matter of the ninth Collation THe ninth and last Collation conteineth matter of succession in goods that as long as there be any Descendent either Male or Female so long neither any Ascendent or any Collaterall can succeed and that if there be no Descendent then the Ascendent be preferred before the Collateral unles they be brethren or sisters of the whole blood who are to succeed together with the Ascendent but in Ascendents those are first called which are in the next degree to the deceased then after those which are in a more remote degree that in Collaterals all be equally admitted which are in the same degree and of the same Parents whether they be male or female That the lands of any Church Hospitall or other like Religious place be not sold aliened or changed unlesse it be to the Princes house or to or with an other like Religious place and that in equall goodnesse and quantitie or that it be for the redemption of Prisoners and that they be not let out to any private man more than for 30. years or 3. lives unlesse either the houses be so ruinated that they cannot be repaired without great charges of the Church or other religious houses or that it be overcharged with any debt or duties belonging to the Exchequer and thereby there commeth small revenue to the Church or Religious place there-out in every of which cases it is lawfull to let out the same for ever reserving a yearly competent rent and other acknowledgement of other soveraignty therein That the holy vessels of the Church be not sold away unlesse it be for the ransoming of Prisoners or that the Church be in debt in which case if they have more holy vessels than are necessary for the service of the Church they may sell those which are superfluous to any other Church that needeth them or otherwise dispose of them at their pleasure for the benefit of the Church or other holy place whose they are Where Usurie in processe of time doth double the principall there Usurie for the time to come doth cease and those particular payments which afterwards doe follow are reckoned in the principall What kinde of men are to be chosen Bishops such as are sound in faith of honest life and conversation and are learned that such as chuse them sweare before the choyce they shall neither chuse any for any reward promise friendship or any other sinister cause whatsoever but for his worthinesse and good parts onely That none be ordeined by Symonie and if there be that both the giver taker and mediator thereof be punished according to the Ecclesiasticall Lawes and they all made unworthy to hold or enjoy any Ecclesiasticall living hereafter That if any at the time of any Bishops election object any thing against him that is to be elected the election be staid till proofe be made of that which is objected by the adversarie against the partie elected so that he prove the same within three Moneths and if any proceeding be to the consecration of the same Bishop in the meane time it is void That the Bishop after he is ordeined may with out any danger of Law give or consecrate his goods to the use of the Church where he is made Bishop and that he may give such fees as are due to the electors by law or custome That Clerks be not compelled to undergoe personall functions and services of the common-wealth and that they busie not themselves in secular affaires and so thereby be drawn from their spirituall function That Bishops for no matter or cause be drawne before a temporall Judge without the Kings speciall commandement and if any Judge presume to call any without such speciall warrant the same is to lose his office and to be banished therefore That no Bishop absent himselfe from his Dioces without urgent occasion or that he be sent for by the Prince and if any doe absent himselfe above one yeare that he shall lack the profit of his Bishoprick and be deposed from the same if he returne not againe within a competent time appointed for the same What maner of men are to be made Clerks such as are learned and are of good Religion of honest life and conversation and are free from suspition of incontinencie that no Minister be lesse than 35. yeares of age and that no Deacon or Subdeacon be under 25. that all Clerks and Ministers be ordeined freely If any build a Church and indow the same that he may present a Clerk thereto so that he be worthy to be admitted thereto but if he present an unworthy man then it apperteineth to the Bishop to place a worthy man therein If any Clerke be convicted to have sworne falsely hee is to be deprived of his office and further to be punished at the discretion of the Bishop That Clerks be convented before their owne Bishops and if the parties litigant stand to the Bishops order the Civile Judge shall put it in execution but if they agree not upon the judgement then the Civile Judge is to examine it and either to confirme or infirme the Bishops order and if he confirme it then the order to stand and if not then the party grieved to appeale If the cause be criminall and the Bishop finde the party guiltie then the Bishop is to degrade him and after to give him over to the secular power the like course is to be held if the cause be first examined before the temporall Judge and the partie found guiltie for then hee shall be sent to the Bishop to be deprived and after againe shall be delivered to the secular powers to be punished That Bishops be convented before their Metropolitans That such as in Service time do abuse or injure the Bishop Si vero etiam Litaniam concusserit capitale periculum sustinebit De Sanctissim Episcop Deo § Si quis cum sacra minist or any Cleark in the Church being at divine service be whipt and sent into banishment But if they trouble thereby the divine Service it selfe they are to dye the death for the same That Lay men are not to say or celebrate divine Service without the presence of the Minister and other Clerkes thereto required That such as goe to Law sweare in the beginning of the suit that they haue neither promised or will giue ought to the Judge and that usuall fees be taken by the Advocates Counsellours Procters or Attournies and if any man take more than his ordinary fees he shall be put from his place of practise and forfeit the foure double of that he hath taken That the 4. generall Councels be holden as a Law and that which is decreed in them That the Bishop of Rome hath the first place of sitting in all assemblies and then the Bishop of Constantinople That all Clergy mens possessions be discharged from all ordinary and extraordinary payments saving from the repairing of Bridges and High wayes where the said possessions doe
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
goods and lands but newes being after brought that the said Ralphe was dead beyond the Sea Francis the Brother of the said Ralphe spoyled the said Richard of the possession of all the goods and lands he had of the said Ralphe his Grandfather for that he did pretend the said Agatha his Niece and Mother of the said Richard was not borne of lawfull Matrimonie so that neitheir shee her selfe nor her sonne ought to succeed the Brother of the said Francis but that the inheritance thereof did belong unto himselfe whereupon the said Richard being thus spoyled by Francis his great uncle obtained Letters of restitution to the Bishop of London the B. of Worcester and the B. of Excester under this forme That before they entred into the principall cause which was this Whether the said Agatha were borne in lawfull Matrimonie or not they should restore the said Richard to his Grandfathers inheritance But the Bishop of Rome after understanding by the said Delegates that the plea of inheritance within this Realme did not belong unto the Church but unto the King recall'd that part of his rescript which concerned the restitution of the said Richard to his inheritance and gave order to the foresaid Bishops to proceed in the cause of legitimation willing them to inquire whether the said Agatha were borne of the said Aneline in the life time of her husband Allin when she dwelt and cohabited with him as with her husband or whether the said Ralphe Father of the said Agatha kept the said Aneline openly and publickly while the said Allin yet lived And if they found it to be so then they should pronounce her the said Agatha to bee a Bastard for that Anelina her Mother could not bee counted to bee a wife but a whore which defiling her husbands bed presumed to keepe company with an other her husband yet being alive But if they found it otherwise then they should pronounce her the said Agatha to be legitimate All which was done after the death of the said Ralph and Aneline as the Decretall it selfe shewes Neither was there any authoritie that opposed it selfe against that proceeding but held it to be good and lawfull though it were in terme of speciall Bastardie for then that which they now call speciall Bastardie was not borne Besides hereby it appeareth that the Ordinaries then did not onely proceed in cases of Bastardie incidently that is when a suit was before begun in the Common Law upon a triall of inheritance and that by writ from the Temporall Courts but even originally and that to prepare way unto inheritance or any other good that was like to accrue unto a man by succession or to avoid any inconvenience that might keepe him from promotion as may appeare by this practise following Priests in the beginning of the Raigne of Henry the 3. Constitut Otho innotuit de uxoratis à benefic 〈…〉 amovendis yet married secretly and their children were counted capable of all inheritance and other benefits that might grow unto them by lawfull marriage so that they were able to prove that their parents were lawfully married together by witnesses or instruments which many children did either upon hope of some preferment that by succession or otherwise was like to come unto them or to avoid some inconvenience that otherwise might light upon them for the want of that proofe some their parents yet living others their parents being dead and the proceedings before the Ordinary was holden good to all intents and purposes even in the Common Law for otherwise they would not have so frequented it for as yet there was made no positive Law against marriages of Priests and Ministers but the Church of Rome then plotting against it for that by that they pretended the cure of Soules was neglected and the substanc of the Church wasted and dissipated did by Otho then Legate à Latere to Gregory the ninth order by a Constitution that all such Ministers as vvere married should be expelled from their Benefices and their Wives and Children should be excluded from all such livelihood as the Fathers had got during the time of the Marriage either by themselves or by any middle person and that the same should become due unto the Church wherein they did reside and that their children frō that time forth should be disabled to injoy holy orders unlesse they were otherwise favourably dispensed withall which Constitution although it wrought to that effect to barre Priests for that time of their Marriage untill the light of the Gospell burst out and shewed that that doctrine was erronious yet to all other effects the proceeding in the case of Bastardie stood good as a thing due to be done by holy Church And therefore Linwod comming long after in his Catalogue that hee maketh of Ecclesiasticall causes reciteth Legitimation for one among the rest for that in those daies there was no dispute or practise to the contrarie And thus farre as concerning those things wherein the Ecclesiasticall Laws are hindered by the Temporall in their proceedings contrary to Law Statute and custome anciently observed which was the third part of my generall division Now it followeth that I shew wherein the Ecclesiasticall Law may be relieved and so both the Lawes know their owne bounds and not one to over-beare the other as they doe at this day to the great vexation of the subject and the intolerable confusion of them both which is the last part of this Treatise PART IV. CHAP. I. SECT 1. The meanes how to relieve the Civill Law that they are of two sorts that two things are required to the first meane and that the former of these is the right interpretation of Lawes and what that is THe meanes therefore to relieve the profession of the Civile Law are two The first is by the restoring of those things which have beene powerfully by the Common-Law taken from them and the bringing of them backe againe unto their old and wonted course The other is by allowing them the practise of such things as are grievances in the Common-wealth and fit to be reformed by some Court but yet are by no home-Law provided for The first of these stands in two things whereof the one is the right interpretation of the Lawes Statutes and customes which are written and devised in the behalfe of the Ecclesiasticall Law The other consisteth in the correcting and supplying of such Lawes and Statutes that are either superfluous or defective in the penning made in the behalfe as it is pretended of the Ecclesiasticall profession but yet by reason of the unperfect pe 〈…〉 g thereof are construed for the most part against them The right interpretation of the Law Statutes and Customes pertaining to the practise standeth as is pretended in the Judges mouth who notwithstanding hath that authoritie from the Soveraigne and that not to judge according as him best liketh but according as the right of the cause doth require The supply or
the time to present the same to the Judge is at the discretion of the Judge from whom the time of prosecuting the same is a year or upon just cause two years in which time if the sute be not ended the cause is deserted and to be sent back unto the Judge from whom the Appeale was first made while the Appeale hangeth nothing is to bee innovated because by the Appeale the Judges hands are as it were bound but if the former Sentence were voyde by law as in sundry cases they are then there needeth no Appeale for such Sentences never passe into a case judged Appeales in criminall cases cannot be justified by a Proctor but it is otherwise in Civile Causes An Appeale in one cause doth not exempt the party appellant from his owne Judge in other causes If the appellant die during the time of the Appeale and leave no heire behinde him the Appeale ceaseth but if he leave an heire behinde him and the matter of the Appeale concernes none but himselfe he is not to be compelled to follow it for every one may renounce his owne sute but if it concerne the Exchequer or any other body then may hee be compelled to follow it The Exchequer is the Princes Treasurie and the patrimony of the common-wealth and hath many and singular prerogatives which private men have not Such as are taken captive by the enemy become their servants who have taken them unlesse either they escape home again themselves or be ransomed by their friends in both which cases they recover all right and priviledges they had in their owne common-wealth before By the Law all Subjects whatsoever are bound to serve the common-wealth in warre in so much that if any being prest withdraw himselfe or his childe from it he is to be counted as a rebell and for his punishment is to be banished and mulcted or fined in the greatest part of his goods As the priviledges and rewards of Souldiers were many to encourage them to vertue and manhood so their shames and punishments were great to feare them from cowardice and vice But among the rest of the priviledges of Souldiers the old Souldiers were the greatest Of Subjects some dwelt in Shires and lived after their owne Lawes and yet neverthelesse were made partakers of the honours of the Citie some other were inhabitants onely in the common-wealth and had onely a house in the same place to dwell in and had no right to bear office some other were strangers brought in which were ruled by the Law of them among whom they dwelt Amongst those that dwelt in Shires the chiefest Magistrate was he whom they called Decurio who was not sent by the people of Rome thither for he was a Magistrate of Magistrates but elected by the people there and his office was to keepe the treasurie of the Countrey to provide victuall exact tribute govern the state there in maner as our Sherifes doe here His office was onely annuall lest by liberty and lust of government and continuance thereof it might grow into a tyrannie Such as are Subjects are to serve the common-wealth in such offices places and services as their abilitie is fit for and the necessitie of the common-wealth requires The services of the common-wealth were of three sorts Patrimoniall such as belong to every mans patrimony to performe which stood chiefly upon payment and charges which were to goe out of every mans inheritance towards the performance of such burthen as lay upon him by law custome or command of him that had power thereto Personall which were to be performed by the care and industrie of the partie and his corporall labour without expence of his purse Mixt which required both care of the minde and labour of the body and expence of the purse and are imposed as well in consideration of the thing as the person which every subject is to undergoe unlesse by the Law or by the indulgence of the Prince they are excused as some are excused by reason of old age some by young age some for their dignity some for their calling some for their state of body some for that they serve in the necessarie services of the common-wealth at home or abroad as Embassadours do some for that they are in necessary places of services for Gods Religion as cathedrall Churches and other Churches are some for that they are of good and necessary places for Seminaries for the common-wealth for learning and such othe imployments as Colledges Societies and Schooles of learning and nurture are Legates and Embassadours had immunitie from all publick servivices not onely the time of their embassage but also two years after their returne They were called Legates in that they were chosen as fit men out of many their person was sacred both at home and abroad so that no man might lay violent hands on them without breach of the Law of Nations Such as are Magistrates of Cities ought so to governe that no negligence may bee justly imputed unto them otherwise they are to answer it and that when their office is expired they give up a just account both of what they have received and what they have layd out and pay in the residue if there bee any Governours of Cities together with the consent of the Burgesses thereof may set downe such orders and decrees as are for the benefit and well ordering thereof which are to be observed of all those which are Inhabitants thereof and being once well and duely set downe are not to be reversed but to the good of the Citie or Commonalty New publick workes such as are good for the Common-weale every one may make without the leave of the Prince unlesse it be done for aemulation or cause of discord but for old works in which stands the security of the Common-wealth as Castles Towers Gates and Wals of Cities nothing is to be done or innovated in them without the Princes warrant neither is it lawfull for any man to grave his name in any publick Worke unlesse it be his at whose cost the worke is done Faires are authorized by Princes onely and are invented for trade of merchandize and uttering of wares which Country-men have cause to buy or sell and have their priviledges that no man in any Faire can be arrested for any private debt they were called Nundinae because that among the Romans they were anciently holden in one place or other upon every ninth day Hee that for ten years space intermitteth to use his Faire loseth the priviledge thereof If any make any promise to a Citie or Common-wealth to do any thing upon certain cause as that hee might be made Consul or that he would repair some part of the Citie that was burnt he shall by the Law be compelled to performe his promise for it is not meet that such promises should be satisfied with repentance Such as professe liberall Sciences in any Common-wealth whereby youth is instructed brought up to knowledge or be
to be otherwise then as Bellarmine hath disputed whose opinion it is that these Fasts may be fetch 't from the Apostles times and that one of these foure is mentioned by S. Luke in S. Pauls voyage to Rome Act. 27. though the Syriack Paraphrast in that place plainely setteth downe for the Greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 calling it a Fast of the Jewes not Christians But the great and learned Cardinall in his devotion to sacred Orders tooke any opportunitie to make these Solemnities in every circumstance Apostolicall Foure fit times in the yeare are limited for the same where also is set downe how they are to be qualified which are to bee ordered what triall or examination is to be had of them what age they are to be of and what gifts of body or minde they are to be indowed withall what Sacraments may bee reiterated what not that Ministers sons are not to succeed their Fathers in those benefices wherein their Fathers immediately before were Pastors or Governours lest happley thereby there might In what manner and with how much care and Christianitie these Fasts have been heretofore observed it may bee noted out of the second Councell of Mâ—lâ—aine Tit. 1. Decret 22. where the Bishop is to command that upon the Sunday before these Fasts Paroâ—ht non solùm solenne illud jejuntum denunctent verumetiam in sua unusquisque eorum parochtali Ecclesia supplicationes Litaniasque pie ac religiose vel intùs habeat vel prosequente fidelium multitudine foris Ecclesiam sicut moris est obeat ut Dei ope imploratâ tum Episcopus in eorum delectatu quibus ordenes conferet Spiritûs Sancti lumine illustretur tum illi quibus conseruntur in vitae sanctitate doctrina religiosisque virtutibus proficiant In the fourth Councell of Millaine is set downe out of Leo the forme of bidding these Fasts in the Church Quod sacrorum temporum ratio c. and afterwards Quartaigitur sexta feria Sabbato â—eâ—unemus frequentes in Cathedrali Parochialique Ecclesia ad litanias Orationémque conveniamus quò sacris illis Feriâ—â—â— cibo abstinentiores esse debemus â—o abundantsore eleemosynarum liberalitate erga Christs pauperes effusiores sinius tum Sabbato sub vesperum orationem Parochialem communem celebremus qua pro spe foelicitatis aterna ad quam per fidem currimus pro sacra ordinatione quam eo die a Reverendissimo Episcopo haberi solenne est pro â—is commodis qua singulorum annorum revolutione consequimur Deo omnipotents gratias agamus c. Tom. Concil 4. Edit Bin. These foure Fasts at this present day are observed in our owne Church and are known unto us by the name of Emberweekes And so I finde it in Thomas Becon by opinion of much people these dayes beene called Imber-dayes because that our elder Fathers would on these dayes eate no bread but Cakes made under ashes so that by the eating of that they reduced into their mindes that they were but ashes and so should turne againe and wist not how soone c. And that these Imber-dayes were duely and devoutly observed by our Ancestours wee may bee perswaded out of the Lawes of King Cnute where it is said Chap 16. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That every man observe the Fasts which are commanded with all earnest care whether it be the Imber Fast oâ— the Lent Fast or any other Fast And Chap. 17. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 where the Law saith That it is meete and right that at these Fasts all malice being laid aside all men should bee at peace And concerning the outward observance in the 43. Chap. it is said 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Evill it is that upon a fast day a man should eate any thing till Meale time and it is much worse if hee should eate flesh meate This was the Religion of our Ancestours and if ignorance could admit of so much devotion how much more would bee expected from these knowing times be claimed a succession or inheritance in the same that no bondmen or accountants men distorted or deformed in body bigamists or twice married men bee admitted to holy orders Of wandering Clerkes and how that they are not to be admitted to minister in an other Diocesse than where they are ordered without the Dimissorie Letters of the Bishop under whom they were ordered Of Archdeacons Archpriests Sacrists Vicars what they are and wherein their particular offices doe consist Of the office of Judges in generall and their power whether they be Delegats Legats à latere or Iudges ordinarie Of difference in Jurisdiction betweene Ministers Ministers and what obedience the inferiour Ministers are to yeeld unto their superiours Of Truce and Peace which Ecclesiasticall Judges are to procure that truces be kept from Saturday in the Evening untill Munday in the Morning and that there be no fighting from the first day of the Advent until the eight day after Twelfe tide and that warre likewise doe cease from the beginning of Lent untill the eight day after Easter under paine of Excommunication against him that presumeth to doe the contrarie and that in time of warre neither Priests Clerkes Merchant-men country men either going to the field or comming from the field or being in the field or the cattell with which they plough or the seed with which they sow be hurt or violated Judges before men enter into the dangerous events of Law are to perswade the parties litigant by private covenants and agreements to compound the controversie betweene them wherein if they prevaile not then the parties are to provide themselves of Advocates Proctors or Sindects according as they are private men or bodies politick to furnish their cause and direct them in proceeding If any Church hath beene hurt in any contract of bargain or sale or in demising of any Lease or by the Proctors negligence it is to be restored againe into her former state to alledge and plead that for it self which is agreeable to Law conscience The like grace is to be granted to all other Litigants whatsoever who have by feare or violence or any other like unjust cause beene hindered from the prosecution of their right If any seeing a suit like to be commenced against him doe either appeale before he be served with Proces or alienate away the thing wherupon the suit was like to grow he is to be compell'd to hold plea of the same cause before the Judge from whom he did appeale and to answer his adversarie as though still he were owner of the thing hee did in policie sell or alienate away Many times things which otherwise can have no speedy end by Law are compounded by Arbitrement Arbitrators ought to be odde in number that if they disagree that which is concluded by the greater part may prevaile An arbitrement is a power given by the parties litigant to some to heare and determine some matter in
if the usage and custome of the payment it selfe had not beene subject to the Ecclesiasticall cognisance for in vaine shall a man sue for that the Law allowes him no course to come by if it be denyed in the speciallest L. Finals ff de officio ejus cut mandata est turisd l. 3. ff de penu legata point belonging to that suite for this is undoubted Law where ever there is an authority or Iurisdiction granted there are in like manner granted all those things without which that authority or Jurisdiction cannot bee perfected or performed SECT 3. That customes of payment of tythes are triable onely at the Ecclesiasticall courts ANd therefore it is without question as Tythes by the said Statutes are onely recoverable by the Ecclesiasticall Law and not elsewhere so also the custome whereby they are paid is only triable at the Ecclesiasticall Law Otherwise this inconvenience will follow thereupon which in all other Lawes beside this of ours is a great absurditie Bartol l. nulli C. de iudicijs Glos. c. significaverunt de iudicijs that the connexitie of the cause which the Civilians call Continentiam causarum will be dismembred and disjoyned which by all good pollicie together with all her parts emergent or annexed ought to be handled discussed and determined before one and the selfe same Judge one I meane not in number but one in profession for otherwise I should by this assertion barre Appeales which is not mine intent Which course if it were held here in England causes should not be drawn peece-meale in such sort as Medea tore her brother limme-meale and one part of it carried to this Cicero pro Murena Court another to that like unto the rent lims of the childe that were cast here and there by Medea thereby to hinder her father from pursuing her but all should be ended in one and the selfe same Court which would be a great ease to the subject who now to his intolerable vexation and excessiue charges is compelled to runne from Court to Court and to gather up as it were one lim of his cause here and another there and yet happily in the end cannot make a whole and perfect body of it Beside it is a mighty disorder in a Common-wealth thus to jumble one Jurisdiction with another the very confusion as well of the one Law as the other for as Kingdomes are preserved by knowing their bounds and keeping their limits so also Jurisdictions are maintained and upheld by containing themselves within the lists or banks of their authoritie Further unles they will grant that there is an Ecclesiasticall custome as there is a Secular Custome and that the one is as well to be tried in the one Court as the other is in the other they will make their own Doctrine in the before rehearsed Prohibition voyde where they will have it certain that there is a Secular Custome if there be a Secular Custome then doubtlesse there is also an Ecclesiasticall or Spirituall custome for the word Secular is not put in that Glo 〈…〉 Clem. unica in verbo aternaliter de summa tâ—â—nit fide catholica place absolutely but relatively and the nature of Relatives is one to put another and one to remove another but in the Secular customes they barre the Civilian therefore they grant him the spirituall for of contrary things there are contrary reasons and contrary effects and what that which is proposed doth worke in that which is propounded L. Fin. §. plus autem de legatis 3. â—bâ— Angel the same againe that which is opposed doth worke in that which is opponed by which Rule as Temporall Lawyers are to deale in Temporall Customes and spirituall men are not to intermeddle therein so also Ecclesiasticall Lawyers are to deale in Ecclesiasticall causes and Temporall Lawyers are not to busie themselves thereabout And that this was the intent of the King when hee first received the Church into his protection with all the priviledges thereof may appeare hereby that having united both the Jurisdictions in his owne person he did not jumble them both together as now they are but kept them distinct one from the other not onely in authorising the Ecclesiasticall Courts that were before but also in using the very words and phrases that the Jurisdictionaries Ecclesiasticall did use every where in their writings even these words whereupon men now take hold to frame Prohibitions viz. according to the laudable customes and usages of the parish and places where such Tythes grow which were the words of Innocent the third in the Decretals upon the title of Tythe long before these Statutes were made or any other Statutes concerning the true payment of Tythes and Linwod in the same title of Tythes often useth the very selfe same words and phrases that the other doth so that if these words made no Prohibition before the Statute as I thinke it cannot well be shewed to the contrary neither ought they to doe it now since the Statute for that they are spoken still in the Church businesse and not in a temporall matter whose government although it be under one and the selfe same Prince that the temporall state is yet is it distinct from the same as ever it hath beene since there hath beene any setled forme of Church-government in any 1 Cor. 5. common-wealth as may appeare both by the example of S. Paul which never goeth to any temporall power to punish the incestuous person although there were sundry lawes then both in Greeke and Latin written of these matters but doth it by the spirituall sword alone and also by that that in matters of jarre for worldly causes betweene brother and brother hee forbids such as were new Christians to goe to 1 Cor. 6. law before Infidels but adviseth them rather to appoint Judges among themselves to decide such controversies which albeit in those dayes was meant as well of lay Christians as of the Ministers of the Gospell for that the number of them then was small and the causes of suit they had one against an other were not many and might easily be ended by one and the selfe same consistorie yet when the number of the Christians increased and the Church got some rest from persecution the Jurisdiction was againe divided and as there were secular Courts appointed by Princes wherein temporall mens causes and lay businesses were heard so there were also by the same authoritie erected Ecclesiasticall Courts and Bishops audiences wherein either Ecclesiasticall mens causes alone or such as they had against C. de Episcopali audienta â—ertia Lay men or Lay men against them were treated of and determined So that this was no new devise of Henry the eigth or Edward his Sonne that when they tooke upon them the supremacie over the Church as they had before over the common-wealth they did not mishmash both the States together and made one confused heape
writing that the trueth thereof may not appear as it is written suppresse Wils or Testaments or other like writings counterfeit other mens hands and Seals open any mans Will yet living and impart the secrets thereof to the parties adversarie unseale such instruments or writings as are left with him to keepe bequeath unto themselves Legacies in an other mans Will without his good will and privitie wash or clip gold or sowder therein any corrupt mettals make base silver money pretend themselves to be Noble men or Gentlemen whereas otherwise they are but base persons wilfully challenge unto themselves an other mans name or Arms cog and foist in womens labours or otherwise false births or adulterous children in steed of true and rightfull heires sell one and the same thing to two men carrie about false Pasports use false Measures or corrupt those that are true in some cases are punished by death in other by banishment imprisonment or cutting off both or one of the hands of the offender If any bearing any publick office abuse the same to gain and doth that for money which he ought to doe for thankes the Law ordereth that the offender shall be called to account for his supposed bribery and if hee be found guilty thereof fineth him foure fold to the party grieved and beside decreeth him to be banished Such as by ill devises and policies raise up the price of corne and other victuall or get the whole sale of any merchandise into their hands that they may sell it the dearer are punishable at the discretion of the Judge which according to the quality of the person and fact reacheth somtimes to banishment somtimes to death it selfe If any take purloyne or intervert to his own use any money dedicated to holy and publick uses or cause the same to be taken purloyned or interverted or if any take away any brasen table wherein any publick Lawes are graven or the bounds of any Lands are described or blot out or change any thing thereof or covenously pay in lesse money into the Exchequer than by right he ought to have done and hath not cleered with the Exchequer for the residue is to be condemned in the three double of that which is the residue and is beside to be banished If any to get an Office procure a number of hired voices besides the losse of the Office he sueth for his punishment is temporall banishment If any steale away any childe the body of any free-man and sell the same away or detein them against their will the fault is death If any slanderously charge an other with any false crime or wittingly beare any false witnesse against him or willingly give any wrong Sentence against him or on the contrary side dissembleth such faults as he knoweth and colludeth with the adversary or giveth over the prosecution of a crime hee hath undertaken to follow untill he have leave granted him by the Judge to desist from his accusation the same is to be punished with the like kinde of punishment that hee would have the other punished by unlesse he be acquitted there-from by the Princes pardon or that the Adversarie be dead In publick Judgements where the Offender appeares not Proces is to be awarded out against him for his appearance by a certain day to cleere himself at which day if he appeare not an Inventory is taken of his goods not to the intent they should be spent but that they should be reserved to his use if hee returne again within a year and cleere himselfe otherwise they become the Exchequers for ever how innocent soever the party afterwards appears to be If the Offender be present in Judgement and deny the fact he is to be confuted by witnesses or other proofe or if there be just matter of suspition to be put on the rack which albeit in matters of lesse danger is great cruelty yet in great and horrible crimes it is necessary If the Off 〈…〉 r have either confessed the crime or be convicted thereof then it followeth that the party convicted be punished either by death or otherwise according to the quality of the person or condition of the offence Punishments by death are foure Hanging Burning Heading and casting the Offender to be devoured by wilde beasts amongst which may be reckoned Exile or Banishment for that it takes away a mans liberty and bereaves him of his country which to every good subject is as dear unto him as his life it selfe Punishments which did not inflict death were many such as it pleased the Magistrate in his discretion to appoint The Law having passed upon the Offender in such sort as should be to the losse of his life liberty or countrie his goods became forthwith forfeited to the Prince such I mean as are of value but for the other the Law alloweth them the prisoner for his maintenance during the time of his imprisonment and satisfying such fees as are due to the Officers thereof which hath place where the offender hath no children otherwise the one halfe of his goods commeth to his children unlesse it be in case of Treason where all is confiscated They are also held for convict and guilty which either upon a guiltinesse of minde make away themselves before Judgement or stop their Adversaries with a bribe that they shall not follow the Law against them and their goods are no lesse confiscat than the others But it is otherwise in those which are banished for a time or to a certaine place or in such as the Law having once passed upon them are either in their life or after their death by the bounty and mercy of the Prince restored in which case they recover Goods Name and Honour the body being executed the carcasse for the most part is granted to buriall unlesse it be for matter of Treason or other such like offence If any have beene unjustly condemned either by the iniquity or unskilfulnesse of the Judge the law alloweth him an appeale that is a provocation to a higher Judge that he may hear the cause anew and reforme that which is judged a 〈…〉 e into better and if the higher Judge finde the partie grieved hath well appealed he is to reverse the former sentence otherwise to send the Offender back to the Judge from whence he came there to receive his punishment yet some persons there be from whom no appeale lyeth as from the Prince or Senate because they represent the Prince neither may hee appeale which hath renounced his appeale Appeales are made from lower Judges to higher and from him that is Delegated to him that did Delegate Appeales are to be made within ten dayes after sentence given or within ten dayes after the Notice is come to the party against whom the Sentence did passe unlesse there attend thereon a continuall griefe in which case a man may appeale so long as the griefe indures the time to aske Dimissorie Letters is thirty daies from the Sentence given