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
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
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
else but robberie and bloud-shed or they are so termed of the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is of their wandring up and downe and resting in no place but coasting hither and thither to doe mischiefe A Pirate is a Sea-thiefe who for to enrich himselfe either by subtilty or open force setteth upon Merchants and others trading by sea ever spoyling them of their loading if they get the upper hand and somtimes bereaving them of their life and sinking of their ships The proceeding of these Criminall matters is by accusation and information and after by triall of twelve men upon the evidence according to the lawes of this land and the lawes of the ancient Feudes of Lombardie where the like triall is and from whence it seemeth this of ours was first derived But here must wee note that matters of reprisals are no piracies although many times there fals out no lesse outrage in them for spoyling and slaying of men than doth in the other for that Reprisals are done by the Princes commission granted to the subject for redresse of some injurie done to himselfe or his subject by some other forreine Prince or subject and amends hath beene required by law and cannot be had whereupon licence is given to the subiect to releeve himselfe by what way he can against the other Prince or any of his subiects by taking so much goods of his as himselfe was indamaged which course is held among Princes the rather to afford Justice where it is lawfully demanded Bartol l. nullus num 2. C. de Judeis Coelicolis SECT 4. That the things which extraordinarily belong unto the Cognisance of the Civile Law are of three sorts and concerning the first which respecteth treaties betweene Prince and Prince ANd thus much of the causes which ordinarily doe belong unto the Cognisance of the Civile Law within this land Now it followeth that I speake somewhat of those things wherein the Civile Law dealeth incidently and by authoritie of the Prince is not the ordinarie object of the Civile law howsoever otherwise they cannot be handsomly dealt in but by such as have the skill of the Civile Law Whereof there be three sorts the first is matters of forrein treatie betweene one Prince and another the second is the ordering of martiall causes whether they be Civile or Criminall in an Army the last is the Judgements of Ensignes and Armes and the decisions for challenges of rights of Honour and precedencie where any of them is in controversie For the first whereas all other Nations in compasse round about us be governed by the Civile Law and treaties are to be decided by Law both for those things which are in question and to be concluded by Law and for those things which are determined by consultation and agreed upon who is thereto to be chosen rather than a Civilian to whom their law is knowne as well as to themselves and if perhaps he understand not their language yet hee understandeth that language wherein the lawes themselves are written and is the fittest tongue for treatises betweene Princes and Princes because it is a common tongue to the learned of all the West part of the world and thereby every Prince shall reteine his owne Majestie in parlying as it were in his owne language and not be forced to speake in an other Princes tongue which no doubt is a great disadvantage to him that shall treat for that every Nation hath some proper Idiom not so well discerned by the booke-speaker as perceived by the Natives of the countrey where it is spoken and wherein a stranger may easily be deceived How much forreine Princes doe esteeme of the skill of a Civilian in these matters it may be understood thereby that they never for the most part send any Embassage for the treatie of any league or matter of commerce but that one or moe of them are Civilians And if the care of these things be so great with them surely the estimation of the same ought not to be light with us for by what lawes their leagues and negotiations use to bee directed by the same must ours bee ordered so that for that point one kinde of learning must serve for both for that otherwise one Nation will not be convinced by the other what their capitulations are Surely such as over and besides their owne experience have the knowledge of the Civill Law have herein a double helpe above another man that wanteth the same First their owne understanding which for the most part is of like proportion as other folks is Then the skill of the Lawes themselves which are a quintessence of wit above other humane learning and were either wholly composed of the mature and deliberate resolutions of such Emperours as then swayed the whole world or were the doomes judgments of such wise men as then managed the whole world and the affaires thereof under them But who when hee seeth a sword in it's scaberd knoweth whether it will cut or not although the forme thereof be a presumption that it will but doe but draw it out of the scaberd and try the blade thereof and then shall you see the sharpenesse of it I make no application hereof for that my meaning by my words may be well enough knowne But in these matters the wisdome of the State knowes best what is to be done and I onely remember what other Nations doe leaving the rest to their gravest considerations who by precedents of former times and men of experience furnished with exoticke tongues have carried this part of pollicie very well and safely hitherto but now to the or 〈…〉 g of Martiall causes SECT 5. What are Martiall causes which are the second extraordinary matter belonging to the Cognisance of the Civill Law with us MArtiall causes are either Civill or Criminall whereof both are determinable by the Civill law A Civill Martiall cause is where either the Captaine or the Souldier requireth some thing that is due and withholden from him as his stipend his apparell which among the Romans was due twice a yeare that is their Sommer apparell from the first day of April to the first of September and their Winter from thence to Aprill his diet which among the Romans was two dayes hard bisket the third softer bread one day wine an other day vineger one day bacon and two dayes mutton his priviledges either in cases of preferment as to be removed from one degree to another or in cases of immunitie as to be freed from all servile functions If. de re militari Câ—eod tit l. 12. ff de privilegio veteranorum de castrensi peculio C. eodemtit l. 12. C. de erogatione militaris annonae C. de vest militari and sundry other like which a diligent reader may gather out of the titles of the Digest and Code of militarie affaires and other like titles which accompany them Souldiers faults are either proper to themselves or
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
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
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
he that is charged with the Bastardie were borne in lawfull Matrimonie or out of Matrimonie or whether he were borne before Lib. Intrâ—c fol. 35. his Father and Mother were lawfully contracted together in Matrimony or after All which the Ordinarie makes inquirie upon by his owne Ordinarie and pastorall authoritie for that matters of Bastardy doe originally belong to the Ecclesiasticall Court and not to the Temporall And as hee findes the trueth of the matter by due examination to bee this or that so hee pronounceth for the same in his owne Consistorie and makes certificate thereupon to the Kings Court accordingly and as hee pronounceth so the Temporall Judges follow his sentence in their Judgements either for or against the Inheritance that is in question Speciall Bastardy they say is that where the Matrimony Bracton is confessed but the priority or posterioritie of the Nativity of him whose birth is in question is controversed which to my thinking if I conceive aright is no other thing than the generall bastardie transported in words but agreeing in substance matter with the other for even these things which they pretend make speciall Bastardie are parts and members of the generall Bastardie and are either confessed or inquired upon by vertue of the Kings writ in the same For first for the Matrimonie that is here mentioned it is there agnised both by the Plaintife in pleading of it and the Defendant in the answering thereto and therefore the Plaintifes plea is thus Thou art a Bastard for that thou wast borne before thy parents were lawfully contracted together in Marriage or before their Marriage was solemnized in the face of the Church To which the Defendants reply is I am no Bastard for that I was borne in lawfull Matrimony or that I was borne after that my Father and Mother were lawfully married together In both which you see there is a Marriage confessed and the question onely is of the priority or posteriority of the nativity of him that is charged withall whether it happened before or after his parents marriage which as they hold is the other member of speciall Bastardie and yet this prioritie or posterioritie of nativity by vertue of the Kings writ comes no lesse in inquirie to the Ordinarie in the case of the generall Bastardie than they make it to be traversable in the speciall Bastardie and therefore the writ to the Ordinary for generall Bastardie is conceived in this manner viz. Inqutratis utrum praedictus A. pars rea genitus vel natus Lib. Intrac fol. 35. fuit anto Matrimonium contractum inter talem Patrem suum talem Matrom suam vel post So that either they Glanvill lib. 7. cap. 15. must confesse there is no such bastardie as they make shew there is diverse from that that is tried before the Ecclesiasticall Judge or that themselves doe confound the members that should divide the same and make them one or the other as them list for both simply they cannot be unlesse they be distinguished with other notes and differences than hitherto I finde they are But to say the truth if these things be well weighed and considered speciall Bastardie is nothing else but the definition of the generall and the generall againe is nothing but the definite of the speciall for whosoever is born out of or before lawfull Matrimonie hee is a Bastard and he againe is a Bastard that is borne before or out of lawfull Matrimony so that these things to bee a Bastard and to bee borne out of lawfull Matrimony are convertible one with the other so then as it were very hard to make a divorce betweene these things that are so â—eere in nature one to the other being convertiblâ— termes one to the other so hard againe it were in policie to disjoyne these things in triall that are so neere in affinitie one to the other because they are the same in substance and nature as the other are and therefore Eodem jure conseri debent And also ne continentiae causarum dividantur 〈…〉 q. c. 2. cognorimus which is no lesse absurditie in Law than it is a grossenesse in other learning to deny a principle or generall Maxime of the profession And so farre hitherto as concerning the reasons and arguments that may be brought against this speciall Bastardie Now it resteth that I shew by ancient precedents that both these sorts of Bastardy have appertained to the Ecclesiasticall Courts onely and the first precedent is in the incident the other in the principall and the precedent is no lesse ancient than Henry the seconds time as that which happened under Alexander the third about the yeare of our Lord 1160. and the case is this A certaine man of Norwich Diocesse called R. H. had issue I. H. who had a Son called C. H. I. H. deceasing before R. H. Cap. Lâ—…or ext qui filii sunt legitimi his Father C. H. succeeded in his Grandfathers Inheritance his said Grandfather being dead but M. H. Brother to the said Grandfather pretending that the said I. H. was a Bastard draweth the said C. H. into the Temporall Court upon the Inheritance whereupon C. H. called the said M. H. into the Bishop of Norwich his Court for the triall of his nativity but the Bishop long protracting the cause C. H. appealed to the Pope who delegated the same cause to the Bishop of Excester and the Abbot of Hereford with order That if the said M. H. should not within two Moneths prove that which hee objected against C. H. that then they should intimate the same to the secular Judge before whom the inheritance was in question that he should not stay any longer upon the question of legitimation but proceed to Judgement in the cause of the inheritance Which president though it be long before the Statute of Bastardie made by Henry the 6. and so no writ went from the Temporall Court for the certificate thereof yet it shewes that the Temporall Judges in those dayes did not proceed to Judgement in the principall cause before the incident were decided by the Ordinarie and that they counted bastardy then to be of the Ecclesiasticall cognisance and that it was lawfull for him that was pretended to be a Bastard to appeale from his Ordinarie if either the Ordinarie detracted the determination thereof or were suspected of partiality And thus farre of the incident There is an other much like precedent to this in the same Kings dayes but that is in the principall for that the inheritance came not first in question but the legitimation it selfe and the case is as followeth A certain man called Ralph kept one Analine the wife of one Allin by whom he was supposed to have begot one Cap. Causam ext qui fil 〈…〉 sunt legitimi Agatha who also being married had a Sonne called Richard Ralphe going beyond the Sea left Richard and his Mother Agatha in possession of all his
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
of Tythes 181. 182 Judgement civile criminall mixt 6. publick 22. ecclesiastick 79 80 Juglers how to be punished 21 Ivo Bishop of Carnat Compiler of the Decrees 74 Jurisdiction Ecclesiasticall wherein impeached 121. 122. 146. not to be confounded with the temporall 133. 149. 158 Jury of twelve men not requisite to determine which is barren ground 227 228. say nothing but what the Judge dictates ib. mostly partiall because possible parties 229 Jus patronatus what 196 Justices of the peace their office 41 59 Justinian why he compiled the Code 31 K Kingdomes indivisible 113 Kings their Titles given by the Law 103. their supremacie 104. Fountaines from whence is derived Ecclesiasticall jurisdiction as well as Civile 123. with whom resideth the prime power to interpret Statutes 257 258 Knights of how many kindes 105. whether they or Doctors to have precedencie 106 Knutes Lawes 140 L Lands of the Church in what cases they may be aliened let or sold 63. vid. Church what Lands may be given by Will 137 Land-markes not to be removed 21 22 Lanternes upon what occasion invented 197 Lapses upon what occasion induced 199 Lateran Councell when holden and with what successe 171 172 Law what 2. publick private of Nature of Nations ib. the object of the Law 4 5. the multitude inconvenient 32. how to be interpreted 256. without penalties of small force 259. Canon Law what 73. excused ib. how in use with us 114 115. c. Civile Law what 3. most equitable ib. Division of it 4 5. seq how farre in use in this Land 88. seq like a sword in a scabberd 97. the necessitie thereof 272. For Marine controversies ibid. commerce of Princes 273. punishment of spirituall disobedience ibid. Recoverie of Ministers right ibid. Wils Weddings Burials 274. Cases in Chauncerie 275. in the Court of Requests 276. severally impeached by the Common Law 122. in marine matters 228. in Wils 134 135. in Tythes 146. in cases of waste ground 223. of Diffamation 237. of Bastardie 243. how it may be releeved 255. Common Law wherin defective 262 264. how it may bee supplyed ib. The word Law not still taken for the Common Law 158. Law Ecclesiasticall 159. animated by the King 160. not to bee confounded with the temporall ib. of what antiquitie ibid. wherein abbridged 121. how to be releeved 255. seq Saxon Lawes 138 139 140. Salick Law refuted 109. Law of Laps 199 Lawyers why no fees assigned to them 30. Temporall and Ecclesiasticall 159 Lay-men may not celebrate divine Service 66. nor hold Impropriations 214. when they began to hold Tythes in fee 162 163. their ill will to the Clergie 198 Lay-patrons vid. Patron Leases for how long to be let 45. 63 Legacies when due 11. how taken away 12. when to be paid 51. for pious uses 67. unjustly deteined under pretence of debts unknowne 264. what remedie for that abuse 265. vid. Testaments Legataries how defrauded and how they may bee releeved 266 Legates why so called 28. 40. their priviledges ibid. usually Civilians 96 Legitimation of children 58. how made amongst the Romans 246. how with us ibid. Leige-men 72 Lent things if denied how recoverable 7 Letters dimissorie 26 Libell what 19. the Authours and Concealers how punished ibid. Liberall Sciences 29 Like Reason like Law 156 157 Litigious cases what 62 Lombards the first Authors of Feuds 71 Lucius first Christian King of England 142 Lycurgus his uprightnesse 112 M Mad persons how provided for by the Law 11 Magdeburgenses vindicated from mis-allegation 169 Magistrates office 28 29 Mahomet alloweth Tythes 175 Maiors election and office 53 Maintenance of parents and children how it might be provided for 263 264. seq Manner of Tything how to be expounded 180 Manzeres what 244 March grounds 44 Marianus Scotus imperfect 171 Marine affaires 88 89 Marriners priviledges 42 Marriage what 9. 55. within what degrees forbidden 53. why to Priests 253. within the yeare of mourning punishable 55. in the husbands absence 62. impediments of marriage 83. second marriage prejudiciall to the children of the first 263 264. 268 Charles Martel the first in the Christian world that violated the right of Tythes 164. his fact related at large ib. 165. how censured by historians ib. why denied by some omitted by some 166. related by others 167. those French-men 168. 170. whence they had the storie ib. his fact imitated in other Nations 169 170. the vision concerning him 165. whether creditable 170 171 Martiall causes of Ecclesiasticall cognisance 98 Master of the Souldiers 45. of Requests 53. of the Ship 89 Mercie triumphoth over judgement 275 Mere-balkes not to be removed 21 22 Mettals tytheable 217. arguments to the contrary answered 219 220. how they are generated 218. they may renew but seldome doe ib. Micha's Disciples 198 Militarie discipline 48 Minerals vid. Mettall Ministers at what age to bee ordained 65. vid. Clerkes Minors estates how to be disposed of 59 Miracles not so frequent now as formerly 171 Monasteries not to be builded without the licence of the Bishop 51. their priviledges 184. and the bad use of them 185. the restraint thereupon ibid. Monetaries immunitie from service 43 Money why used 224 Monkes life and conversation 51. 184. originall of cloystered Monkes 187 Mother-Church 176 177 Mother-Village 44 Mort-maine the originall of it 183. in severall Nations 185. whence the name ib. now not necessarie ib. Myners immunitie 42 N Names not to be altered 100 Naturales filii who 244 Navigation beneficiall to the Common-wealth 271. requireth the practice of the Civile Law ib. Necessitie of the Civile Law in this Land 271 New-years gifts of ancient use 38 Nicene Canons urged 153 154. hardly escaped the fire of the Arrians ib. their authoritie questioned ib. what exemplary life they require of Monkes 184 Notaries place 46 Nothi who 244. Nothae febres ib. Natalia what 226 Novelles what 50 Nundinae why so called 29 O Oathes of severall kindes 7. of the deceased when good 56. Of women tumblers of no account ibid Obligations how they may bee excepted against 7. how many sorts of them 17 18. by words how released ib. Offences publick and private 18 Officers how to be chosen 41 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 what 191 Oratories in private houses 57 Ordeall fire and water 86 Order of succession 63. who may not take orders 77 Orders of Monkes tythe-free 200 Ordination of Ministers 76 Orphanes estates ill provided for by the Common Law 264 265. but may finde releefe at the Civile 266 P Pagans why so called 215 Pandects what 4. the division thereof 5. seq Parents affection to one childe how moderated 61. greevances how to be releeved 263 Parishes their bounds of Ecclesiasticall cognisance 151. the originall of them 152. 174. the severall acceptions of the word 153 Parliament of whom it consisteth 159. hath sole power to reforme the Statutes 256 Parricides how punished 23 Parts no accessories 233. similar and dissimilar ib. Pope Paschal his