matrimony or that I was borne after that my father and mother were lawfully married together in both which you sée there is a mariage confessed the question onely is of the priority or posteriority of the natiuitie of him that is charged withall whither it hapned before or after his parents marriage which as they hold is the other member of speciall bastardie and yet this prioritie or posterioritie of natiuitie by vertue of the Kings writ comes no lesse in inquirie to the Ordinary in the case of the generall bastardie than they make it to be trauersable in the speciall bastardie and therfore the writ to the Ordinary for generall bastardie is conceiued in this manner viz. Inquiratis Lib. Intrac fol. 35. vtrum praedictus A. pars rea genitus vel natus fuit ante matrimonium contractum inter talem patrem suum et talem Gâ—anuill Lib. 7. cap. 15. matrem suam vel post So that eyther they must consesse there is no such bastardy as they make shew there is diuerse from that that is tried before the Ecclesiastical Iudge or that themselues do confound the members that should diuide the same and make them one or the other as them list for both simply they cannot be vnlesse they be distinguished with other notes and differences than hitherto I find they are But to say the truth if these things be well weyghed and considered speciall Bastardy is nothing else but the definition of the generall and the generall againe is nothing but the definite of the speciall for whosoeuer is borne out or before lawfull Matrimonie he is a bastard and he againe is a bastard that is borne before or out of lawful matrimony so that these things to be a bastard and to be borne out of lawfull matrimony are conuertible one with the other so then as it were very hard to make a diuorce betwéene these things that are so néere in nature one to the other being conuertible termes one to the other so hard again it were in policie to disioyne these things in triall that are so neere in affinitie one to the other because they are the same in substance nature as the other are and therfore eodem iure censeri debent 1â— q. ca. 2. cognoâ—imus then nè continentiae causaruÌ„ diuidantur which is no lesse absurditie in Law than it is a grosnesse in other learning to deny a principle or generall Maxime of the profession And so far hitherto as concerning the reasons arguments that may be brought against this speciall Bastardy Now it resteth that I shew by ancient precedents both these sorts of Bastardy haue appertained to the Ecclesiastical Courts only and the first precedent is in the incident the other in the principall and the precedent is no lesse auntient than Henry the seconds time as that which hapned vnder Alexander the third about the yeare of our Lord 1160. the case is this A certaine man of Norwich Diocesse called R. H. had issue Ca. Lator. ext qui filij sunt legitimi I. H. who had a sonne called C. H. I. H. deceasing before R. H. his father C. H. succéeded in his Grandfathers in heritance his said Grandfather being dead but M. H. brother to the said Grandfather pretending the said I. H. was a Bastard draweth the said C. H. into the Temporall Court vpon the inheritance whereupon C. H. called the said M. H. into the Bishop of Norwich his Court for the triall of his natiuitie 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 Hereforde with order That if the said M. H. should not within two Monethes prooue that which he obiected against C. H. that then they should Intimate the same to the seculer Iudge before whom the inheritance was in question that he should not stay any longer vpon the question of legitimation but procéed to Iudgement 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 certificat therof yet it shewes that the Temporall Iudges in those daies did not procéed to iudgement in the principall cause before the incident were decided by the Ordinary that they counted bastardy then to be of the Ecclesiast cognisance and that it was lawful for him that was preteÌ„ded to be a bastard to appeal from his Ordinary if either the Ordinary detracted the determination therof or were suspected of parciality And thus far 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 Raphe kept one Analine the wife of one Ca. Causam ext qui filij sunt legitimâ— Allin by whom he was supposed to haue begot one Agatha who also being married had a sonne called Richard Raphe going beyond the Sea left Richard and his Mother Agatha in possession of all his goods lands but newes being after brought that the said Raphe was dead beyond sea Frauncis the brother of the said Raphe spoyled the said Richard of the possession of all the goods lands he had of the said Raphe his grandfather for that he did pretend the said Agatha his niece Mother of the said Richard was not borne of lawfull Matrimonie so that neither shée her selfe nor her sonne ought to succéed the brother of the said Frauncis but that the inheritance thereof did belong vnto himselfe whereupon the said Richard being thus spoiled by Frauncis his great vncle obtained letters of restitution to the Bishop of London the B. of Worcester the B. of Excester vnder this forme That before they entred into the principall cause which was this whether the said Agatha were borne in lawfull Matrimonie or not they should restore the said Richard to his Grandfathers inheritance But the Bishop of Rome after vnderstanding by the said Delegats that the plea of inheritance within this Realme did not belong vnto the Church but vnto the King recald that part of his rescript which concerned the restitution of the said Richard to his inheritance gaue order to the foresaid Bishops to procéed in the cause of legitimation willing them to inquire whether the said Agatha were borne of the said Aneline in the life time of her husband Allin and when shée dwelt cohabited with him as with her husband or whether the said Raphe father of the said Agatha kept the said Aneline openly publikely while the said Allin yet liued And if they found it to be so then they should pronounce her the said Agatha to be a Bastard for that Aneline her Mother could not be counted to be a wife but a whore which defyling her husbands bed
man more than for 30. yeares or 3. liues vnlesse eyther the houses be so ruynated that they cannot be repayred without great charges of the Church or other religious houses or that it be ouercharged with any debts or dueties belonging to the Exchequer and thereby there commeth small reuenue to the Church or Religious place thereout in euery of which cases it is lawfull to let out the same for euer reseruing a yearely competent rent other acknowledgements of other souerainties therein That the holie vessels of the Church be not sold away vnlesse it be for the ransoming of Prisoners or that the Church be in debt in which case if they haue more holy vessels than are necessary for the seruice of the Church they may sell those which are superfluous to any other Church that néedeth them or otherwise dispose of them at their pleasure for the benefit of the Church or other holy place whose they are Where Vsurie in processe of time doth double the principall there Vsurie for the time to come doth cease and those particuler payments which afterwards do follow are reckoned in the principall What kind of men are to be chosen Bishops such as are sound in faith of honest life conuersation and are learned that such as choose them sweare before the choice they shall neyther choose any for any reward promise friendship or any other sinister cause whatsoeuer but for his worthynesse and good parts only That none be ordeined by Symonie and if there be that both the giuer taker and mediator thereof be punished according to the Ecclesiasticall Lawes and they all made vnworthie to hold or inioy any Ecclesiasticall liuing hereafter That if any at the time of any Bishops election obiect any thing against him that is to be elected the election be staid till proofe be made of that which is obiected by the aduersarie against the partie elected so that he prooue the same within 3. Moneths and if any procéeding be to the consecration of of the same Bishop in the meane time it is void That the Bishop after he is ordeyned may with out any danger of Law giue or consecrate his goods to the vse of the Church where he is made Bishop and that he may giue such fées as are due to the electors by Law or custome That Clerks be not compelled to vndergoe personall functions and seruices of the common wealth and that they busie not themselues in seculer affaires so thereby be drawen from theyr spirituall function That Bishops for no matter or cause be drawen before a temporall Iudge without the Kings speciall commaundement and if any Iudge presume to cal any without such speciall warrant the same is to loose his office and to be banished therefore That no Bishop absent himselfe from his Dioces without vrgent occasion or that he be sent for by the Prince and if any doe absent himselfe aboue one yeare that he shall lack the profit of his Bishopricke and be deposed from the same if he retorne not againe within a competent time appointed for the same What manner of men are to be made Clerks such as are learned are 〈◊〉 good Religion of honest life conuersation and are frée from suspition of incontinency that no Minister be lesse then 35. yeares of age and that no Deacon or Subdeacon be vnder 25. that all Clerks and Ministers be ordeyned fréely If any build a Church and indow the same that he may present a Clerk thereto so that he be worthy to be admitted therto but if he present an vnworthy man then it appertaineth to the Bishop to place a worthy man therein If any Clerke be conuicted to haue sworne falsely he is to be depriued his office and further to be punished at the discretion of the Bishop That Clerks be conuented before their owne Bishops and if the parties litigant stand to the B. order the Ciuill Iudge shal put it in execution but if they agrée not vpon the iudgement then the Ciuill Iudge is to examine it eyther to confirme or infirme the B. order if he confirme it then the order to stand if not then the party grieued to appeal If the cause be criminall and the Bishop find the party guiltie then the Bishop is to degrade him and after to giue him ouer to the seculer power the like course is to be held if the cause be first examined before the temporall Iudge and the partie found guiltie for then he shall be sent to the Bishop to be depriued and after againe shall be deliuered to the seculer powers to be punished That Bishops be conuented before their Metropolitans That such as in Seruice time do abuse or iniure the Bishop or any Clerk in the Church being at diuine Seruice be whipt and sent into banishment But if they trouble thereby the diuine Seruice it selfe they are to dye the death for the same That Lay men are not to say or celebrate diuine Seruice without the presence of the Minister and other Clerkes thereto required That such as goe to Law sweare in the beginning of the suit that they haue neyther promised or will giue oght to the Iudge and that vsuall fées be taken by the Aduocates Counsellers Procters or Attournies if any man take more than his ordinary fées he shall be put from his place of practise and forfeit the foure double of that he hath taken That the 4. generall Councels be holden as a Law and that which is decréed in them That the B. of Rome hath the first place of sitting in all assemblies and then the B. of Constantinople That all Clergie mens possessions be discharged from all ordinary and extraordinary payments sauing from the repairing of Bridges and High wayes where the said possessions do lye That no man buyld a Church or holy place without the leaue of the B. and before the Bishop there say Seruice and set vp the signe of the Crosse That no man in his owne house suffer Seruice to be said but by a Minister allowed by the Bishop vnder paine of confiscating of the house if it be the Lord of the house that presumeth to doe it or banishment if it be done by the tenant If any bequeath any thing to God it is to be paied to the Church where the Testator dwelled If any deuise by his last Will a Chappell or Hospitall to be made the Bishop is to compell the Executors to performe it within fiue yeares after the decease of the Testator and if the Testator name any gouernor or poore thereto they are to be admitted vnlesse the Bishop shall find them vnfit for the roome That the Bishop sée such Legacies performed as either are giuen for the redemption of Prisoners or for other godly vses That Masters of Hospitals make an accompt of their charge in such sort as Tutors doe That such as lust against nature and so become brutish receiue condigne punishment worthy their wickednesse That such as
daies after Sentence giuen or within ten daies after the Notice is come to the partie against whom the Sentence did passe vnlesse there attend thereon a continuall griefe in which case a man may appeale so long as the griefe indures the time to aske Dunissorie Letters is thirtie daies from the Sentence giuen the time to present the same to the Iudge is at the discretion of the Iudge from whom the time of prosecuting the same is a yeare or vpon iust cause two yeares in which time if the sute bee not ended the cause is deserted and to be sent back vnto the Iudge from whom the Appeale was first made while the Appeale hangeth nothing is to be innouated because by the Appeale the Iudges hands are as it were bound but if the former Sentence were void by law as in sundry cases they are then there néedeth no Appeale for such Sentences neuer passe into a case Iudged Appeales in criminall cases cannot be iustified by a Proctor but it is otherwise in Ciuile causes An Appeale in one cause doth not exempt the partie appellant from his own Iudge in other causes If the appellant die during the time of the Appeale and leaue no heire behind him the Appeale ceaseth but if he leaue an heir behind him the matter of the Appeale concernes none but himselfe he is not to be compelled to follow it for euerie one may renounce his owne suite but if it concerne the Exchequer or any other bodie then may hee be compelled to follow it The Exchequer is the Princes Treasurie and the patrimonie of the common wealth and hath many singuler prerogatiues which priuat men haue not Such as are taken captiue by the enemy become their seruants who haue taken them vnlesse eyther they escape home againe themselues or be ransomed by their friendes in both which cases they recouer all right and priuiledges they had in their owne common wealth before By the Law all Subiects whatsoeuer are bound to serue the common wealth in warre insomuch that if any being prest withdraw himselfe or his child from it he is to be counted as a rebell and for his punishment is to be banished and mulcted or fined in the greatest part of his goods As the priuiledges and rewards of Souldiors were many to incorage them to vertue and manhood so their shames and punishments were great to feare them from cowardice and vice But among the rest of the priuiledges of Souldiors the old Souldiors were the greatest Of Subiects some dwelt in Shires and liued after their owne Lawes and yet neuerthelesse were made partakers of the honors of the Citie some other were inhabitants onely in the common wealth and had onely a house in the same place to dwell in and had no right to beare office some other were straungers brought in which were ruled by the Law of them among whom they dwelt Amongst those that dwelt in Shires the chiefest Magistrate was he whom they called Decurio who was not sent by the people of Rome thither for he was a Magistrate of Magistrates but elected by the people there and his office was to kéepe the treasurie of the Countrey to prouide victuall exact tribute and gouerne the state there in maner as our Shirifes doe here His office was onely annuall least by libertie and lust of gouernment and continuance thereof it might grow into a tyrannie Such as are Subiects are to serue the common wealth in such offices places and seruices as their abilitie is fit for and the necessitie of the common wealth requires The seruices of the Common wealth were of thrée sorts Patrimoniall such as belong to euery mans patrimony to performe which stood chiefly vpon payments and charges which were to go out of euery mans inheritance towards the performance of such burthen as lay vpon him by law custome or commaund of him that had power thereto Personall which were to be performed by the care and industrie of the partie and his corporall labour without expence of his purse Mixt which required both care of the mind and labour of the bodie and expence of the purse and are imposed aswell in consideration of the thing as the person which euery subiect is to vndergo vnlesse by the Law or by the indulgence of the Prince they are excused as some are excused by reason of olde age some by yong age some for their dignitie some for their calling some for their state of bodie some for that they serue in the necessarie seruices of the Common wealth at home or abrode as Imbassadors doe some for that they are necessary places of seruices for Gods Religion as cathedrall Churches other Churches are some for that they are good and necessarie places for Seminaries for the Common wealth for learning and such other imployments as Colledges Societies and Schooles of learnings and nurture are Legates and Imbassadors had immunitie from all publike seruices not only the time of their embassage but also two yeare after their returne They were called Legates in that they were chosen as fit men out of many their person was sacred both at home and abrode so that no man might lay violent hands on them without breach of the Law of Nations Such as are Magistrats of cities ought so to gouerne that no negligence may be iustly imputed vnto them otherwise they are to answere it and that when their office is expyred they giue vp a iust accompt both of what they haue receiued what they haue laied out pay in the residue if there be any Gouernors of Cities together with the consent of the Burgesses therof may set downe such orders and decrées as are for the benefit well ordering thereof which are to be obserued of all those which are Inhabitants therof and being once wel and duely set downe are not to be reuersed but to the good of the Citie or Comminalty New publike works such as are good for the Common weale euery one may make without the leaue of the Prince vnlesse it be done for emulation or cause of discord but for old works in which stands the securitie of the Common wealth as Castles towers gates and wals of Cities nothing is to be done or innouated in them without the Princes warrant neyther is it lawfull for any man to graue his name in any publike work vnles it be his at whose cost the work is done Faires are authorized by Princes only are inuented for trade of marchandize vttering of wares which Countrymen haue cause to buy or sell and haue their priuileges that no man in any Faire can be arrested for any priuat debt they are called Nundinae therupon that euery ninth day they were holden either in one place or other He that for x. yeares space intermitteth to vse his Fayre loseth the priuiledge therof If any make any promise to a Citie or Common wealth to do any thing vpon certain cause as that he might be made Consul or that
and penalties as well against them which carried away any prediall Tythes before the tenth part thereof were iustly diuided from the same or otherwise agréed for with the owner thereof as also against those that did let or hinder the owner thereof his deputie or seruant to view take or carrie away the same Inacting further that the party so substracting or withdrawing any of the Tythes obuentions profits commodities or other dueties aforesaid might or should be conuented or sued in the kings Ecclesiasticall Court by the party complainant to the intent the kings Ecclesiasticall Iudge might then and there determine the same according to the kings Ecclesiasticall Lawes And that it should not be lawfull for the Parson Vicar or any other owner or farmer thereof contrary to the same act to conuent or sue any withholder of Tythes or any other like dueties before any other Iudge than Ecclesiasticall excepting only out of the said Statute things contearie or repugnant to or against the effect and meaning of the Statute of Westminster the second the fift Chapter the Statuts of Articuli Cleri Circumspecte agatis Sylua Cedua the treaties De Regia Prohibitions matters against the Statute of Anno primo Edwardi primi Capite decimo and such other matters beside wherin the Kings Court of right ought to haue Iurisdiction Notwithstanding all which good prouision of ancient kings before the Conquest and moderne kings since the Conquest for the assuring of the suite of Tythes to the Ecclesiasticall Courts onely and the continuall possession that the Ecclesiasticall Courts haue had of the same deduced from so auncient time as hath béene before shewed and so often obtained in contradictorie iudgement as the consultations thereupon graunted doe testifie yet sundry men in sundry ages of this Land haue by wrenches and subtil denises which are odious in Law and are by all godly and wise Iudges by all possible meanes euermore to be restrained raised vp matter out of the said statute themselues contrarie to the true sence and meaning therof to draw the tryall of most of those matters away from the Ecclesiasticall Courts So that those Statutes which then were intended for the good of the Ecclesiasticall L. legata innâ—â—liter ff de adimendis legatis l. 2. ante fineÌ„ C. dâ— iureâ—ur propter caluminaÌ„ dando Courts are now become the vtter ruine and ouerthrow of the same contratie to the rule of the Law and common reason that things which were purposed for one end should worke vnto another end The first aduantage they take against the Ecclesiasticall Courts out of these Statutes is gathered out of the twentie seuen and thirtie two of Henry the eight where it is 27. 32. Hen. â— ordered that all the Kings subiects shall pay their Tythes according to the laudable vses and customes of their parishes and places where such Tythes grow and become due which albeit is vndoubtedly meant of Ecclesiasticall customes triable at the Ecclesiasticall Law and so euer held till now of late that men thinke all too much that goeth beside their owne nâ—â— yeâ— there want not in these daies which goe about with all might and maine to drawe away these things vnto the Temporal Courts as belonging to the Temporall Crowne and dignitie Wherein they do wrong not only to the kings Ecclesiasticall Courts to spoile them â—â— their auncient Iurisdiction but also do in 〈◊〉 to the king himselfe as though he had but 〈◊〉 proper Iurisdiction belonging to his Throne and seat of Maiestie that which were done by his Ecclesiasticall power were done against his Crowne and Dignitie whereas they are equally vnired in him and his Throâ—â— is no lesse 〈◊〉 vp by his Ecclesiastical power thâ—â— it is vpholden by his Temporall authoritie And therefore a méere Paradox is that that they so constantly affiâ—â—â— that customes in payment of Tythes are matters of Temporall cognisance only and not of spirituall cognition For as there 〈◊〉 Seculer customes such aâ—â—â—e the customes of Manorâ— and Lordships where the Lord hath his Rent hiâ— heâ—â—â—t his reliefe and seruice and the tenant againe doth his homage and fealtie according to the Nature of his Tenure which seculer customes the fornamed statute De Regia Prohibitions forbiddeth Ecclesiasticall Iudges to deale in So also there are Ecclesiastical customes such as is the payment of Tithes and other Ecclesiasticall duties to which common Lawyers are not to put their hands but to abstaine from them as dedicated to the vse and tryall of the spirituall Courts Otherwise would neither the auncient authors of the Legantines and Prouinciall constitutions of this Land the eldest of which are equall with the daies of Henry the third and the Prouincial c. quoniam de decimis youngest of them endeth in the raigne of Henry the fift euer haue changed so many seuerall customes of payment of Tythes as then were within the Land and in stéed of them haue brought in one vniforme payment of the same as is at this day vsed saue where either the negligence of the Parsons or the couetousnesse of the Parishioners hath in some point changed the same Neither would these statutes of Henry the eight euer haâ—e ordered the people should pay their Tythes after the laudable customes and vsages of the Parishes where they grew if the vsage and custome of the payment it selfe had not beene subiect to the Ecclesiasticall cognisance for in vaine shall 〈◊〉 sue for that the Law allowes him no course to come by of it be denyed in the speciall L. Finali ff de officio eius cui mandata est iurisd l. 3. ff de pena legata 〈…〉 belonging â— that 〈…〉 iâ— vndoubted Law where 〈…〉 Iuriâ—diction granted 〈◊〉 in like manner granted all thâ—se things without which â—hat authoritie or Iurisdiction cannot be perfected or performed And therefore it is without question â—â— Tythes by the saiâ— Statut◠〈…〉 by the Ecclesiasticall law and not 〈…〉 so 〈◊〉 the Custome whereby they are pâ—â—d iâ— onely â—â—â—able at the Ecclesiasticall Law Otherwise this 〈…〉 follow thereupon which in all other 〈◊〉 beside this of â—urâ— iâ— a great absurditie Bartol l. nulli C. de iudiciis Glos. c. significanerunt de indiciis thâ—â— the 〈◊〉 of 〈…〉 which the Ciuilians call 〈…〉 â—ill be 〈◊〉 and â—â—â—oyned which by â—ll good poliâ—ie together with all her parâ—s emergent or 〈◊〉 ought to be 〈◊〉 discussâ—â— and determined before one and the selfe same Iudge one I mean not in number but one in profession for otherwise I should by this assertion bar Appeales which is not mine intent Which course if it were held here in England causes should not be drawne péecemaele in such sort as Medea tore her brother limme-meale and one part of it carried to this Cicero pro Murena Court another to that like vnto the rent limmes of the child that were cast here and there by Medea thereby to hinder her father from pursuing of her but