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
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
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
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
punished which being put in trust to measure any mans ground makes a false report of the measure thereof that no man hinder a corse of a dead body to be carried to buriall or to be buried in such places as hee and his predecessours have right unto or to build a Tombe to that purpose and beautifie the same SECT 5. That the third part stretcheth it selfe into nine bookes and what they contein THe third part imbracing nine books concerneth personall actions which rise not of cause of right or possession but of covenant and obligation as things credited or lent in a certain summe the means how to recover the same if it be denied that is by oath of the partie that denieth it unlesse he may be convicted either by witnesse or instrument that he hath forsworne himselfe how many kinds of oaths there are voluntary out of Judgement necessarie exacted by the Judge in doubtfull cases where otherwise there wanteth proofe to manifest the trueth Judiciall such as one partie offereth to another in Judgement and cannot be refused without just cause and lastly that which the Judge offereth to the plaintife as concerning the value of the thing which is in strife or the charges that he hath beene at in recovering of the same what exceptions there lyes against Obligations as that which for cause was given and cause did not follow that the cause was dishonest for which that is challenged that was given that the summe was not due which was paid and therefore not to be exacted but to be repaid actions for things lent for a certain time and to a certain use actions for things pawned actions that either passengers have against Marriners for the goods or ware that they have brought into the ship or Marriners have against Passengers for their fraught actions of ejectment wherein the passengers and Marriners are bound each to other for contribution of the losses of such things that have beene cast into the sea in the time of a storme or tempest according to the qualitie or quantitie of the goods they have in the ship actions whereby masters are bound to answer for their servants contracts and fathers for their children in such things or negotiation as they have put them in trust withall saving where the childe borrowed money without his fathers privitie for riot and for such purpose as his father hath no use thereof Remedies for women when by weaknesse of their sexes and lack of counsell they have inwrapt themselves in suretiship for other men action of compensation where a debt is demanded for which an equivalent portion hath beene received in lieu or satisfaction thereof actions of mandate or commandement wherein one hath done some worke or laid out some money upon an other mans mandate or word and yet when he requireth allowance thereof it is denied him actions of societie or fellowship wherein either the societie is required to be maintained or the money put in common banck to be divided actions of bargain and sale either pure or conditionall the bargain being once made the losse and gaine that after happeneth is the buyers unlesse the seller retain some further right in the thing sold unto himselfe actions of letting or setting either of the use of a person or the use of a thing upon a certain hyer actions of change and such like SECT 6. That the fourth part conteineth eight bookes and the contents thereof THe fourth part being digested into eight bookes ministreth actions for such things as are accessarie to contracts such as pawnes and pledges are which are given for the better securitie of the contract actions for restitution wherein a man hath beene deceived in a bargain more than the halfe value of the thing sold or wherein the seller hath concealed some fault in the thing sold which he ought by Law to have revealed or promised some qualitie in the same which was not in it or where the thing sold hath beene evicted by an other out of the hands of the buyer himselfe using all just defence of Law for himselfe actions for interest and usurie and how many kinds thereof there be that men use by land Lucratory Compensatorie and Punitorie whereof the first is altogether unlawfull the other two allowed where either just gain ceaseth or just losse followeth upon that occasion that which is lent is not payd according to the day of covenant Sea-usurie otherwise called nautick usurie is greater than land-usurie and yet allowed by Law for that the seafaring man takes upon himselfe the danger of the transporting thereof and securing the same at such place as it is appointed to be delivered In deciding of matters of controversie the Law proceeds somtimes by witnesses somtimes by instruments somtimes by presumptions where knowledge or ignorance of fact or Law is presumed Spousals are mutuall promises of a future marriage marriage is a lawfull coupling together of man and woman the company and societie of the whole life the Communion of all Divine and humane rites and things and of one and the same house wrought by the consent and mutuall good will of the one towards the other in elpousals and marriages is to be considered who is to be joyned together at what years and by whose consent there doth wait and attend upon Marriages Jointures Dowries and such like and sometimes Divorce which Divorce what and why so called is so called of the diversitie of the mindes of those that are married because such as are divorced goe one a divers way from the other The causes whereupon Divorces The causes of Divorces grow are Adultery deadly hatred one toward an other intolerable cruelty neernesse of kinred and affinitie in degrees forbidden impotencie on the one side or the other actions of Dowrie after divorce or separation actions against a mans wife imbeaselling away his goods actions against a husband disclayming his owne childe and his wife being with childe if he make doubt thereof means how and where she shall be kept untill her delivery so that no false birth shall be put in place of the true childe or that she abuse not her husband or the next heire with a false shew of that which is not Tutelage government of children under age which is either testamentarie or due to the next of kinne or dative all which are either to be confirmed or disposed of by the Magistrate Administrations of Tutors and Curators and how farre they are endangered by their office and wherein they are to interpose their authoritie and consent and for what acts the pupils or minors may be sued done by the tutors or curators how any may be argued to be a suspected tutor or curator and how and by whom he may be removed if there appear just cause of suspition against him A tutor is chiefly set over the person of the childe secondly over his goods but the Curator or Guardian is chiefly set over the goods and then over the person of the
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
are taken away and possessions maintained by exceptions prescriptions and prejudices which themselves are many times in steed of actions as is the exception de re indicata which is an exception that determineth the cause in controversie Of Exceptions some are perpetuall and Exceptions peremptory some are temporall and dilatory Perpetuall and peremptory are they which evermore have place and can never be avoyded Temporall and dilatory are they which are not evermore in place but may be avoyded Exceptions are alleaged either because that is done which ought to be done or that is done that ought not to be done or that is not done that ought to be done Of Praescriptions Praescriptions likewise some are perpetuall some temporall the effect of either of them is to determine the action either in the maner of doing or by the time when it was done or by the place where it was done or by some other like circumstance An Obligation is a bond of the Law whereby a man is Obligations necessarily bound to pay some thing to an other man Obligations arise either out of bargains betweene man man or out of some offence that is done Obligations by bargains are procured either by some thing that passeth betweene the parties that doe contract or else is effected by words or consent Out of obligations spring actions which are nothing else but a right to prosecute that in judgment which a man pretendeth to be due unto him whereof there are two sorts of which one is a challenge for right of a thing due the other a suite against a person for some offence or trespasse done SECT 9. That the seventh part is divided into six bookes and the matter thereof THe seventh and last part being divided into sixe Bookes treateth of Obligations which stand in words and their effect how farre two or more principall debtors are bound to the creditor in the whole or every one for his owne part Of Suerties and how farre they are bound and whether the discharge of the one be the release of the other and by how many wayes Obligations by words are dissolved or released by renovation by payment by acceptation of the debt not paid as if it were paid Of Obligations some are Civile as those which have beene heretofore handled some Pretorian or pertaining to the Chancery as those whereby Tutors Curators and Proctors enter into band unto a child that his state shall be safe that is committed to their hands That that shall be paid which the Judge ceaseth That the Plaintife shall ratifie and allow that which his Proctor shall doe for him in judgement and such like Criminall Judgements are private or publick that is they are commenced either upon private offences or upon publick faults and suits Private offences concerne private mens revenge and injuries Publick the revenge or injurie of the whole state Private offences which had ordinary proceedings and ordinary punishment were many among whcih Private offences Theft is the chiefest which is a deceitfull fingering of an other mans goods with intent to gain either the thing it selfe or the use or possession thereof so that the mind alone maketh not theft but the act joyned to the minde be the quantity never so small Of Thefts some are manifest other not manifest manifest is that wherein the offender is taken in the deede doing or taken before he could carrie away the thing stolne thither whither he intended the punishment whereof was foure double the value of that which was stolne Not manifest was that wherein the party offending was not taken in the deede doing and the pain thereof was the double of that which was purloyned or taken away If any pilfery or theft be done in a Ship Taverne or Inne the Master of the Ship Taverne or Inne is to answer double the value thereof if the same be done by himselfe or their selves or any of their marriners or servants for it behoveth them to have honest men whom they are to imploy in such services But if it be done by any of the passengers or guests of the house the owners of the Ship Taverne or Iune are not to answer for the same for they cannot turne away such guests as come into their house neither in all likelihood know they the quality or condition of their guests If any man privily unwitting the owner thereof cut downe hack or barke any tree of any sort whatsoever or those that are of the nature of trees as Ivie Reedes Willows so that they be spoyled hee is to answer the double value of that hee hath cut downe and spoyled and further if it be a Vine-tree to be punished as a robber Hee that taketh any thing away from another by violence is to be punished in the worth foure fold for that it is a sin more grievous than theft If any man upon any ill intent make a Tumult whereby any hurt commeth to any man he shall anser double of that the party is harmed in If any upon a burning of a house or the fall thereof or upon a shipwrack or the spoyling of a boat or ship steale any thing away or being put in trust to keepe any thing thereof conceale the same hee shall pay the foure double of the same but if any man set the same afire himselfe he is either to be cast out to wilde beasts or is to be burnt with the same fire he went about to burne an other with If any have spitefully contumeliously injured an other man his wife or children in deede word or writing they are to forfeit so much as the partie greeved shall esteeme himselfe injured by or the Judge shall taxe it at A famous Libell is where a Libell what man hath of malitious purpose writ compounded or set out any thing to the infamie of an other without a name or with a name and the punishment thereof is death and anciently was that he lost the power or liberty to make a Will the like punishment followeth him that having found an infamous Libell doth not by and by spoyle the same that the knowledge thereof come not abroad especially where the matter thereof is capitall or worthy death Extraordinary crimes are those which have no ordinary Extraordinary Crimes punishment appointed them but are arbitrarie at the Judges appointment such as are Sollicitors of other folkes wedlockes and Maids chastities although they misse of their purpose such as of purpose cast myre durt or any like filth upon another to the intent to disgrace him such as being with childe of purpose cause themselves to miscarry Such as keepe brothell and baudy-houses or other unlawfull company Juglers and such as carry about Snakes and other like Serpents and trumpery to put men in feare Such as hide and suppresse Corne to cause the price to be dearer Such as either make or use false weights wittingly for all which because there is no proper punishment provided in the Law
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
estre inhunâ—e le ventre la face contre terre pour l'expiation des pechés de son Pere hee would bee interred with his face and belly downward to expiate his Fathers transâ—ressions as Dupleix also was contented to observe and it is to be found in the Antiquities of France Therefore Charles Martels Sacriledge in generall must be granted But it hath beene also constantly received that in particular this Charles defrauded the Church of her Tythes as hath beene said But this passage of the Storie hath found some opposition One of the first that ever shewed himselfe an adversarie to this opinion was Stephen Pasquier a man whom though wee forsake in this particular yet wee may safely commend for his varietie of learning otherwise an ample testimonie whereof he hath given in his Booke De Recherches de la France saving that hee cannot be pardoned for his haâ—sh and â—â—vious minde towards the dignitie and Jurisdiction of the Clergie which discovereth it selfe in severall passages of his third Booke In the same Booke Chapt. 35. which is Des Dismes Infeodees Concerning the Infeudation of Tythes he adventureth to overthrow the received opinion The maine reason hee urgeth as farre as I conceive him is for that those who first and anciently wrote the Historie of their Kings or otherwise tooke notice of the acts of Charles doe not accuse him of any such Infeudations But to this I suppose some answer may be conceived in this manner The principall Historiographer of whom wee are to consider in this case must bee Aimoine who wrote the Storie of the French Kings and what was delivered in his Chronicle concerning the times wee aime at for the most part made up the Bookes of those Writers that succeeded for some certaine centuries of yeares This Aimoine Stephen saith maketh no mention of that Act of Martel 't is true neither maketh he mention of any Sacriledge at all no not so much as Stephen himselfe and all Writers beleeve that Martel was guilty of And I should wonder if hee had for Aimoine lived in the time of Charles the great and what he wrote concerning him and his ancestours hee received from Autmare Chaplaine to the same Charles and this is too neere the time of Martel for a true Historian Indeede the lives of pious Princes may be written before their deaths and if there happen an unworthy passage it is not corrected in their Storie but their Conversation But when a great King proves not good his first Historians must be worse for no Subject may dare to write what such a Soveraigne could commit And therefore if an ill Act occurre the Historian must dissemble or defend it for what e're be after thought of great mens actions yet when they are newly done either they must not be mentioned or if they be they must be magnified Therefore Autmare who depended upon Charles the Great must not tell such tales of his Grandfather And for this cause it is that when Aimoine speakes of Martel he styles him virum sagacissimum and virum egregium adding moreover that his atchievements were accomplished Christo in omnibus praeside See lib. 4. c. 57. where also relating his victories he compareth the siege of Avignon to that of Iericho as if Charles had march't on like those great Commanders of Israel and the wals of Avignon had fallen downe like those of Iericho at the very sound of Martels Trumpets Thus Aimoine observes the time hee lives in So Boniface Archbishop of Mentz in Martels dayes though perhaps hee could have said more than hee did if that be not enough which hee hath said that this Charles was Ecclesiasticarum pecunâ—arum inproprios usus commutator yet that which hee did say seemeth to have beene no otherwise publickly knowne than in an Epistle of his to Ethelbald one of our Mercian Kings a fragment whereof is inserted into the Storie of this Ethelbald by William of Malmsebury but in other Copies of this Epistle the clause which concernes Martel occurres not for of late dayes by the great industrie of Serarius we come to see a volume of that Archbishops Epistles the nineteenth whereof is that which was directed to Ethelbald But there the passage of Martel cannot be found And the truth must be that if Boniface have any such thing to say of Charles hee must send it farre enough for it might not bee told at home That which hath beene said may passe for a reason why so great a crime of Martel was not so publickly recorded till time could weare out the danger and the Historian could write the Act with as much confidence and securitie as Martel did it Therefore it is that though the Writers began betimes to touch at his impietie yet they struck not at this master piece but by degrees Paulus AEmilius a diligent Writer and one that spent 30. yeares to compile the French Storie seemeth even in those dayes to report this timorously as if it had beene then too soone to give a just account of this Sacriledge For when hee commeth to Charles Martel hee saith that there passed upon him a diverse rumour For some gave out Eum omnium Ducum Imperatorúmque gloriam transcendisse that hee had transcended the renounce of all Kings and Captaines that ever were before him Others reported that hee onely seem'd to doe so in the eyes of ordinarie men and that hee had decumarum sacrum juâ— militaribus viris attribuisse given over the divine right of Tythes to his militarie men But it is necessarie for the Reader to observe that the Authors of the first report were as Paul saith Summi viri great men but those that related the second were Sancti viri good men And the first sort may but the latter ought to be beleeved But wee shall finde this matter more confidently related by the French Historians who spare not to set it downe plainely and ingeniously though it concerne their Storie more than others that this Martel should be blamelesse An ancient Chronicle of theirs Le Rozier Historial de France part 2 concerning this passage saith thus Par le conseil des Euesques luy furent donnâ—z les dismes de Eglises pour gaiger ses cheualiers qu'il promist rendre faire de plus grans bien a l'Eglise s'il viveit longuement Fol. 21. hee saith That Charles did bestow the Church Tythes upon his Knights and that he promised to restore them againe and much more but this must be s'il vivoit longuement if hee liv'd long enough How long Charles would have lived to doe this I know not but that he lived not so long as to see it done wee are sure enough The like is reported concerning this passage by Nich. Giles but because this Author hath beene corrected and enlarged by Belleforest wee shall use his words and they are these Pour fournir aux fraits dispenses qu'il convenoit faire pour lesdictes guerres que ledict Charles Martel avoit contre
restore them restore them to the Churches from whence they were taken which had beene most agreeable to the ordinance of the Church set down by Dionysius who first devided Parishes and assigned unto them Tythes as hath beene aforesaid and also to the Scripture it selfe Deut. 18. from whence Dionysius tooke his light to divide Parishes and dispose of Tythes as hee did by which it was not lawfull for him that paid his Tythes to pay them to what Priest or Levite Thus much we have set downe concerning the Generall Curse not hoping to fright any man into devotion with this black Sentence or to propose such distempered pietie for an example but that it might bee considered how horrible a crime it was in our Forefathers account to rob the Church in the least particular And indeed they conceived no more hope of a man that died under this Damnosum Theta than of him that dyed in a mortall sinne nay much lesse for the Canterbury Booke saith that many Clerkes preuen at the day of dumme wuld our Lady Saint Mary and Saint John Baptist and all Saints that bene in heauen knele downe at once before the blessed face of Almightye God they shulen not in that tyme thorowe the prayer of them all deliver the Soule of man or woman that dyeth in deadly sinne c. And if the day of dumme shall be so heard to all thoe that dyen in any deadly synne by all reason full myche harder shall it be at that tyme with all those that bee founden openly cursed of God and of holy Church c. Thus we see what furies followed this Sacriledge in the opinion of our Forefathers who were so confident that a Church-robber could not escape the Judgement of God that they delivered him over to Satan or as they say cursed him with the More and with the Lesse Curse with Bell Booke and Candle The Clergie of the present time gives better language than thus what cause they may have I will not say It may bee accounted for wisdome that their injuries cannot bee judged by their clamours yet the Ages to come must not say that these things were done Nobis dormientibus The experience of the Emperours Charles the Great and Lewis the Godly would be noted to this purpose out of their Capitulars Novimus say they multa Regna Reges eorum propterea cecidissè quia Ecclesias spolia verunt résque earum vastaverunt abstulerunt alienaverunt vel diripuerunt Episcopisque Sacerdotibus atque quod magis est Ecclesus eorum abstulerunt pugnantibus dederunt quapiopter nec fortes in bello nec in fide stabiles fuerunt nec victores extiterunt sed terga multi vulneratt 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 plures interfects vexterunt regnaque regionem quod peâ—us est regna coelesta perdiderunt atque proprus haereditatibus caruerunt hactenus carent So they in the 7. Book of the Capâ—â—ul c. 104. fol. 214. Edit Paris 1603. Whereas the Capitular attributeth those grand enormities their ill successe to the Kings of that time it is not now to be so understood Farre be it ever from us to thinke otherwise than divinely of these our most Religious Princes by whose gratious protection the Church hath bin of late so miraculously blest As for others among us they may apply this to themselves as they shall be troubled with cause and occasion The great Impostor in his Alcoran though he cozened all the world besides yet he would not defraud the Church De Decimis sume saith he inde secundum morem consuetum operare Inscus te subtrahe semper So our Robert of Reading translateth But hee that reades Roberts Translation must not alwayes thinke he reades he Alcoran The Prophets owne text is in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Surato laaraph which in our manuscript Alcorans is the 8. c. the 17. in Roberts Translation 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is Give command concerning Tythes and beware of Clownes the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 may bee otherwise understood but if this were not Mahumet's meaning the matter is not great for we have better Prophets to preach this Doctrine him liked but hee must pay them to the Priest or Levite that dwelt in the place where himselfe made his abode but yet this libertie that was given them by the Councell then gave cause unto the errour that the Common Lawyers hold at this day not knowing the ancient proceedings of the Church in these cases that before the Lateran Councell it was lawfull for every man to give his Tythes to what Church he would which was so farre otherwise as that before this violence offered unto the Church there was a flat Canon more ancient than the fact of Charles Leo 4. 13. 9. 1 c. Eccl. Martellus which did precisely forbid any man to pay or a Bishop to give leave to any man to pay his Tythes from the * The Rites of Baptisme in the primitive times were performed in Rivers and Fountaines where the persons to be baptized stood up and received that Sacrament therefore it is that the Sonne of Azalkefat in the Arabick Gospels useth the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Amada to baptize which word also beareth the same sense in the Syriack and is often mentioned by Patriarch Severus in his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Order of baptizing the Saints The reason in both Dialects is the same for that the word Amada is by the Syrians and Arabians derived from the Hebrew Amad which signifieth to stand up This manner of baptizing the ancient Church entertained from the example of our Saviour who baptized Iohn in Iordan And some say that this was very tolerable in those Easterne parts but certaine it is that it was most coÌ„venient for that time because their Converts were many and men of yeares A reason also may be for that those ages were otherwise unprovided of Fonts and such conveniences which are now in use and this hath beene a cause why this manner of baptizing was resum'd in after-times and other places for our venerable Bede telleth us of some that were baptized heere in England in the River Swale which runneth through a part of Yorkeshire in the North Riding and hee giveth the same reason Nondum enim Oratoria vel Baptisteria in ipso exordio nascentis thi Ecclesia poterant adificari Ecclesiast hist lib. 2. cap. 14. The dayes we now live in have no other remainder of this Rite of Baptizing in Rivers and Fountaines than the very name for hence it is that wee call our vessels that containe the water of Baptisme Fonts or Fountaines This custome of Baptizing in Rivers and Fountaines being discontinued Fonts were erected in private houses but the violent persecutions of those times barr'd the Christians of that convenience therefore their next recourse was to woods and devious places and there they accommodated themselves with such Baptisterials as they could In more
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 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉
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
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
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