpreted by Ecclesiasticall Lawyers although either of them have interchangeably each others voyce in them to make them a Law And that the King doth infuse life into either of the Lawes when as yet their substance is unperfect and they are as it were Embryons 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 even the orders of the House doe evince that there are two sorts of Lawes in that place unconfounded both in the head and the body although for communion sake and to adde more strength to each of them the generall allowance passeth over them all And as they rest unconfounded in the creation of them so ought they to be likewise in the execution of them as the Temporall Law sorts to the Temporall Lawyers so the Spirituall Lawes or Statutes should be allowed and allotted unto the Spirituall Lawyers And as the nomination of these words Law or Statute in this precedent Proviso makes not the Law or Statute Temporall but that it may remain wholly Ecclesiasticall by reason of the Spirituall matters it doth containe the power of him that quickneth it powreth life thereinto so much lesse can the inserting of these tearmes Priviledges Prescriptions or Composition reall intitle the Common Law to the right thereof or the Professours of the said Law to the interpretation thereof for that matters of these titles so farre as they concerne Tythes and other Ecclesiasticall dueties have beene evermore since there hath beene any Ecclesiasticall Law in this Land which hath beene neere as long as there hath beene any profession of Christianitie with us of Ecclesiasticall ordinance neither ever were of the Temporall cognisance untill now of late that they transubstantiate every thing into their owne profession as Midas turned or transubstantiated every thing that hee touched into gold CHAP. III. SECT 1. How it comes to passe that when tythes were never clogged with custome prescription or composition under the Law they are clogged with the same under the Gospel and the causes thereof BUt here it will not bee amisse to inquire since Tythes came in the beginning of the primitive Church within a little time after the destruction of Jerusalem and the subversion of the Jewes policie unto the Christian Church and common-wealth void of all these incumbrances as shall appeare after by the testimonie of sundrie of the ancient Fathers which were neere the Apostles time how it comes to passe since Tythes are no lesse the Lords portion now than they were then and in the Patriarches time before them that these greevances have come upon them more under the Gospel than ever they did under the Law for then never any Lay man durst stretch out his hand unto Malach. 3. them to diminish any part thereof but hee was charged with robberie by the Lords owne mouth and in punishment thereof the heavens were shut up for giving raine unto the earth and the Palmer-worme and Grashopper were sent to devour all the greene things upon the earth And for Ecclesiasticall men it is not read any where in the Scripture that ever they attempted to grant out any priviledge of Tythes to any person other than to whom they were disposed by the Law or to make any composition thereof betweene the Lay Jew and the Lords Levites every of the which have beene not onely attempted against the Church in Christianitie but executed with great greedinesse so farre worse hath beene the state of the Ministery under the Gospel than was the condition of the Priests and Levites under the Law SECT 2. That the causes are two fold First The violent intrusion of Lay men and secondly The over-much curiositie of Schoole men and first of the first cause and therein concerning Charles Martels Infeudations and the violent prescriptions ensuing thereupon THe beginning whereof although it be hard for mee to finde out because there is small memory thereof left in Stories yet as farre as I can by all probabilities conjecture this great alteration in Ecclesiasticall matters came by two occasions the one by the violence of the Laitie thrusting themselves into these Ecclesiasticall rights contrary to the first institution thereof for when they were first received into the Christian world they were received and yeelded to for the benefite of the Clergie onely as in former time under the Law they had beene for the use of the Priests and â—evites onely The other was the too too much curiositie of Schoolmen who being not content with the simple entertainment of Tythes into the Church as the ancient Fathers of the primitive Church received them would needes seek out how and in what right and in what quantitie this provision belongs unto the Church wherein they did by their overmuch subtilty rather confound the truth than make that appeare which they intended to doe By the first of these was
Church of any right or make of holy Church any Layfee that is halowed or sanctified And all thoe that withold the rites of holy Church that is for to say offerings tythes rents or freedomes of holy Church let or distrouble or breake that is to say if any man flee to the Church or Church-yard who so him outdraweth and all thoe that therto procure or assent And all thoe that purchasen letters of any Lordys Court that processe of right may not bee determined or ended And the Canterbury booke saith All thoe ben accursed that purchasen writtes or letters of any leud Court or to let the processe of the Law of holy Church of causes that longen skilfully vnto Christen Court the which shuld not bee demed by none other Law c. And all that malycyously biriveâ— holy Church of her ryght or maken holy Church Lay-fee that is halowed blessed And also all thoe that for malice or wrathe of Person Vicare or Preiste or of any other or for wrongfull covetyse of himselfe with-holden rightfull Tythes and Offerings rents or mortuaryes from her owne parish Church and by way of coveryse fallelyche againe taking to God the worse and to hem selfe the better or else turne hem into another vse than hem dweth or done hem in other place after the rowne will so that they he not done to the same place that they should bee or let by word or by deede any man or woman for to doe her good will and her devotion to God and to holy Church For all christen men and women bene harde bound vpon paine of deadly sinne not oneliche by the ordinance of man but both in the old Law and also in the new Law for to pay truitche to God and holy Church the tythe part of all manner of increase that they winnen truliche by the grace of God both with her travell and also with her craftes whatsoe they be truliche gotten Alsoe the tythe part of all manner fishes and foules and beasts both wilde and tame And all manner of frutes that growen out of the earth Alsoe all that wittingly or wilfully tythen falsly that is to say that geven not to God and holy Church the tenth part of every wynning leefully woâ—nen in merchandise or in any other craftes withdrawen only that expence and the costage that needfully must be made about the thing whereof the winning is getten not tything the winning of one marchandise with the losse of another And all thoe that of the fruites of the earth or of beast or of any thing that neweth in the yeare geven not the tythe wholy withouten any costage All thoe that falsly tythen taken to God the worse and holden the better to her owne profite against the ordinaunce of Boniface sometyme the Archbyshope of Cantorbury by the which ordinaunce throughout the Province of Cantorbury shuld be one manner axing of tythes in this manner wise Of all manner of frutes of earbis of gardens withouten any manner of cost abating of hey where ever it groweth in greate medes or in smale as oft as it neweth of neweing of all manner of besteal of calfe or of lambe fro seaven vpward into the tenth and fro syx downeward for everyche of hem an halfe penny but if the Person or Vicarye will abide till another yeare and tell thilke that leeven and take the other beast that followeth of woole that is woxen of fellis fro purification of our Lady of milke all the while that it dureth as well in Winter as in Sommer but if they will doe gree therefore to the Person or to the Vicary for the profite of holy Church Of fishing of 〈…〉 eing of veneson oâ— beene of all other good rightfully wonnen that newen by the yeare of profite of mills and weris of fishing noe cost abate but to the very value shall the tythe be payd of lesewys communys severelis shall the tythe trulyche bee payd after the number of the beeseis or the dayes as it is most profite to holy Church all werkemen and chapmen that wynnen on her craftes and on her marchandise shulen trulyche pay her lythe to God and to holy Church Alsoe Carpenters and Smithes and Weeveris and all other crafty men and all other hired men and wimen shulen Tythen of all they getten but if they wulle giue any certayne thereof to holy Church at the Persons or Vicaryes will Alsoe of fowles of Calues of Piggs of Gees of Hennes of flaâ—e of Hempe of Corne and of all thing that neweth by the yeare Alsoe of shryding of Trees and of all manner of vnderwood woring or hewed Alsoe men of holy Church moune curse by name hem that wolen not pay her Tythes as it is written in many places of the law of holy Church At the repeating of these Articles the Prelate standeth in the Pulpit in his Albe the Crosse being lifted up and the candles lighted After the Repetition these or the like formall words of Execration are denounced Ex Authoritate Dei Patris Omnipotentis beatâ— Mariae Virginis omnâ—â—m Sanctorum excommunicamus and thematizamus Diabolo commendamus omnes supradictus malefactores Excommunicati sunt anathematizati Diabolo commendati Maledicts sunt in villis in campis in vus in semitis in domibus extradomes iâ—omnibasâ—atâ—is locu stando jacendo surgendo ambulando currendo vigilando dormiendo comedendo bibendo aliud opus faciendo Or as the Canterbury Booke saith But thorow authoritie of our Lord God Almightye and our Lady S. Mary and all Saints of Heuen of all Angels or Archangers Patriarchs and Prophets Euangelists Apostles Martyrs Confessors and Virgines alsoe by the power of all holy Church that our Lord Iesus Christ gaue to S. Peter we denounce all thoe accursed that wee haue thus receiued to you and all thoe that maintaine hem in her sins or geuen hem hereto either helpe or councell soe that they bee departed from God and all holy Church and that they haue noe of the passion of our Lord Iesu Christ ne of noe Sacramentes that bene in holy Church he noe part of the prayers among christen folke but that they be accursed of God and of holy Church fro the soole of their foote vnto the crowne of her head sleaping and waking sitting and standing and in all her words and in all her workes and but if they haue grace of God for to amend hem here in this life for to dwell in the paine of hell for euer withouten end Fiat Fiat Doe to the boke Quench the Candle Ring the Bell Amen Amen This Generall Sentence was solemnly thundered out once in every Quarter that is as my old Booke saith the fyrst Sonday of Advent at comyng of our Lord Ihesu Cryst the fyrst Sonday of Leenten The Sondaye in the Feste of the Trynyte and the Sonday within the vtus octavesweesay of the blessyd Vyrgyn our Lady S. Mary damnation Neither did all such as did then
and carnall men seeke for very greedily humbling themselves onely to God and the rule of their Master Which thing bred such an admiration of him and of his Schollers that not only many other Ordes sprang out from them within few yeares as the Praemonstratenses Cluniacenses Templarians Hospitallers Cystertians and the order of Saint John of Jerusalem but even Popes Princes and people were wholly carried away with the wonderment of them insomuch as every of them did as it were strive who might shew themselves most kinde unto them whereupon Princes built them houses every one in his Kingdome as Clito Ethelbald King of Mercia built the Monasterie of Crowland here in England of blacke Monkes under the rule of the said Benedict in the yeare 716. Popes and Princes granted them priviledges so farre as it concerned either of their particulars the Clergie Nobilitie and People conferr'd goods and lands upon them every one according to his abilitie SECT 3. That the admiration which these Religious Men did breed of themselves in the head of Princes and Popes did procure appropriations of Parsonages and Immunities from Tythes And that the over-conceit which men had of Prayer above Preaching in the Church was an adjuvant cause thereunto IN this zealous bounty of every degree towards these new sorts of men there are two undigested Priviledges granted them both of them so hurtfull and injurious to the Church of God as never any was the like The one was the Annexation or Appropriation of presentative Benefices to these Religious Houses The other the freeing of such Lands or Hereditaments as they held in sundry Parishes from the payment of Tythes to the Parsons and Vicars thereof to both of which the School-mens Divinity gave great advantage as shall be shewed hereafter Either of these had their beginning of one roote that is to say of this false ground that Preaching which is the most true and most naturall foode of the Soule in a Congregation that is come to the profession of Religion already and knowes but onely the Articles of the Christian Faith the Lords Prayer the Ten Commandements Linwood provin eisdem de offic Archidiacont cap. Igncrantia Sacerdotum de officio Archipresbyters and other Principles and Rudiments of Christian Religion is nothing so necessary for the Salvation of a mans Soule as Prayer is Besides that Preaching oftentimes gives more cause of Schisme and dispute in Religion than it doth of profiting and edifying the Soule and therefore it was not permitted by the Provinciall Constitutions of this Realme that Parsons or Vicars of Churches should expound or preach any other matter or doctrine than the Lords Prayer the Ten Commandements the two Precepts of the Gospel that is the love of God and the love of a mans Neighbour the sixe workes of Mercy the seven principall Vertues the seven Sacraments for so many then the Romish Church held the seven deadly Sinnes with their progeny and this to be done vulgarly and plainely Absque cujustibet subtilitatis texturafautastica for so they call learned and orderly Preaching whereas notwithstanding Prayer is evermore profitable every where necessary and never dangerous Furthermore Preaching onely profiteth those that be present and doe beare it and attend upon it but Prayer is availeable even to those that be farre distant yea though they be in the remotest place of the world By which and other like arguments they translated away that maintenance that was provided for the home Pastors who by Gods owne institution were to watch over their Soules to forreine and strange Guides who never communicated to their necessitie in any heavenly comfort but onely tooke the milke of the flock and fed themselves withall But by this pretence of theirs ought not Preaching to have beene disgraced for albeit Prayer bee a necessarie peece of Gods service and so necessary that the Soule of man is as it were dead without it yet is it not †But here it will neede that the Reader use a sober judgement for it cannot but bee thought unequal that Prayer and Preaching should bee so unwarily plac'd in competition as that Prayer should lose by the comparison There may bee alwayes neede of Preaching but then most of all when the Auditorie is unchristian This reason prevailed for all places in the first times but in these last onely for some according to which it were unprofitable to goe about to convert the Indies no otherwise than by our Prayers Yet even in those primitive times which had most cause to call for Preaching we shall find that this duty was of rarer exercise lesse solemnity than that of Prayer as it may abundantly be discovered out of the Liturgies of both the Charches And it is observeable that where Preaching hath beene of the greatest account it hath bin so much beholden to Prayer that it was not onely begun and ended but also discontinued by devotion For wee shall finde the Reverend Fathers Chrysostome and Basil of Seleucia at prayers in the middle of a Sermon See the one in his 39. Orat. the other in his 3. Hom. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Moses the Sonne of Maimon that profound Doctor of the Iewes instituting a comparison betwixt their Sacrifices and the more substantiall Services required in stead of all other nameth that of Prayer and Invocation and of these hee saith that they are c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nearer to Gods first intention and that our way thereunto is bythem afterwards he saith that these are necessarie 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 at all times in all places and for every man See his More Neuoch Helec 3. C. 32. p. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And holy Antioch in his 106 Hom. which is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 saith of Prayer 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that it is of a more sublime Condition than any other vertue And how our Lord himself stood affected to this wee may acknowledge by that where hee calleth the Church his House of Prayer not Preaching which took so well in the elder times that all their Temples were known by the name of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Oratories Nay the Preacher himselfe Prov. 15. is so confident of a just mans Prayer that he dares say that God will even be obedient to it for so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is rendred by the Interpreter of the forenamed Antiochus However It may seeme to be so for when all the Preaching of Lot could prevaile no otherwise than to bring vexation to his righteous Soule the Prayers of Abraham might have saved Sodom if among so many thousands there had beene but ten just men All this while wee would not detract anything from Preaching but considering our selves to live under a State so maturely compos'd and so throughly advis'd and setled in the Faith it will be expected that we should so farre moderate our opinion of Preaching as that our magnifying thereof may no way
or forced to forbeare for want of Characters As the Bishop was to be look't after by those that would come into a Religious House so also by those that would goe out So it seemeth by the Law of Alfred 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Nunnan 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 If any leade a Nanne out of a Monasterie without the Kings leave or the Bishops hee shall pay 120 Shillings In the filling of Appropriations which were made over to the Religious Houses the Law saith that the Bishop had this power That he could binde the Proprietaries to set out for the Vicar Incumbent such a Convenable Portion of the Incomes as the Bishop in his judgement should be pleased to allot See Alexand. 3. to the * Bishop of Worcester De Prab dig C. De Monach. And there be that are well enough perswaded that the B. even now also ought in this Right to be acknowledged and the ground is for that it may be likely to stand without injurie to the Statute of Dissolution For it seemeth by the 27. of H. 8. c. 28. that these Lands are to be holden in as large and ample manner as the Proprietaries did then hold them or ought to have done And an other Clause of the same Statute Saveth to every Person and Persons and bodies politique c. other than Abbots c. all such right title interest c. as they or any of them hath ought or might have had c. But the consideration of this I restore to him from whom I had it The late learned Civilian in the Poore Vicars Plea where the Reader who desireth more of it may be further satisfied Now it is to bee observed how farre forth the Patron was to depend upon the Bishop for the filling of any other Church or Oratorie Most proper to this purpose is the Emperours Novell which was decreed litle lesse then eleven hundred yeares past about the latter end of the 5 Centurie 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is If any man shall erect an Oratorie and his desire be to present a Clerke thereunto by himselfe or his heires if they furnish the Clerke with a Competencie and nominate to the Bishop such as are worthy they may be ordain'd But if those who are intimated by them be rejected by the Canons as unworthy of the Ministrie then let it be the care of the most Reverent Diocesan of the place to present such as in his discretion he shall conceive better of That we may the more certainly know what the Emperours minde is it must be considered out of Panormitan what is the meaning and originall of the Patrons Right which by the Canon is called Ius Patronatus and by the Common Law Advouson The Abbot out of the Law saith that this is Ius honorificum onerosum utile alicus competens in Ecclesia pro eo quod Diocesani consensu Ecclesiam fundavit construxit veldotavit ipse vel is à quo causam habuit Abb. in Rubric He therefore that founded a Church that is fundum dedit gave a piece of ground De Ier. Pat. C. Nobu He also that built a Church upon it 16. q. 7. c. Monasterium Or lastly he that endowed the Church built C. Piae Mentesibid was thenceforth qualified with this Right of Patronage But all this while it is especially to be noted that all this was done Consensu Dioesanâ— which seemeth to have beene so requisite by that of Clement C. Nobis De Iur. Patron Si quis Ecclesiam cum assensu Dioecesanâ— construxit ex eo lus Patronatus acquirit that if Ex eo should be referr'd to assensu nothing makes a Patron but the Will of the Diocesan And it is to bee understood that when a man dispendeth of his temporall estate towards the Founding Erecting or Endowing of a Church whatsoever shall be so conferred after consecration is actually delivered up and made over to God himselfe therefore it must needs be that from henceforth these things cannot properly belong either to the Bishop or the Patron for the Emperour saith Quod Divini juris est id nullius est in bonis Instit de Rerum Divisione §. Nullius rate that neither of them should presse too much the one upon the other and therefore in the beginning the usuall rate that they set downe betweene 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 above that rate But after by the covetousnesse of Monkes and Friers themselves and the remisnesse of Bishops who had the managing of this businesse under the Apostolique See the Incumbents part came to so small a portion that Vrban the fifth by Othobon his Legate here in England in the yeare of Salvation 1262. was faine to make a Legantine whereby he forbad all Bishops of this Land to appropriate 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 sustaine themselves or that the cause were so just that it might be taken rather to be a worke of charitie than any inforcement against Law and that beside with this provisâ— as that if the new proprietaries within sixe moneths next after should not set out a competent portion for the Minister of the fruits of the Benefice themselves should assigne out a sufficience thereout according to the quantitie thereof Which constitution because it tooke not the effect that was hoped there were two Statutes Only the dispensation of those things must be referr'd to Men And to that purpose who of all men could be more fit then the Bishop It seemeth therefore that the right of Presentation may be originally in the Diocesan and wee shall finde it hath beene so by a certaine passage recorded in the life of Bishop Vlrick where the Author faith That when any would build a Church in his Territorie the Bishop freely consented both to the Erection and Consecration Si confestim ille consecrata Ecclesia legitimam dotem in terrâ—s mancip 〈…〉 s in manum ejus celsitudinis dare non differret c. which is answerable to what was before said concerning the dowrie of a Church It followeth in the Author Consecrationeque per act à doteque contradita comprobato illic Prâ—sbytero altaris Procurationem commendarit Ecclesia Advocationem firmiter legitimo hareds panno imposito commendavit that the Consecration being ended and the Endowment delivered up the care of the Altar was committed to the Priest allowed and the Advouson firmely conveighed to the lawfull heire by the putting on of a Robe Author vita Vdalrici C. 7. p. 52. edit August Vindel. 1595. It is now time to consider how farre forth the Bishop departed with this Right to the Lay Patron and for what causes Wee have said that the Bishops Right was not to the things
Idem part 22. q. 87. art 1. who was figured by the tenth number All which that we may grant to be true betweene Christ and all mankinde as it is true indeed and that ten is the perfection of the other numbers under ten for that all the rest of the Digits when they come to ten returne back againe to ten and are multiplied by the coupling of themselves with ten yet where is this proportion betweene Christ and ten in the Scripture that should make this Ceremonie which if it cannot be found any where nor any consent of the primitive Church shewed for it as I thinke it cannot be then may it with as good authoritie be rejected as it is received For albeit Thomas Aquinas himselfe was tearmed a Seraphicall Doctor that is such a one as had a sense in the understanding of the holy Scripture above all others of his age and that he did much profit the studie of Divinity with his wittie distinctions yet is not his authoritie such that it must prevaile in cases of Divinitie without the authoritie of the Scripture and the consent of the ancient Fathers of the primitive Church interpreting this peece of Scripture in that sense as he doth which would make a sweet harmony if it might be had And therefore as to my poore sense better said a learned man of our time to this point writing upon the Sabbath day Iunius in 2. c. 3. Geneseo◠in the second of Genesis which may be also proportionably understood of the tenth for that they were both before the Law in their very number and were but repeated by Moses under the Law because they had beene approved by God before the Law in the selfe same numbers and that which hee saith of the Sabbath is this that albeit it hath a Ceremoniall designation of the day that is that it doth figure unto us our perpetuall rest which we shall have in heaven after that there is a new heaven and a new earth yet there is therein two parts the one naturall the other positive as that God should have a seventh day of worship this is Naturall and therefore doth remaine because it is perpetuall but that this seventh day of the Lords worship should bee the seventh after the Creation of the world this was positive and therefore was changed by the Apostles and blessed men of the primitive Church into the seventh day after the Resurrection of our Saviour Jesus Christ which as it is verified by him in the Sabbath so may it be in like sort vouched by like reason in the tenth wherein also by like semblance there are two parts the one naturall the other positive The naturall is this that God our of all the fruits of the earth the increase of cattell that are worthy of him and fit for mans use should have a tenth both in the acknowledgement of his universall government over us and also for the provision of his ministers and therefore this remaineth in that sence immediately after the disolution of the Jews policie the good Christians of the Primitive Church as soone as they could get any outward forme of a Church peace from persecution received it in the very quotitie as a thing no lesse belonging to their Ministers than it did appertaine to the Priests Levites of the Law But that the Lord annexed these Tythes by Moses to the Priest Levites for their maintenance during the time of the dispensing of the mysteries under the Law this is positive and therefore changed by the good Christians in the Primitive Church frō the Jewes Ecclesiastiques to the Christian Ecclesiastiques Neither can it be thought that this number came frō the Judiciall part of the Law as a fit proportion to maintain one Tribe out of the revenues of the other eleven Tribes for that this number or quotitie was revealed to be Gods long before the Law and before there were any such division of Tribes among the people of Israell which then were not but were parted afterward by Moses into families according to the number of the twelve sonnes of Jacob. And therefore it is not to be presumed that the Law which came long after imprinted a forme upon that which was so long in beeing before there was any Law or Ceremony But as the Apostles or prime Christians vvhen as they did first change the day of the Sabbath by divine inspiration or otherwise from the day of the Creation to the day of the Resurrection durst not substitute any other day into the place of the first day than a seaventh for that the Lord had revealed his pleasure in many places of the Scripture as concerning that number for his day of vvorship so that no other day could be appointed for his day of worship than a seaventh So neither durst the good Christians of the Primitive Church moved no doubt with no other instinct then the other were when they translated this provision of Tythes for their ministery from the Jewish Church unto their owne Church change the number of ten into another number besides more or lesse For that God had no lesse manifested his will in sundry parts of the Scripture as concerning this number to be a number for the maintenance of his ministrie than he had declared his pleasure as concerning that other number to be a day for his honour challenging it every where in the Scripture in the very quotitie for his owne right and counting it robberie if it were at any time with-holden from him And therfore it may be well thought the School-men herein did great wrong to the Church who by their quaint distinctions brought this certaintie into an uncertaintie which is no where to be found in the Scripture Which I am more bold to speake for that I see some have trod this path before me and shewed by good demonstration that the turning of this quotitie into a competencie is a thing nothing warrantable by the word of God but that the quotitie ought still to stand as a perpetuall right due to God and his Church But hereof hitherto CHAP. V. SECT 1. That a Bishop being Lord of a manor and prime Founder of a Benefice could not in the first erection thereof by his own capacitie retaine any Tythes in his hand and passe the same after in Lay fee to his Tenant and so give cause to his Tenants of prescriptions against the Parson ANd so having passed over this whole proviso of Law Statute Priviledge Prescription and Composition I might well leave the turning of this stone any more but that yet there remaineth one Prohibition of prescription to be handled which in my fancie is worse then all therest for that it draweth away from the Parochian Church her maintenance transferreth it upon Lay and that which is worse it makes Bishops to be instruments hereof who are to be patrons and defenders of Churches and not pillers or powlers of the same And yet the authors thereof do
the Parochian Ministers of the Parishes vvhere they grew claiming the same by right Or the Temporall Judges vvhose is the Cognisance of the Tytle and Tenure of the ground as also is the setting letting buying selling and other alienating of the same For the point it selfe the Statute maketh no mention but passeth it over with silence and therefore it is to be presumed that it meant that it should there rest where it was before the making of the Statute for the Statute was not made in derogation of the Ecclesiasticall proceedings that were before but in affirmance thereof as the whole drift of the said Statute doth shew And if the Statute had meant otherwise it vvould surely have expressed it either in the proviso it self or after in the derogatory clause where it maketh an enumeration of such things as it intended should be exempted from the tryall of the Ecclesiasticall Law and by vertue of this Statute should not be comprised under the same among which there is no word of this proviso or any other in the same Statute before named Neither is it unto the purpose that the Common Law of this Land taketh knowledge of the Tenure and Title of Lands and such other complements belonging to the same for these things that are here in question are no part of those Legall Essences which the Law requireth to the Tytle and Tenure thereof as is Fee-simple Fee-taile and other of like nature according to the learning of that Law but these are certaine accidents over and beside the Tenure of the Land which may be present or absent without the injurie of the Tytle as God many times turnes flouds into wildernesse and springs of vvater againe into drinesse and a fruitfull Land makes hee barren for the wickednesse of them that dwell therein and yet the Tytle or Tenure of the ground is not changed by these changes of qualities but remaines the selfe same that it was so that these things are no more subject to the ordering of the Common Law than it is in the Common Law to judge and determine what mould is white and what is blacke what ground will beare wheat vvhat barley vvhat oats for these things are no matters of skill of Law that they need to be fetcht out of bookes but they are matters of common experience which every country man can as well skill of as the greatest Lawyer that is and therefore the Law in this case is not desirous of any curious proofe but contenteth it selfe onely vvith the depositions of two or three honest men which speake sensibly and feelingly to the point that is in hand vvhich is enough to direct any wise Judge in his sentence so that it needs not these long circumstances of twelve men to teach the Judge what and how truly the witnesses have deposed For if every qualitie of the ground resteth in the mouth of twelve men onely then should no man be able to say out of the mouth of a witnesse and pronounce thereupon this ground is mountaine this is plaine this is medowe this is arrable unlesse hee were warranted by the verdit of twelve men thereunto which if it be an absurditie to hold then sure it is a like absurditie to say that barren heath waste cannot be pronounced without a Jurie for that these things are like obvious to sense and of like qualitie as the others are And I pray you when they have drawne it unto their tryall what do they in effect otherwise than the Ecclehasticall Judge would or should have done if it had remained still under him for do they give credit simply to the conceit of the Jurie as touching that which hath beene declared and pleaded in the cause before them or do not the Judges themselves rather make a briefe of all that hath beene pleaded in the cause before them and thereof make as it were a verdit and put the same in the mouth of the twelve for their verdit before they goe from the barre So that the whole weight of the cause standeth rather in the Judges direction in such sort as it is at the Ecclesiasticall Law than it doth in the mouth of the Jurie for the Jurie men for the most part are simple people and scarce foure of the twelve understand their evidence so that it may seeme rather to be a matter of superfluitie than of good policie to referre a matter to their verdit vvhen as they say no other thing than what the Judge taught them before Stultum est enimid facere per plura quod fieri potest per pauciora for albeit perhaps some capricious fellow of the Jurie upon the confidence of his owne braine sometimes start aside from that which the Judge hath told him and draw the rest of his fellowes as so many sheepe after him yet for the most part the Judges voice is their direction their loadstone and the North pole to guide them in this businesse Besides in this Proviso as in some other precedent there is a great disadvantage offered to the Clergie which they much complaine of and that is that in cases of this nature they are compelled to suffer triall under them who are in a manner parties unto the suit by reason of the interest they have therein either in present or in consequence so that many now adayes learning too late by other mens harmes what the event in their owne cause will be chuse rather to lose their right than to venture their cause upon such partiall Judges as the twelve men are SECT 5. That the Boughes of great Trees are tytheable and so also are the bodies but in the case of the Statute onely ANd so far as concerning those prohibitions which are forced out of this Statute for naturally they grow not out thereof so that I might now passe over to the other branch of my division that is of such matters as are now held by the Common Lawyers to bee in a certaine measure onely of the Ecclesiasticall proceeding but were anciently wholly of the Ecclesiasticall cognisance but that the name of the Statute De Sylua caedua offering it selfe unto mee in the conclusion of this Statute of Edward the sixth gives mee occasion to speake somthing thereof before I come to the rest This Statute as the words thereof doe shew was made in behalfe of the Laitie against the Clergie for the exemption of great Woods of twenty yeares growth and upward from the payment of Tythes and that in three cases onely where the wood was great when it was xx yeares of age and upward where it was sold to Merchants either to the profit of the owner himselfe or in ayde of the King in his warres so that without these cases it seemeth the Statute intended no further exemption for Statutes are things of strict Law and are no further to bee extended than the words thereof give matter thereunto especially when the thing it selfe naturally was liable to ordinary course of the Law as
legge or hand are no accessaries to the body for that the legge or hand are of the same substance that the bodie is The Child neither while it is in the Mothers wombe L. 1. ff de ventre inspiciendo neither after it is borne is an accessorie to the Mother for while it is in the Mothers wombe it is part of the wombe and after it is severed from her wombe it is a man or woman like principall as her selfe is But that which is an accessory to an other must be of an other nature than the principall is so in naturall living creatures haire hoofes hornes and finnes and such other like excrements are accessories to the creature whose they are for that they are of a farre different nature from the bodies out of which they come and so in other naturall things not living as the Earth it selfe is the Trees Grasse and fruit that spring out of the same are accessories thereto Further in Civile matters expences and executions are accessories to the causes out of which they rise and in Marriages Dowries and Jointures are accounted accessories to them for that without L. dotis ff de jure dotium Marriage neither Joynture nor Dowrie can stand Usurie is said to be an accessorie to the principall not in respect that the proper subject of either of them is Money and so there is one substance or nature of them both but in regard of the dependencie the one hath of the other for hee that will make challenge to Usurie must first prove there is a principall But for the better clearing of these matters of accessorie principall we must know that in bodies whose substance is all one There are some parts like which the Philosophers call partes similares some other unlike being likewise called of them partes dissimilares which in no sort are accessories one to an other but make one continued bodie of both which the Law cals 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Similar parts are such as have one substance forme and figure as the trunke or body of a tree is all one in inward essence and outward shape Dissimilar parts are those which have one inward nature with the other but are divers in outward shew as the boughes and rootes of the Tree are divers betweene themselves and different from the body and yet all agree in one substance and have all the generall name of Wood whereby they are discharged from being accessaries the one to the other and yet they are not under one capacitie or service or one comprehension of Law because they are unlike one to the other and of unlike things there is unlike reason and unlike consequence Now upon these grounds to exempt Timber Trees wholly from the service of him that is Lord aswell of the tall woods as of the low shrubs is very hard for though himselfe dwels not in houses that are made with mans hand nor hath any need of tall Trees to repaire his Tabernacle or prop up his dwelling yet since hee hath left such behinde him as have charge of his flock and feed them in word and worke untill hee come and they dwell in earthly habitations as other men doe and their edifices and buildings have need of repaire in like sort as other mortall mens houses have being all in like manner subject to rottennesse and corruption great reason it had beene to have allowed him some proportion of these great woods towards his servants necessary uses during the time of their service here and if not in the very tenth it selfe yet in the xxx xl or l. part of the same that God thereby might have beene aswell acknowledged to be the Lord of the great Oakes of the Forrest and that by him they have their length breadth and thicknesse as he is accepted and reputed to be Lord of the small brambles and bushes of the field for as now the case standeth God may either seem to have forgot himself that hee hath not made timber trees tytheable as hee hath done other smaller woods especially having such occasion to use them both in the Chancels of Churches that are dedicated to his uses and also in the buildings and repairings of his Ministers houses who supply his roome in their severall Congregations untill hee returne to Judgement or that may well be objected against us in allowing such things for Tythes as us please and disallowing the rest as was by that ancient Father of the Church Tertullian objected against the Senate of Rome who being intreated by the Emperour Tiberius for the strange wonders and miracles he heard to be wrought by our Saviour Jesus Christ that he might bee entertained among the number of their Gods refused so to doe for that they heard that our Saviour was a Jealous God and did in no sort admit the societie and fellowship of other Gods which this grave Father hearing although many yeares after said merrily although wisely That God should be God if Man would let him And thus far of those causes which are held to be absolutely of the Ecclesiasticall cognisance and yet notwithstanding are ecclipsed by interposition of sundry contrary matters CHAP. VII SECT 1. In what cases Diffamatorie words belong to the Ecclesiasticall and what to the Common Law NOw as concerning those things which have beene accounted but in a certain measure of the Ecclesiasticall cognisance yet notwithstanding have anciently in a manner been tried wholly at the Ecclesiasticall Courts such as are matters of Diffamation and matters of Bastardie both which now adayes are much challenged by the Temporall Courts to be of their cognisance But here first of Diffamation then of Bastardie To diffame therefore is as Bartol saith to utter reproachfull Bartol l. turpâ—t ff de legat 3. speeches of another with an intent to raise up an ill fame of him and therefore himselfe expresseth the act it selfe in these words Diffamare est in mala fama ponere Albeit Diffamations properly confist in words yet may they also be done by writing as by Diffamatory Libels also by deeds as by signes gestures of reproach for these no lesse shew the malicious minde of the Diffamer than words do Diffamatory words are uttered either in some scoffing or jesting manner so as facete merry men use to doe to make Linwood c. authoritate verb. quacunque de causa in glosâ—de sent excom the company merry wherein they are or they are spoken by some that have some weakenesse or distemperature in their brain either by drink phrensie or other lightnesse or by any rashnesse in their tongue or they are poured out upon some rancor and malice by some that envy another with intent to diffame him spread abroad a matter of disgrace upon him If they be spoken in a jesting manner to make the company Arist 4. Ethic. cap. antepenult merry if it bee in a fine sort delivered it is by the Greeks called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉
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 hee is not justly to be charged neither is there any just cause offered the diffamer why hee should use such disgracefull speeches against the other then is it altogether punishable For that such things tend onely to contumelie and despite which the Law seeketh by all meanes to represse for that thereby charitie betweene man and man is violated and the peace of the Common-wealth is many times broken and disturbed The proceeding in these causes in the Civile Law was of two sorts for it was either ad publicam vindictam or else ad privatum interesse as the partie injuried made his choice thereof Ad publicam vindictam was when the partie Diffamed ff ad L. Corneliam l. in constitutionibus §. ult sought to have the Diffamer recant his words or to undergoe some open and infamous punishment for his rash and malicious speeches whereby it might be publikely knowne abroad that he did the other wrong But Ad privatum interesse was when hee sought not the ff de verborum obligation l. stipulationum §. planè ff de rejudicat L. si quis ab alâ—o recalling of the slaunderous speeches which were given out against him but esteemed his credit at some great rate as that hee would not for a thousand pounds or more or lesse quantitie according as the worth and calling of the person is have had such speeches gone out of him and so seekes to have his credit salved by recompence in money as the Judge or Jurie upon proofe of his worth and place shall esteeme it and taxe it In these actions hee that sued ad publicam vindictam and had followed so farre as that he had brought it to a Recantation or a publike disgrace could not have recompence of his credit by money save onely in case of commutation neither hee that had got his credit valued by money could have a publique disgrace also inflicted for his satisfaction but what way hee had chosen with that he must have rested contented for that irefull mens wraths otherwise would never have beene satisfied and the prosecution of these actions otherwise would be confounded These two kindes of proceedings the Princes and Sages of former ages seeme to have sorted to the two kindes of Jurisdiction that are amongst us 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 sinne which is all one as when the Civilians say when it is done ad publilicam vindictam it shall be tryed in the Spirituall Courts whereupon by argument of contrary sense it followeth that where the punishment of sinne is not required but amends in money is demanded there it is to be tryed in the Temporall Court for the Law would that â—â—ery man should have his remedie agreeable to reason in what sort him best liketh And therefore be the fault what it may be that the words of the Diffamation do sound unto as long as it stands but in words and the partie doth not take upon him to justifie the matter that is comprised under those words and doth seeke but for the punishment of the slanderous words onely so long it is to be tried at the Spirituall Law for the Law speaketh in generall in cases of Diffamation where punishment of sinne onely is required so that where a man is called Traitor Felon or murtherer or any other crime belonging unto the Common-Law being every one of them words of great diffamation so the partie therein seeke punishment onely and not his private interest there the Spirituall Law is to hold plea thereof For where the Law doth not distinguish there neither ought wee to distinguish but the Law hath said in generall that causes of Diffamation whose prosecution is thus qualified do belong unto the tryall of the Spirituall Law and therefore even those cases before remembred where the partie followeth this kinde of prosecutions ought by that Law to belong unto the Spirituall Court as on the contrarie side Spirituall causes of Diffamation being propounded to a pecuniarie end ought to be ordered in a Temporall Court But where any man takes upon him to justifie the crime that hee hath objected there either Court is to hold plea of the crime that properly belongeth to that Court for that now words are no longer in question but matter is in tryall whether the partie diffamed hath indeed committed that offence that he is charged withall or no which can be tryed in no other Court than in that to which it doth properly appertaine And that this was the course anciently held in matters of Diffamation betweene the Ecclesiasticall and Common Law it is manifest by the Statute of 2. of Edward 2. Edw. 3. c. 11. the 3. chapter 11. where although the Statute taxeth the perverse dealing of such who when they had beene indicted before the Sherifes in their Returne and after delivered by Inquest before the Justice of the Assise did sue the indictors in the Spirituall Court surmising against them that they had diffamed them and therefore in that case forbad the like suits for that justice 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 cognisance and that this was forbidden it was not for that words of this nature could not be censured at the Ecclesiasticall Law when punishment of sin onely is required but for that it was not fit that those things which had beene once ordered in one Court should be called againe to examination in another and therefore the generall proceeding in matters of Diffamation is not there prohibited but the particular crossing of matters after judgement is there reprehended So that the distinction whereof I formerly spake which taketh upon it to determine when a case of Diffamation is of the Temporall cognisance and when of the Ecclesiasticall cannot here take place for that it is contrary to the former Statute or Decree that divided these cases into Temporall or Ecclesiasticall cognisance by the varietie of the prosecution thereof and that it is contrarie to the ancient practise that hath confirmed this prosecution in either Court but especially in the Ecclesiasticall Court which hath still holden the triall of such Diffamations wherein sin hath bin only sought to be punished untill now of late that men have stept over the bankes of theirauthoritie and confounded either Jurisdiction with the promiscuous acts one of another when as the Statute it selfe is plaine that the Authors of this Statute or Decree whethersoever you call it which set these bounds to either Law in proceeding upon matters of Diffamation
respected not so much the qualitie of the crime upon which the Diffamation grew as the manner of proceeding therein ayming in the one at publique vendict which is to be sought out of the Ecclesiasticall Law and in the other at private 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 equall 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 praejudiciales that is such that draw smaller causes unto them but themselves are drawne of none other but such as are like principall or greater than themselves are So that unlesse the manner of proceeding bring these causes under the compasse of the Common Law in such sort as I have before shewed the coupling of them with another matter of the same Law will hardly bring them under the triall thereof for that there be few actions greater then it selfe is so that if the crime be Ecclesiasticall howsoever 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 be true in Diffamations springing out of Temporall crimes where punishment is required for the offence committed and amends in money is not demaunded unlesse happily that grow of penance injoyned which the offender will redeeme by giving money to the Judge or to the partie grieved And this I take to be a farre better limitation for either Law having the ground of the Civile Law and a Statute of the Common Law and common reason it selfe for it than the other divise is which so distinguisheth this businesse as still it makes it rest in the mouth of the Judge which cause of Diffamation is meere spirituall and which not which were not to be done if there were cleare dealing in the matter for Lawes are so to be made as that as little as may be be left to the discretion of the Judge but all be expressed as farre as the nature of the cause vvill give leave vvhich albeit it be hard to doe for the varietie of the cases that every day happen never thought on before yet that is to be laboured so farre as may be for this libertie of leaving many things to the Judges discretion is many times great occasion of confusion in Judicature saying sometimes this and sometimes that as his private humor shall lead him and therefore a plaine distinction betweene both the Lawes vvere best that every man may see and say vvhat is proper to either of them SECT 2. That the suit of Bastardie as well in the principall as in the incident belongs unto the Ecclesiasticall Law ANd thus farre as concerning matters of Diffamation Now followeth that I speake of matters of Bastardie Bastardie is an unlawfull state of birth disabled by divine and humane Lawes to succeed 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 be sole and unmarried 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 be sole and unmarried for that either they are already precontracted to some other or that they be in so neere a degree of affinitie or consanguinitie one to the other that the marriage would be damnable the issue thereof unlawfull 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 Civile Law Filii Naturales because they were begot by such as they held for their wives and yet were not their wives who might be legitimate by sundry waies as hereaster shall be shewed Some other begot of single women if they were begot in vage lust without any purpose to hold such a one for a Concubine but upon a desire only to satisfie a mans present lust whether they were begotten by married men or single men were called Spurii vvho for the most part are putative children and their father is not otherwise knowne then by the mothers confession vvhich sometimes saith true sometimes otherwise Isidore saith they vvere so called because they were borne out of puritie for that such kinde of lust is contrary to holy Matrimonie whose bed is undefiled and therefore the other is corrupt and abominable But where any was borne of a woman single or married that prostituted her selfe to every mans pleasure and made publike profession of her self to be an harlot such as they are whom the Law calleth Scorta these were called Manzeres Those which were begotten of married women were called Nothi because they seemed to be his children whom the marriage doth shew but are not no otherwise than some feavers are called Nothi that is bastard feavers because they imitate the tertian or quartan Feaver in heat and other accidents but yet are neither tertians nor quartans as the learned Phisicians well know but these are counted so to bee bastards if either the husband were so long absent from his wife as by no possibility of Nature the childe could bee his or that the Adulterer and Adulteresse were so knowne to keepe company together as that by just account of time it could not fall out to be any other mans childe but the Adulterers himselfe and yet in these very cases within this Realme unlesse the husband be all the time of the impossibility beyond the Seas the Rule of the Law holds true Pater is est quem nuptiae demonstrant The most nefarious and last kinde of Bastards are they whom the Law calleth Incestuosi which are begot between Ascendents Descendents in infinitum and betweene Collaterals so farre as the Divine Prohibition and the right interpretation thereof doth stretch it selfe The effects of these sorts of Bastardies are divers First it staineth the bloud for that hee that is a Bastard can neither challenge Honour nor Armes from the Father or Mother for that he was begot and borne out of Matrimony which is the first step to Honour and therefore the Apostle calleth Marriage honourable whereupon it must H 〈…〉 13. 4 follow that the opposite thereof is shame for albeit it bee no sinne for a Bastard to be a Bastard yet is it a defect in him to be such a one and a thing easily subject to reproach 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 unlesse there bee some other collaterall provision made for the same for that all such Lawes and Statutes as are made
the Prince and Common wealth had no interest in such a subject to see hee did not waste his state and abuse his goods whereby many great houses are overthrowne and many children whom the Fathers carefully provided for never leaving raking and scraping all their life time that their children after them might live in great plentie and abundance come to great shame and beggerie But the Civile Law hath remedie for it for the Law counting such a man that is in this sort ff de curatorib furioso aliis â—â—tra minores dandis impotent in his deeds howsoever he be otherwise sensible in his words to be halfe mad and to be a young man in his manners how old soever otherwise he be in his yeares sets a Curator over them for the preserving and well ordering of their state no otherwise than if they were children or mad men indeed who so long have power over them and their goods untill they come to sane manners to which if they once returne the Curators office ceaseth The like they do to a widow or sole woman which liveth riotously having neither regard of her fame nor of her state L. et mulieri ff eod I finde an old practice auciently used in the Ecclesiasticall Courts for restraining Executors or Administrators for dealing covenously in an Executorship or Administratorship when there are more Executors named in a Will than one or more Administrators deputed by the Ordinary in an Administration than one which were well if it were recalled and brought backe to his former use againe For now as things stand many times one capricious fellow named an Executor in a Will or appointed Administrator by the Ordinary with some other well-meaning men getting a start in this businesse of the rest ingrosseth all into his owne hands and without privitie or concurrence of the other selleth releaseth and disposeth all at his owne pleasure contrary to the minde either of the Testator or the Ordinary who would not have named so many in the Will or Administration but to the intent that all might or should execute and administer and one communicate their acts with another The contrarie whereof is many times very prejudiciall and hurtfull to those that are to take benefit by the said Will or Administration who for the vvant of the due performance of this kinde of proceeding are defrauded of all that which in right or reason should have come unto them either by the Testators good-will or by the benefit of the Law And yet there is no remedie for this in Law so farre as I know for that all these making but one person in Law the Law yeelds no action to the one to sue the other but yet the ancient practise of the Ecclesiasticall Law hath remedie which would redresse all this mischiefe if it were called again to use might goe without controlmeÌ„t as the equity of the cause doth require And the remedie is this that such other of the Executors or Administrators as are in this sort interverted from the execution of the Will or Administration by the subtiltie of any like Executor or Administrator should crave the assistance of the Judge and will him by vertue of his office to call in such practique Executor or Administrator and to command him under paine of excommunication hee proceed no further in the sole execution thereof but communicate all his acts and dealings with the rest of his Coexecutors or Coadministrators which if it were so ordered would make many mens Wills and Administrations better performed than they are and a great sort of poore Orphans states more sure and certaine than commonly they are in such Executors or Administrators hands And certainly in this case there is some good use of Supervisors in dead mens Wils whom many men meerly jestar calling them candle-holders as though they could do nothing else in the execution therof but hold the candle while the Executors tell the Defuncts mony if they might be permitted to put in practise that authoritie which the Law giveth them and that is when they finde any Executor deale fraudulently in the execution of any Testators Will wherein they are named supervisors or do ingrosse all the state of the Defunct into his hands as hath beene before said they call him to a particular account that it may be seene how the administration stands and each Executor may commumunicate to other particular receipts and disbursements which if any shall refuse to do then may the Supervisor make thereof complaint unto the Judge as though the same man dealt not truly in the execution thereof who though perhaps in the beginning could not take bond of him for ff De administratione tutorum l. 3. §. 1. the true execution of the Will because the Testator had made choice of him and therein approved his faith and that no man required caution of him for any Legacie in the Will be queathed in which case the Judge might take bond of him for securitie of such Lagacies as are bequeathed in the Will yea though his faith hath beene approved by the Ordinarie as hath beene before remembred yet may the Judge in this case if hee finde him justly suspected of fraud and deceit remove him by the learning of that Law For Instit de suspectis tutorib vel curator teto tit neither the Testator himselfe if hee were alive againe would indure him in this case but would blot his name out of his Will neither ought the Judge to suffer him whose care is to see that dead mens Wills take their effect according to the Testators meaning All which the Law hath provision for and for infinite things else of like good order in these cases if they might be suffered to put them in execution without impeachment And so farre as concerning those things wherein the Civile and the Ecclesiasticall Law might be relieved without prejudice to the Common Law for because they have no practise thereof and yet do not I bring forth these as the onely causes wherein the Civile and Ecclesiasticall Law may be licenced to deale in over and besides the practise of those things that they have already 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 CHAP. III. Of the necessitie of retaining the practise of the Civile and Ecclesiasticall Law in this Land BUt now to the necessitie of the maintenance of the Civile 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 beene already said as concerning the Civile and Ecclesiasticall Law may well imply the necessarie preservation of them both within this Land yet because it was a thing I promised to shew in the beginning of this Treatise after that I had gone over the rest of the parts of my
division 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 every man knowes that every well ordered Common-wealth stands on two parts principally the politick part which consisteth of the Prince and people and the Ecclesiasticall part which standeth in Sacris Sacerdotibus And therefore well said the Emperour Two of the greatest things that God ever gave unto In authent quon oport Episcopod in prin col 1. Auth. de non alienand c. rebut Eccl. c. 2. §. 1. the world meaning earthly things was the Empire or secular government whereby the outward man is ordered and made as Aristotle saith bonus civis that is a good and loyall subject 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 government in generall neither can the one of these be wanting but the other will be ruinated and brought to desolation Secondly no man is ignorant of this but in politique government two things sway the whole state the one is peace at home and the other is warre abroad which as they have their seasons so they have their causes and effects the one from counsell at home the other from discipline abroad neither can the one or the other of these be maintained but by their private and proper Lawes Beside in peace who seeth not there is as much need 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 wee abound with as there is provision to be made for the increasing and preserving of those things that wee have rising and growing by land in our owne countrie neither of which can be had or injoyed without their proper Lawes fit and appertaining to either policie And what Law is there that ordereth these businesses but the Civile Law onely which giveth a forme to Navigation and all occurrents that happen by sea whether they be in or about the Navigation it selfe or the concontracts or as it were contracts that are made in upon or beyond the same As a Legall forme is requisite in peace at home and Marine affaires abroad that every thing may have his due effect according to the right thereof so also it is necessary in warlike exploits upon the Sea that every action have his limits and bounds whereby Justice may bee ministred which if it be to be observed where lawfull warre is held betweene Prince and Prince that every one be not left unto his owne lust much more is it expedient to be put in ure in Piracies and other Sea-robberies where the innocent is spoyled and the spoiler is enriched The redresse whereof is not but by the Admirall Law to whom the Princes of this Land have granted that authoritie For the often commerce of Princes with Princes the negotiation that one State hath with an other there is nothing more necessary than frequent Embassages wereby intelligence may be had what danger one State intendeth to an other how the same may be prevented by Leagues or otherwise and how the same may be made and maintained I know not what Law serves better for all these ends and purposes than the Civile Law In matters that appertaine to the soules health the Preacher teacheth out of the word of God wherein the right service of God standeth hee ministreth the Sacraments unto the people and instructeth them in other fundamentall points of Religion but it is the Ecclesiasticall Law that compelleth men to the due observance hereof and punisheth the trangressors All men grant that there is a provision to be made for the Minister for that it is against reason that any man should goe to warfare on his charges but it is the Law of the Church that sets out this provision and yeeldeth remedie for the recoverie thereof if it be denied Nothing is more due unto the dead than that their last Wils should be observed for that it is such an ordinance as a man hath not in his power againe when God hath once called him hence neither is there any thing that Princes have more gratiously granted unto their subjects 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 provision the Civile and the Ecclesiasticall Law are above all other Lawes most religious Christening Wedding Burying whereby a man entreth into this world converseth in the world and returneth againe unto the earth from whence he was taken and so after passeth to glorie and everlasting blisse are every one of the Ecclesiasticall cognisance How many men of great skill such as few Princes have greater in all kinde 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 Universities and in sundry other places of this Realme not strangers or forrainers but home-borne subjects of the same faith of the same religion of the same kindred and familie of like alleagiance to the Prince and service to the Commonwealth as other his good subjects are even those that oppugne this profession chiefly whose practice if it be overthrowne or provision lessened not onely those that are now present make profession of this knowledge shall be faine to turne their copie but those that are futurely to come will change their profession when they see 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 every Father will say unto his Son in like sort as Ovids Father said to him when hee saw him addict and give himselfe wholy to Poetrie Studium quid inutile tent as It was anciently said of the profession of these Lawes Dat Justinianus honores but now it is so far off from that that it conferres honours as that it is almost a discre dit for any man to be a Civilian in this State and the profession thereof doth scarce keepe beggerie from the gate As God doth dispose his government by justice mercie whoreof notwithstanding mercie hath the supreme place in the Lords Tabernacle as that which was put above upon the Arke wherein were the two Tables of stone in which the Law was written to which St James alluding Exod 25. saith that mercie triumpheth over judgement so the Princes of this Land to the imitation of that heavenly representation lames 2. have appointed two supreme seats of Government within this Land the one of justice wherein nothing but the strict letter of the Law is observed the other of Mercie wherein the rigour of
the Law is tempered with the sweetnesse of equitie which is nothing else but mercie qualifying the sharpenesse of Justice to either which Courts they have sorted men fit for their skill and education to manage the same that is to the seat of Justice the professors of the Law of this Land who may be thought best to know the Justice of the same but to the other they have assigned the professors of the Civill Law for that a great sort of titles of that Law are titles of equitie as whatsoever is Jus praetorium or Jus aedilicium with them is matter of equitie so that they may seeme best able for their skill in these titles of which no other Land hath the like to assist the Lord Chancellour in matters of Conscience Who though he be a man for the most part chosen by the Prince himselfe out of the rest of the Sages of this Land for his speciall good parts of learning and integritie above the rest as now the honourable person is that occupieth that place who is as Tullie said of that eloquent Orator Marcus Crassus Non unus ex multis sed unus inter omnes propè singularis so that they might be thought for their great and eminent wisdome in all things appertaining to their place able to direct themselves yet because it is Divinitatis potiùs quā humanitatis omniū rerū habere memoriam in nullo errare as one saith It was providently done by Princes of former age to joyne to these great personages men furnished with knowledge in these cases of conscience wherin if they should at any time stick they might be advised by them that are assessors with them what they find in the law proportionable to the case in hand that thereto they might square their decree or order accordingly whose variety in these cases is such that hardly there can fall out any case in practice but there will be some Law in that learning conformable unto it which opportunity of men furnished with this knowledge for that seat his Majesty shall want unlesse the study of the Civill Ecclesiasticall Law be maintain'd which also for the cases of equity constience therin is cald of the old writers Aequitas Canonica And what reason gave occasion to these precedent Princes to place men indowed with the skill of the Civill Law in the Court of Chancerie the same also ministred unto them mindes to commit unto the selfe same men the ordering of their Courts of Requests for that therein for the most part are handled poore miserable persons causes as widows and Orphans and other distressed people whose cases wholy relie on pietie and conscience as a fit subject for that Law to deale in which also will take a maime if the studie of the Civill Law be not upholden So then to deny a free course to the Civill and Ecclesiasticall Law in this Land in such things as appertaine to their profession or to abbridge the maintenance thereof is to spoyle his Majestie of a part of his honour whose glory it is to be furnished with all sorts of professions necessary for his state and beneficiall for his subject to weaken the State publique bereave it of grave and sage men to advise the State in matters of doubt and controversie betweene forraine Nations and themselves to disarme the Church of her faithfull friends followers and so to cut the sinewes as much as in them lyeth of Ecclesiasticall discipline and to expose her to the teeth of those who for these many yeares have sought to devoure her up and so now would do it if the mercifull providence of God and the gracious eye of the Prince did not watch over her And so far of the necessitie of these two professions and generally of the use and disuse of the Civill and Ecclesiasticall Law in this Land and wherein it is overlaid by the Common-Law and how it may be relieved if it seeme good unto his Majestie and the wisedome of this Realme All which I have written not of any purpose to derogate from the credit of that Law under which I was borne and by which I hold that small maintenance that I have fo I reverence it as a necessary Law for this State and make such reckoning of every of the professours in his place as becommeth me but that it pitieth mee and not only mee but all those that tender good learning and have no prejudicate minde toward the Common-Law to see two such Noble Sciences as the Civill and Ecclesiasticall Law are so to be disgraced as that there is no more reckoning made of them or their professours than if they were matters and men of no worth and fit or apt for no service in the Common-wealth and yet notwithstanding the use of them is so necessarie as that the Common-wealth cannot want the service of them in matter of great importance to the State which if the profession should come to a downefall as it is like shortly to do if it be no more cherished and made of than it is will be sooner seene by the want of them than is now perceived by the having of them and then perhaps will the State lament for the losse of so goodly a profession when it will be hardly recovered againe as the children of Israel did for the tribe of Benjamin when they had in one dey slaine well nigh the whole number of them FINIS AN INDEX OF THE PRINCIpall Matters and Words contained in this Booke A ABbyes erected for good ends pag. 183. 184. but subverted for private 212 Absence from judgement hindereth not processe 58 Accessorie when to be determined where the principall 157. when not 232. what things to be accounted accessories 233 Acts of appropriations 202 Actions for things lent or pawned Of Ejectment Of Compensations Of Passengers Marriners Fathers Masters 7. Of Mandate Society Bargaine Change Restitution Vsurie 9. Popular 22. Exercitorie 89. Of Trover 128 which is prejudiciall to the Ecclesiasticall Law 130. 131. Actiones praejudiciales what 242. Of Diffamation where to be tryed 240 241. Administration when admitted in what order and when to be taken 13. Administrators false dealing with Legatories and how to bee remedyed vid. Executors Admiraltie 128 Pope Adrian restraineth the priviledge granted by Paschal 200 Adoption must be of such as are younger than the Adoptant 130 Adulterie what 22. how punished ibid. Advocates the necessitie of them 78. parallel'd with souldiers 101 Advonson what 196. how obtained ib. Aethelstane his law for Tythes 138. 139 Aimoine why silent in Charles Martels Sacriledge 166 Alcoran alloweth Tythes 175 Alienations not to be made for feare of suit 78 Almes-money what 139 K. Alured his grant to Churches 193. Inventour of Lanthorns 197 Apertura Feudi what 73 Apostles Canons of what authoritie 194 Appeales when admitted from whom by whom and when to be made 26. 55. 78. 79. 80 Appearance within what time to be made 24 Appropriation vid. Impropriation Aquinas
censured 204 Arbitrement what 79 Armes and the cases incident 99. how gotten 100. how to be borne 101 102 Armour by whom to be made 60 Artificers immunity from service 41 Auditors denied that immunity which professours enjoy 40 Aventines paines in compiling his Annals 169 Augustus why so called 108. his title to the Empire ib. Augustine the Monke 142 Avocation of causes inconvenient 131. 132 Aurum glebale what 45 Authenticks what 50. why so called ib. their contents seq B Baptisme how primitively administred 176 A Baptismall Church what 177 Barcinius the Collectour of the first Volume of the Decretals 75 Barren ground what 223. vid. Waste What ground to be accounted harren 224. Absolute and Comparative 223. how distinguished from Heath 225. Barren money what 224 Bastards by law those that are borne eleven moneths after the decease of the womans husband 55. severall sorts of Bastards 244. not to beare their Fathers Armes 245. nor to inherite ib. how they might be legitimated 146 Bastardie what 243. the effects thereof 245. to what jurisdiction the triall thereof belongeth 246 propounded either incidently 247. or principally 248. Generall bastardie defined ib. speciall defined 249. refuted 250. both of Ecclesiasticall cognisance 251. as is proved by severall precedents 251. 252 Battaill Abbey by whom founded and how endowed 190 Bawds how punishable 53 Benedict the first Founder of cloystered Monkes 187 Benefices how long they may be vacant 81. not to be impaired during the vacancie 82. some appropriated to Bishops and why 216 Bequests vid. Legacies Bertricks Will 194 Berytus the priviledges thereof 43 Bigamie 83 Bishops why so called 34. their power and jurisdiction 35. and degree 120. 121. place in Parliament 159. 160. their power in Ordination of Clerkes 57. in Consecration of Churches 191. 192. 193. seq Chappels 58. in Division of Church dues 154. in decision of controversies 54. in permission or prohibition of building Churches 191. and endowing them 194. and filling them 195. 196. seq their manners 51. 52. who to be elected 64. not hunters nor severe 85. to be resident 58. 65. not to be called before a temporall Iudge 65. nor deteine the Tythes of any Benefice by them founded 206. 207. nor passe them over to Lay men 208. in what cases they may hold them in fee. ib. their primitive endowments 209. 210. their different right in Tythes and demeanes 215. they somtime present at Patrons Wils 194 Bishop of Romes priority 66 Blasphemie capitall 59 Boniface the 8. Collectour of the second Volume of the Decretals 75 Border grounds 61 Boughes of great trees tytheable 229. 230. c. not accessories to the trees 233. Bounds of Parishes of Ecclesiasticall cognisance 151. vi Parish But of Bishopricks temporall 155 Brethren of the whole blood preferred before others 60 Briberie how punished 23 24 Burglarie how punished 21 Burners of houses how punished 19 C Cacus his fact 157. applyed 158 Canon Law what 73. divided 74. vid. Law Canons of Nice 153. of Antioch 154. of the Apostles questioned 194 Cardinals originall 152 Captives 27. feigned by the Law to be dead when they are taken 129 Cassiopea's new Starre 170 Castalia Castle-ward what 70 Castellians who 47 Censures to be judicially executed 85 Cessers for what instituted 44 Ceremonies used at the dedication of a Church 191 Chamberlaines place 46 Chancellours what 115 116. how they differ from Commissaries ib. their antiquity ib. Lord Chancellour why provided of Assessors 275 Changes of Church lands 57 Chappels how to be built 58 Charles Martel vid. Martel Children not to be punished so severely as men 85. after divorce how to be educated 62. their maintenance how it may be provided for 263 Chorepiscopi their office 153 154 Churches affinity with the Common-wealth 211. their priviledges 34 293. Prescription 62. building 65 66 not to be built without the consent of the Bishop 193. nor endowed 194. Manner of dedication 52. 191. their lands not to bee alienated 52. 54. 63. nor goods immoveable 56. nor vessels 64. yet may they be exchanged 57. at the Bishops disposall 193 194. Churches formerly both few and meane 197 Church dues how divided 153 154 Church peace-breakers how mulcted 178 Church-robbers curse 172. 173. the crime fatall to kingdomes 175 Church-shot 138 Circumstances considerable in punishing 99 Civilians disrespected 274 Civile Law vid. Law Pope Clement's sentence for the K. of Sicily 113. Clementines what 75 Clergies orders 54. most beneficiall to the Prince 186 Clerkes why so called 34. who to be admitted 65. where to pay for admittance 57. their behaviour and number 51 52 53. strictnesse of conversation 184. to be reverenced 117. not to hunt 85. nor to medle in civill affaires 82 their immunity 64. 66. how to be judged 60. by whom 65 Cloistered Monkes their originall 187. Priviledges 188 Clients compared to Sysiphus 132 Cnutes lawes 140 Code what why so called why compiled 31. how distinguished from the Digest 32. 33. contents s for whom most usefull 49 Cognisance Ecclesiasticall and Temporall 158. vid. Ecclesiasticall Collations the Sections of the Authenticks 50 Collectours of subsidies how to be punished for exacting 14. their office 38 Colours their dignitie in Armory 102 Combats permitted by the Common law 86 Commissaries what 116 Common-wealth allied to the Church 211. consistes of two parts 271. ruled by peace vid. warre ib. Competency to be allowed to the Minister 95. 196 Commutation of Church lands how formerly tolerated and how in the present age 210. 211 Confiscation in whole or in part 25. goods confiscate how to be disposed 37 Connexitie of causes not to be taken away 148. 157 Consecration of Churches with what ceremonies performed 191 Consent of parents requisite co the Marriage of Children 67 Consistories why granted 117 Constantines great bountie towards the Church 182. his law concerning Executors 267 Constantinoples priviledges 43 Consull what 45 Contracts Marine 88. 89 Contribution for ejectments 92 Controllers office 39 Controversies how decided 9 Corruptions in judgement how punished 20 Corses not to be prohibited buriall 6 Cozenage how punished 21 Councellours vid. Advocates Councels decrees as lawes 66. Councell of Nice 153. of Antioch 154. Lateran of Gangra and Antioch make Bishops disposers of Church goods 194. as also the Toletan Bracaran c. 195 Courts Spirituall abbridged of what they formerly have had 114. 115. 146. 147. why first granted 117. Court of Chancerie 275. of Requests 276 Crimes extraordinary 19. 20 Criminall matters triable in Ecclesiasticall Courts 48. 115 Crosse with what ceremonies set up in Churches 191. used for want of Churches 197 Curiositie of School-men prejudiciall to the Church 162. 202 Curse the More and the Lesse 172. The manner of Cursing 173. The forme of the generall Curse with Bell Booke and Candle 174 Customes of tything of Ecclesiasticall cognisance 147. 148 Cystercians exempted by the Pope â—00 but compelled by the Parliament to pay Tythes 143 D Damages why not cessed in cases of consultation 127. treble
the accidents 227 Titulus what 152 Treason what 22 Treasure found to whom it belongeth 38 Treasurer of the Chamber 47 Treaties betwixt Princes to be made by Civilians 96 Treble damage of Ecclesiasticall jurisdiction 156 Toll-gatherers exacting how to be punished 14 Trees when and why they may bee lopped by another than the owner 16. loppings of great trees tythable 229. cutting of another mans how to be punished 19. 231. Tribonian a famous Lawyer 32 Tribute 31 Actions of Trover what 128 Truce at sometimes more especially to be observed 78 Tumult how punished 19 Turves tythable 221. arguments to the contrary answered 222 Tutelage the severall kindes thereof 9 Tutors 9. how distinguished from Guardians 10. what required of them ibid. 59 Tythes matters of Ecclesiasticall Cognisance 138. 143. 148. and reall composition for them 201 202. by the Lawes of our Saxon Kings 138 139 140. c. How they stood after the Conquest 142 143. in what case triable in a Temporall Court 144. the forfeitures for non-payment 156 157 the curse therefore 172 173. their different State under the Law and Gospell 161. with the causes thereof 162. seq when they came in use among Christians 161. part of the Morall Law 163. 203. and how farre 205. the ground of the precept 180. first invaded by Charles Martell 164. and in imitation of him by others 169 170. allowed by Mahomet 175. and strictly exacted in Primitive times 173. 174. to bee payed to the Baptismall Church 176. 214. 215. the contrary why not reformed in the Lateran Councell 178 179. not to bee deteined by a Bishop though Founder of a Bâ—nefice 206. nor were his Primitive Endowments 209. of Mineralls due 217. of Turves 221. of boughes of great trees 229. If in no Parish to whom they belong 208. manner of tything how to bee understood 180. prescriptions against tythes 179. 206. 207. Immunitte from tythes why first granted to Religious Houses 188. wherein Religious Orders were exempted from paying tythes and of what things 200. many Lands pretended tyth-free by that exemption which are not 201 V In the Vacancy who anciently had the fruits 217 Valvasores majores minores who 73 Vassailes of of how many kindes 72. 73 Villages converted after Cities 215 S. Vincents Crow 170 Vniversities permitted the use of the Civile Law 87 88 Pope Urbans legantine 193 Vse of money 224 Vsurers infamous 42 Vsury the kindes of it 8. how much to be taken of a husband-man 55. ceaseth when it hath doubled the principall 64. is an accessorie to the principall 233. Sea usurie 62. greater then Land usurie and why 9 W Waste ground of Ecclesiasticall Cognisance 223. 224. seq Water courses not to be altered 16 Widowes how to distribute their goods 51. such as live riotously how provided for by the Civile Law 269 Wills vid. Testaments William the Conquerour his care for Church right 141. 142 Winchester Church how anciently endowed 199 Witnesses what manner of men 61. may bee compelled to appeare 79. how many required to a Will 134 135. of one man dangerous 136. false witnesses 24 Wives in what cases they may be beaten 62 Women in case of suretyship how to be releived 7. not endowed 57. may be Tutors 61 Wood taken for all kinde of fewell 223. great woods in what cases tyth-free 229. 230. and why 231. wood and timber how distinct ibid. Words diffamatory how punishable 236. vid. Diffamation Wrackes what and how to be disposed of 92 93. FINIS ERRATA PAg. 36. lin ult for reade from p. 38. 〈…〉 p. 107. l. 8. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 r. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 r. that p. 177. l. 24. capellas r. capella p. 191. l. ult in r. an 〈…〉 4. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 r. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 p. 212. l. 1. is r. it p. 224. l. 15. 〈…〉 r. out in these p. 231. l. 8. other secundum r. other but secundum p. ibid l. 9. but in that r. in that p. 233. l. 30. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 r. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉
validity of the Will it self the Legacies and devises therein whether they were of lands or tenements or of goods or chattels the Probate it selfe worketh nothing but leaveth that to the Law Common or Ecclesiasticall according as the bequest belongeth to either of them whether it be good vailable in Law or no for it oftentimes falleth out notwithstanding the Wil be lawfully proved before the Ordinary yet the bequests are not good either in respect of the person to whom the bequests are made or in respect of the thing that is not devisable in all or in part as by the Common Law lands in Capite cannot be devised more than for two parts but in Socage the devise is good for all and by the Custome of the Citie of London some other places of the Land a man can bequeath no more than his deaths part and if hee doe his bequest is void for the rest but in other places of the land a man may bequeath all By the Civile Law a man can bequeath nothing to a Traytor or an Heretick or an unlawfull Colledge or Company unlesse perhaps it be for the aliment or maintenance of them in extreame poverty that they die not for hunger which is the worke of charitie and if he doe the legacie thereof is void to all intents purposes So then the Probate of the Ordinarie in matters of land neither helpeth nor hindereth the right of the devise it selfe but is a declaration onely of the dead mans doome uttered before such such witnesses which taketh his strength not so much from the Probate as from the Law and is testified onely by the Probate that the same was declared by the Testator in the presence of the witnesses therein named to be his true and last Will. So that no man herein is to be offended with the Ordinary as presuming of a matter not appertaining unto him for his testification in all Law and conscience doth belong unto him to give allowance so farre unto the defuncts Will as it is avouched before him to be his last act deed in that behalfe but rather they are in this case to thanke the Ordinary that he by that act of his hath preserved the memorie of that which otherwise perhaps would have been lost and perished to the great hurt of the Common-wealth and others which have private interest therein CHAP. II. SECT 1. Of the Care that Princes of this Realm have had for the due payment of Tythes unto the Church and the preserving of the cognisance thereof unto the Ecclesiasticall Courts of this Land both before the Conquest and since OF all matters that appertaine to the Ecclesiasticall Courts there is no one thing that the Princes of this Land have made more carefull provision for since there was any Church government in this Land than that all maner of Tythes due by the word of God should bee fully and truely paid unto their Parish Churches where they grew and if they were denied should be recovered by the Law of the Church * The great pietie Princely care of our ancient Kings before the Coquest is worthily noted by the Authour and because it argueth the rare devotion of those times wee will consider it more perfectly About the seventh Centurie Ina King of the West Saxons made this Law 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 hpa 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ne 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is That the Church-sceat be paid in at Martlemas if any refuse to pay it that his penaltie be fortie shillings and the payment of Church-sceat twelve times That which the law here calleth Church-sceat according to the varietie of reading hath bin diversly interpreted Fleta as if it were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 readeth Church-seed and therefore he saith it was Certa mensura bladi Trâ—tics c. So the old Lawyer in Lambert fuit un certein de ble batu que chescun homme devoit en temps des Britons des Engles porter a lour Esglise le jour Seint Martin Others reade 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Churchescet that is the Church shot or Church due Which way soever we reade the word there will bee no great injurie done to the sense yet because other things besides Corne have gone under the name of Church-sceat as the Cocks Hennes at Christmas therefore it seemeth that the last reading is the best heere it must signifie a quantitie of Corne due to the Church and to be paid in at Martlemas Why these dues and others were tendred at this Feast Hospinian thinketh he hath given a good reason but see Gretser in his Booke de Festis upon S. Martins day In the ninth Centurie King AEthelstane made this Law Ic 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 callum minum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 calle mine 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 on 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nama 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mine 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 hi 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is I AEthelstane King by the advice of Wulfhelme my Archbishop and my other Bishops command all my Reves thorough all my Kingdome in the Lords name and of all Saints and for my love that in the first place they pay the Tythe of my owne revenues as well in living Cattell as the yearely fruites 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is And this to be done at the day of the beheading of S. Iohn the Baptist And that the Subject might the more earnestly intend the observation of this Law the King addeth a pious exhortation 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Iacob 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ic 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mine 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mine 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mâ—n 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 hi 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 eac 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 on 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 bocum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mid 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ecelic 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is Furthermore thinke wee with our Our selves what Iacob the High Father to the Lord said I will give thee my Tythe and my peace-offering And the Lord himselfe in the Gospel saith To all that have it shall be given and they shall abound We might also bethinke Our selves of the penaltie which is written in this booke that if wee will not pay our Tythes then the nine parts shall bee taken away and the tenth onely shall be left us And Gods Lore putteth us in minde that for these earthly things eternall are to be had and everlasting for the transitorie Thus the religious Prince goes on and earnestly pursues the argument in the Rhetorick of those times seeming to intimate to his people that though no humane Law had interposed it selfe yet the divine equitie of this cause might be eminently enforced out of sacred Writ King Edmund in a Synod holden at London at which was present 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Oda and Wulfstan
Archbishops and many other Bishops made this Law for holy Church 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 aelcum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 men be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is Wee command all Christian men by their Christianitie to pay Tythes Church-sceat and Almesfee if any refuse to doe it let him be accursed Concerning the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mentioned in the Law it was that Almes-money which was called the Peterpence for when Ina the West Saxon King went in pilgrimage to Rome he made it a Law to his Subjects that every house should pay a yearely pennie to the Pope this was to be tendred at S. Peters tyde as appeareth by Edgars Law num 4. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. See also the Lawes of Cnute and Edward the Confessour And whereas we finde the curse of Excommunication here annexed by the Law to this Sacriledge of with holding the Tenth it is not without a parallel for amongst those solemne Execrations which by a Councell held here at Oxford were to be openly pronounced foure severall times in every yeare wee finde these Church-robbers twice branded with Anathâ—ma In the first Article thus An they ben accursed the rightys of holy Chyrche as in Londys tenÌ„ts rent possessions maryces lesours pastours wayes pathes wetingly and vnyustyly or malycyously defoulen and with-holden councelen huyden or to with-hold or to avoyde procuren In the 26. Article in this manner Also all they ben accursed more lesse whiche wyttingly wylfully or malycyously and vnwysly for ony man hath had vttirly the Seruauntis of God that is to say their Persones Vicars Chapelyns Parrochyalys whatsoever condycyon that they ben or fame the thythes prouentys profytys oblacyons of custume and consuetude vsed lasse or more with-holden or done to bee with-holden or the sayed thythes or oblacyons chaungen or turnen in to other vse than it was prouyded in holy Chyrche law But of this see more Cap. 3. Sect. 2. In the Lawes of King Edgar it was decreed in the first place 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That Gods Church should have all her rights and that every man should pay his Tythes to the elder Minster or Mother-Church where hee heareth the Word cap. 2 of Edgars Lawes See also the 3. 4. Chapters In the Lawes of King Cnute cap. 8. thus it is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 eal 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈…〉 man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That a man must bee carefull rightly to pay Gods rights every yeare to wit the Plough-almes 15. nights after Easter and the Tythe of young Cattell by Whitsontide and the fruits of the Earth by Alhalgentide And if there bee any that will not pay his Tenth so as wee have said that is the tenth Acre according to the going of his plough then the Kings Reve and the Bishops and his that owes the land together with the Masse-priest of the Minster may goe and take away the tenth part whether he will or no and give it to the Minster whereunto it belongeth The ninth part hee may take to himselfe As for the eight parts let them be divided in two and let halfe goe to the Land-lord and halfe to the Bishop whether it bee one of the Kings men or a Thane Concerning the Plough-almes for which the Saxon saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lambard saith thus Ego me legisse memini in vetustissimo quodam legum Ethelreds Regis libello impositum tunc temporis in singula aratra denarium unum c. For first before the Conquest King Aethelstane made a Law that every man should pay his Tythes to God in manner as Jacob did who made a vow to God If God would bring him back againe to his Countrie hee would when hee returned home pay Tythes to God of all that God should give him the like did King Edgar and King Edmund commanding that those which wilfully refused to pay their Tythes should bee excommunicated William the Conquerour as Roger Hovenden reporteth in the 4. Hovenden part 2 cap De Decimis Ecclesiae yeare after his conquest having gotten some time of rest from war and setling of rebellious spirits who kicked at his government at home entred into a consideration of the well ordering of the Church Common-wealth by wholsome Lawes and therefore by the advise of his Councell he suÌ„moned all the great Prelates Potentates of this Land with twelve other sufficient men of every Shire experienced in the Lawes and customes of the Land that he might by them learne by what Lawes and customes the Land was governed before himself came to the Crown therof straitly charging commanding them upon his high displeasure they should make true report to him thereof without adding any thing therto or taking any thing therefro who beginning with the Lawes of holy Church because by it the King and his Throne are established among other Lawes and liberties of the Church recorded this for one which I will verbatim set downe in Latin as it is penned by the Authour De omni Annona decima garba est Deo reddita ideò reddenda See for this the lawes of Edward the Confessour num 8. 9. by whom this decree was first made and afterwards ratified by the Conquerour Si quis gregem Equarum habuerit pullum reddat decimum qui unam tantùm vel duas habuerit de singulis pullis singulos denarios praebeat Similiter qui plures Vaccas habuerit decimum vitulum qui unam vel duas de singulis vitulis singulos denarios qui caseum fecerit det decimum Deo etsi non fecerit lac decima die Similiter Agnum decimum Vellus decimum Butyrum decimum Porcellum decimum De Apibus verò similiter decimum commodi quinetiam de bosco de prato de aquis de molendinis parcis vivariis piscariis virgultis hortis negotiationibus omnibus rebus quas dederâ—t Dominus decima pars ei reddenda est qui novem partes simul cum decima largitur Et qui eam detinuerit per justitiam Episcopi Regis si necesse fuerit ad solutionem arguatur Haec enim S. Augustinus pradicavit docuit haec concessa sunt à Rege Baronibus populo Sed postea instinctu Diboli multi â—am detinuerunt Sacerdotes negligentes non curabant inire laborem ad perquirendas eas eò quòd sufficienter habebant vitae suae necessaria Multis enim locis medo sunt tres vel quatuor Ecclesâ—ae ubi tunc temporis una tantùm fuit sic caeperunt minui This Augustine to whom the Conquerour heere referreth himselfe was Augustine the Monke whom Gregorie the great about the yeare of our Lord God 569. sent heere
Church to an other and that the contrarie was yeelded to in the Lateran Councell was not that they held it lawfull to enrich one Church in this sort with the impoverishment of an other but the cause was the hardnesse of mens hearts who scarcely could be won by this favour to restore that little againe unto the Church that their forefathers had in such abundance taken away from it and that the Fathers of the said Councell did yeeld thereunto although it were an inconvenience thus to doe was for that they did count although they did admit that it might bee for the present yet there might bee a better time found out after for the reformation thereof and so sustained the inconvenience for the present upon this reason that the universall Church of Christ is one body and every particular Church a part of that body and so it lesse mattered to what particular Church they were restored so that they were restored at all for that by the restitution to one they hoped in time they might with more likelihood come unto the other for those things wherein there is an Identitie or like representation of Nature and Condition as is betweene Church and Church have an easier passage the one from the other than those that are of different nature and disposition as a lay man and a Church SECT 3. That out of that violent Prescription many other Prescriptions arose but of lesse moment OUt of the ruines of this violent and presumptious prescription which have now obtained strength of a Statute in the world have issued out sundry petty Prescriptions which also are confirmed by law and custome as the other were as the Prescription wherein one Church prescribeth Tythes against an other Church the Law punishing therein the negligence of the one and rewardeth the vigilancie of the other Prescriptions wherein one Ecclesiasticall body corporate or politique prescribeth Tythes or other Ecclesiasticall duties against the Parson or Vicar of the Parish and the Parson and Vicar againe against them A Prescription whereby a Lay man having no right to prescribe Tythes because hee can in no right possesse Tythes Regul sine possessione de regulis juris in 6. and prescription cannot proceede without possession doth notwithstanding by pernancie or giving some part of his ground or pension in money in lieu thereof prescribe a discharge thereof A prescription wherein a Lay man doth prescribe the manner of Tything which albeit by the Common Law is counted to be good by paying a thing never so small in lieu thereof yet neither by the Canon Law neither by the Law of God it selfe could it ever be lesse than the just tenth it selfe so that the manner of Tything with them is not understood in that sence as the Common Lawyers doe take it by paying any thing whatsoever in place of the just tenth but their intendment hereby is that no countrey can bee bound to an uniformitie of payment of Tythes to bee used every where but every man is Linwod Provin quaniam verbo uniformis in Glo. de decim to pay Tythes according to the manner of the Countrey where hee dwels that is that one payes his Tythe-corne and bindes up the same in sheaves an other leaves it scattered in the furrowes an other tythes it in Cocks or Pookes and this is it that they meane that there cannot be an uniformitie of Tything prescribed to every man after which he is of necessitie to set out his Tythe but that he may prescribe some other manner of Tything against the Parson or Vicar but against that uniformitie that the whole Tythe Eod verbo consuetudines should not be paid was never any prescription allowed among them for they evermore have beene of this minde contrary to that which the Schoolemen bold that Tythes are part of the Morall Law and not of the udiciall or Ceremoniall Law and that in the Precept of Tythes there is a Cap. Ã nobis de Decimas in Glos. double consideration one of the honour of God whereby he retained tythes unto himselfe in signe of his universall Lordship over the whole world which is irremissable the other of the profit or utilitie of man in that it concernes the provision of the Minister in all ages which is undispensable SECT 4. That Ecclesiasticall Judges admit pleas in discharge of tythes and the manner of tything contrarie to the conceit that is had of them ANd yet notwithstanding all this the Ecclesiasticall Judge admitteth all kinds of prescriptions before-named and according to the proofes thereon brought giveth sentence either to absolution or condemnation albeit the Reverent Judges of the Land upon an erroneous report made in the eight yeare of Edward the fourth have a conceit to the contrarie viz. That no Ecclesiasticall Judge will admit any Plea in discharge of Tythe or the manner of Tything as it is in their sense taken and therefore they hold whatsoever the Defendant doth alledge in his suite for a consultation and namely that the Ecclesiasticall Judge did allow of the Plaintifes Plea and allegation and did admit him to the proofes thereon without deniall are idle speeches rather words of course than of effect and substance And therefore notwithstanding whatsoever is alledged by the Defendant as concerning the Ecclesiasticall Judges well acceptance thereof it is counted nothing materiall by the Temporall Judges for that they have a prejudicate opinion of the Ecclesiasticall Judge in these cases and therefore howsoever the refusal be or be not they grant out their Prohibition in these cases And yet if the Judges Ecclesiasticall proceedings might be seene and vouchsafed to be read before them it would bee plaine there was no such cause of their hard opinion against them for every where they doe allow such and like allegations And if perhaps one inferiour Judge should make refusall as they pretend yet could it not bee reformed by an other in an ordinarie course of appeale but that there must needs be brought a Prohibition out of the Common Law to redresse the same unlesse happely they can shew it is a generall conspiracie in the Ecclesiasticall Judges or a Maxime in their learning that they will not or cannot admit any Plea of discharge in this case which they can never doe And therefore they are to be in treated to change their opinion in this point and not doe the Ecclesiasticall Judges that wrong as to charge them with such an imputation whereof their whole practice is witnesse to the contrarie for it is unworthy such mens gravitie as theirs is who propound unto themselves the inquirie of the truth in all matters thus to be misconceived and masked in an errour and that for so many yeares and not to be willing to heare the contrarie which is an obstinacie in policie no lesse obdurate than the Papists is in Religion who see the truth and will not beleeve it And so farre as concerning Prescriptions and the first cause and
beginning thereof CHAP. IV. SECT 1. Of Priviledges and how they came in and that by reason of the frequence of Priviledges Statutes of Mortmaine came in NOw it followeth that I speak of Priviledges which are immunities granted unto private men beside the Law Of these some are very ancient such as true zeale toward the Church bred and the just admiration of the holy men of God for their sanctimonie of life their great knowledge in the word of God their great parience in persecution for Christ and his Gospel the vigilancie and care they had in their Office stirred up both in Prince and People So Constantine the great being ravished with the love of Religion and the good opinion hee had of the Ministers of his time erected Churches and endowed them with large possessions and granted 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 hee this alone in his owne person but hee also gave leave to all other of his Subjects that would doe the like L. 1. c. de sacros Ecclesus §. Sâ— quis authent de Ecclesia whereupon the Church was so enriched within a short time that as Moses in the building of the Arke was faine to make a Proclamation that 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 thirteenth Emperour after Constantine although otherwise a most loving and favourable Prince towards the Church was faine to make a Law of Amortisation or Mortmaine to moderate the peoples bountie towards the Church as did also many wise Princes in other Nations upon like occasion and in imitation of this Act of Theodosius many yeares after and among the rest divers Princes of this Land did the like upon the dotage of the people towards the Religious Parsons and specially towards the foure Orders of Priers that were then newly sprung up in the world But yet this Act of Theodosius was Magâ—a Chartâ— cap 56. W. 2. c. 3. 1. an 13. Ed. 1 done with the great dislike of these blessed men Jerome and Ambrose who lived in those dayes for that Jerome thus complayneth to Nepotian of that Law I am ashamed to say it the Priests of Idols Stage-players Coach men and common Harlots are made capable of Inheritance and receive Legacies onely Ministers of the Gospel and Monkes are barred Concerning this see what Peckius saith in his Booke De Amortizatione Bonorum ca. 6. by Law thus to doe and that not by Persecuters but by Christian Princes neither doe I complaine of the Law but I am sorie wee have desorved to have such a Law made against us In like manner and upon the same occasion doth Ambrose deplore the state of the Clergie in his 31. Epistle Wee count it saith hee no injurie in that it is a losse wee are not grieved that all sorts of men are made capable of Wils none excepted how base prophane or lavish of his life or honestie soever hee be but I am sorie that the Clergie men onely of all sorts of people are barr'd the benefit of the Law that is common to all who notwithstanding onely pray for all and doe the common celebration of the Service for all So farre they †Notwithstanding the ill opinion which in these dayes is not without cause conceived of the ancient Albyes and Frteries yet it must not bee beleeved but that these Religious-houses in the old and true intent were purposed onely for pietie and for such a practise thereof which the soule might freely enjoy while it was so set at libertie from the inquietude and avocations of the over-active world Therefore some of the most grave and learned Fathers of the Church retired themselves to this divine and peacefull solitude and the profitable and profound writings which yet remaine sufficiently testifie how well the Monkes of old could spend their times What strict devotion and unblameable carriage the ancient Princes of this Land have expected from their holy men of this kinde may be understood by the Law made in the dayes of King Cnute Num. 6. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 men 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 aelc 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mynecena 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 on helle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 habbe he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is And wee will that every man of every degree doe earnestly follow that Right which to him belongeth especially Gods Ministers the Bishops Abbots Monkes Votaries Canons and Nunnes that they take a right course and live according to Rule that they call to Christ night and day much and oft and that they doe it earnestly for all Christen folke And wee command and teach all Gods Ministers especially Priests that they hearken to God and love Chastitie that they may deliver themselves from Gods ire and from the tormenting flames that burne in hell Full truely they wit that it is against the Right to medle with women for lusts sake And those that will abstaine from these things and cleannesse hold they shall have Gods mercie and in worldly worship they shall have equall Right with a Noble man It seemeth also by an Arabick Canon of the first Nicene Councell what great strictnesse and severitie of life was required of these holy Orders for the Canon saith that they might not carrie about them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a paire of knives as if they were quarelling fellowes going out to fight and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 kill c. That they might not hang a purse at their girdle c. And that they might not seale a letter with a golden or silver Seale c. And moreover that they might not walke in the Streets or Allyes but in a most grave and sober manner c. as it is set downe in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the 80. Canon of the fore-named Arabick Councell according to the Manuscript Copie The great estimation that was had of these holy Men enforced such an immoderate charitie in deuout minds that they obtained most especiall Priviledges Exemptions and no man thought any thing too good or too much to bestow upon a Monasterie But two great inconveniences followed upon the confluence of these large and ample endowments one was the luxuriant demeanour of these Religious Orders degenerating from their old sanctimonie This is noted and provided against by the Novell of Nicephorus about the yeare 963. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is But now perceiving among the Monasteries and Religious Houses a notable