the triall of such businesse as belongeth to one Court to pul it to another Court specially when as the Court from whence it is drawne is more fit for it both in respect of the fulnesse of knowledge that that Court hath to deale in such businesse and also of the competencie of skill that is in the Iudges and professors of those Courts correspondent to these causes more than is in the Iudges and professors of the other Courts for the deciding and determining of these matters For albeit otherwise they are very wise and sufficient men in the vnderstanding of their owne profession yet haue they small skil or knowledge in matters pertaining to the Ciuile profession for that there is nothing written in their bookes of these matters more than is to be gathered out of a few Statutes of former time whose drist was not to open any doore vnto them to enter vpon the admirall profession but to preserue the Kings Iurisdiction from the Admirall incrochment as may by the said Statutes appeare wheras contrarily the Ciuile law hath sundry titles included in the bodie thereof concerning these kind of causes whereupon the interpreters of the Law haue largely commented others haue made seuerall Tractats thereof So that by all likelihood these men are more fit and better furnished to deale in this businesse than any men of any other profession as hauing beside the strength of their owne wit other mens helps and labors to rely vpon Besides this businesse many times concerns not only our owne countrimen but also strangers who are parties to the suit who are borne and doe liue in countries ordered by the Ciuile Law wherby they may be presumed they haue more skill and better liking of that Law than they can be thought to haue of our Lawes and our procéedings and therefore it were no indifferencie to call them from the trial of that Law which they in some part know and is the Law of their country as it is almost to all Christendem beside to the tryall of a Law which they know in no part is méere forraine vnto them specially when the Princes of this Land haue aunciently allowed the Ciuile Law to bee a Common Law in these cases as well to their owne subiects as it is to strangers Further the auocating away of causes in this sort from one Iurisdiction to another specially when the cause hath long depended in the Court from whence it is called insomuch as now it is ready to sentence or rather is past sentence and stands at execution cannot be but great iniurie to the subiect after so much labour lost and money spent in waste to begin his suite a new againe which is like to Sysiphus punishment who when he hath with all his might forced his stone vp to the top of the hill and so is as himselfe hopes at an end of his labour yet the stone rowles downe againe on him and so his second labour his strength being spent with the toile of the first is more grieuous than the former was which being semblably true in a poore Clyent who hath his cause in hearing there can bee no equitie in this fiction whereby a cause so néere ended should againe bee put vpon the Anuill as though it were still rough worke and new to bee begun And surely as there is no equitie in it so there is no possibilitie such a fiction should be maintained by Law for that it hath no ground of reason to rest his féete on For if this be graunted that such a fiction by Law may be made then one of these absurdities must needs follow either that a ship may ariue in a place where no water is to carrie it or if that it ariue according to the fiction either the people their houses their wealth shall be all ouerwhelmed in the water as the world was in Noahs Floud and Deucalions Deluge and so no bodie there shall be left aliue to make any bargaine or contract with the Mariners and shipmen that arriue there or that the people that dwell there shall walke vpon the water as people doe on land which Peter himselfe was not able to doe but had suncke if Christ had not reacht his hand vnto him and therefore far lesse possible for any other man to do So that it may be wel said these things standing as they do no such fiction can hold and that no action can be framed vpon it for as there is no Obligation of impossible things so there is no Action of things that neither Nature nor Reason will afford to be done neither is it to the purpose that the maintainers of these fictions doe say that in this case the place where the contract is made is not considerable which I take to be far otherwise for that when that themselues will conuey a Marine cause from the Sea vnto the Land they will lay it to be done in some speciall place of a Countie bee the place neuer so vnproper for such an action for that the foundation of these actions is the place where they were done as namely that they were done in the bodie of such a Countie or such a Countie and not vpon the maine sea or beneath the lowest bridge that is vpon any great riuer next the sea And therefore in two emulous Iurisdictions when they are so deuided as that one is assigned the sea the other the land the place of the action can in no sort be suppressed and another supplyed in the roome thereof Quod enim vna via prohibatur alia via non est permittendum quod prohibitum est directo prohibetur etiam per obliquum for if this were graunted then matter enough would be offered to one Iurisdiction to deuour vp the other and the Law would be easily eluded which to restraine either of these Iurisdictions to their owne place and to prouide that one in his greatnesse doe not swell vp against the other hath set either of them their bounds and lymits which they shall not passe which as it is the good prouision of the Law so ought either Iurisdiction in all obedience to submit it selfe therunto for that the diminishing of either of them is a wrong to the Prince from whom they are deriued who is no lesse Lord of the Sea than he is King of the Land and therefore in no sort such libertie must bee allowed to the one directly or indirectly as that it should bee a spoyle vnto the other which would easily come to passe if when as the law alloweth not any man to sue a Marine by the ordinarie course of the lawes of this land yet a man will follow it by an extraordinarie But where there is an vniformitie of Iurisdiction as that it is all by sea or all by land there may a thing be fained to be done in one place that was done in another place without any mans preiudice for that in this case the place is not
Kings Ecclesiasticall Courts here within the Land 111 What is a Prohibition and how many sorts are thereof 113 Of Admirall causes and in what sort they are hindered 115 Of Actions of Trouer and how far Fictions in Law are to be admitted and how far not 116. c. Wherein last Wils and Testaments are impeached 121 Of the care that Princes of this Realme haue had for the due payment of Tythes vnto the Church and the preseruing of the cognisance thereof vnto the Ecclesiasticall Courts of this Land both before the conquest and since 124 c. That the Statutes of the xxvii and xxxii of H. the viii and the 2. of Edward the vi c. 13. intended for the true paiment of Tythe and the preseruation of the triall therof vnto the Ecclesiasticall Courts are now turned to the hinderance of them both 128. c. That customes of payment of tythes are triable onely at the Ecclesiasticall courts 131. c. That the lymits and bounds of Parishes are of the Ecclesiasticall cognisance onely 135 That the clause of treble Damages in the 13. chapter 2. Edw. 6. is to be sued in the Ecclesiasticall courts only 137. That the naming of law or Statute in a statut doth not make it to be of the Temporall cognisance if the matter therof be Ecclesiasticall 139. c. How it comes to passe that when tythes were neuer clogged with custome prescription or composition vnder the Law they are clogged with the same vnder the Gospel and the causes thereof 142 Tythes anon after the dissolution of the Iewes policie were entertained by the Christians as a naturall prouision for the Ministers of the Gospell and leased out by God vnto the Iewes for the time of their policie only 142 That Charles Martell Father of King Pippin was the first that euer toke tythes from the Church and assigned them ouer to Lay men in fee and vpon what occasion 145 That to the imitation of this fact of Martell other Princes did the like euery one in his Kingdome 145 That this fact of Martel being done about the yeare 606. stood vnreuersed vntill the Lateran councell vnder Alexander Anno 1189. and that the reformation was then but in part 146 That Ecclesiasticall Iudges admit pleas in discharge of tithes and the maner of tything contrarie to the conceit that is had of them 149 Of Priuiledges and how they came in 150 That by reason of the frequence of priuiledges Statutes of Mortmaine came in 150 Of the beginning of cloistered monks in the west Church of Christendome and that the author thereof was one Benedict a Roman about the yeare 606. 153 That from Benedict and his order flowed all the rest of the orders of Religious men 153. c. That the admiration that these Religious men did breed of themselues in the head of Princes and Popes did procure appropriations of parsonages and immunities from Tiths 153 That the ouer conceit that men had of praier aboue preaching in the church was an adiuuant cause therunto 154 Whether Appropriations came first from Princes or Popes it is questionable 155 Exemptions from tythes brought in by Pope Paschall in fauour towards all sorts of Religious men 158 The same restrained by Pope Adrian and limited to the Cystertians Hospitallers Templers and the Knights of Saint Iohn of Ierusalem onely sauing to the other the Tythes of grounds laboured with their owne hands onely 159 That Innocent the third in the third Lateran Councell 1120. restrained those foure orders from immunitie of Tythes for such grounds as they should acquire after that councel which Henry the fourth imitating prouided by two Statutes of this Land against their immunitie 159 That if this reuocation of Immunitie by Innocent the third these two Acts of Henry the fourth were wel weighed they would ouerturne many of the priuiledges chalenged by the Statut of 31. H. 8. c. 13. for exemption of Monasterie Lands from Tithes 160 That Reall compositions for Tythes are the deuise of Ecclesiasticall Lawyers and are to be tried by the Ecclesiasticall Courts 160 That the curiositie of Schoolemen in their distinctions vpon Tythes haue helped forward Appropriations and Exemptions from Tythes 161 The opinion examined as concerning the quotitie of tithes whether it be Morall Ceremoniall or Iudiciall 161. c. That a Bishop being Lord of a Manor and prime founder of a Benefice could not in the first erection thereof by his owne capacitie retaine any Tythes in his hand and passe the same after in lay-fee to his tenants and so giue cause to his tenants of prescription against the parson 165 That Bishops indowments in the beginning stood not in Tythes but in finable Lands 167 That the turning of Bishops indowments into tenthes or tythes for impropriat parsonages is vnsutable to the first institution and very dangerous 168 That it had bin a worthy worke in the first reformers of Religion if they had returned to euery parish their owne parsonage and the dislike that God may seeme to haue conceiued of that 169 That tythes are a Parochian right and how Parishes in the Christian world came first to be instituted 171 That tythes of Minerals are due 174 That tythes of Turues be due 178 That the cognisance of barren heath and wast grounds belongeth to the Ecclesiasticall courts and what euery of them are 180 That the boughes of great trees are tythable and so also are the bodies but in the case of the Statute only 185 In what cases diffamatorie words belong to the Ecclesiastical and in what to the common law 191 That the suit of bastardie aswell in the principall as in the incident belongs vnto the Ecclesiasticall Law 199 The meanes to relieue the Ecclesiasticall courts 209 The right interpretation of Lawes and Statuts 209 Wherein the three Statutes for tythes may be supplied 212 What things may bee ordered by the Ciuile Law yet not prouided for by the common Law and others of like nature to those that are expressed 215 Of the necessitie of retaining the practise of the Ciuile and Ecclesiasticall law within this Land 224. c. FINIS A VIEW OF THE Ciuile and Ecclesiasticall Law also wherein it is straighted and wherein it may be relieued BEFORE I shew how necessarie it is for his Maiestie and the Realme to maintaine the Ciuile and Ecclesiasticall Law as they are now practised among vs in this Realme I will set down as it were in a briefe what the Ciuile and the Ecclesiasticall Lawes are then will I shew how farre forth they are here in vse and practise among vs thirdly wherein we are abridged and put beside the vse and possession thereof by the Common Lawe euen contrarie to the old practise thereof and the true sence and meaning of the Lawes of this Realme and the Statutes in this behalfe prouided and lastly wherein we might be relieued and admitted to the practise of many things in the Ciuile Law without preiudice to the Common Lawe and
testamentarie or due to the next of kinne or datiue all which are either to be confirmed or disposed of by the Magistrate Administrations of Tutors and Curators and how farre they are indangered by their office and wherein they are to interpose their authoritie and consent and for what actes 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 remooued if there appeare iust cause of suspition against him A Tutor is chiefly set ouer the person of the childe secondly ouer his goods but the Curator or Gardian is chiefly set ouer the goods and then ouer the person of the child children their father being dead by the order of the Iudge are to be brought vp with their mother vnlesse she hath fled vnto a second marriage which if she haue done then is he to be brought vp with some of his néerest kinne such as is knowne to be an honest man and will haue a care of his good education with whom the Iudge is to allowe him such maintenance as all his stock be not spent therein but euermore something be left against he come to full age When the time of Tutelage or curatorship is ended they are to render accompt vnto the Iudge what they haue receiued and how they haue expended the same and what residue is left and according as their proofes are either by oath or otherwise so the Iudge either alloweth or disalloweth the same If the Tutors or Curators proue bankrupt or vnable to satisfie the Pupill or Minor then lieth an action against their suerties for the satisfaction of the same and if both of them faile then lieth it against the Iudge or Magistrate if either he haue not receiued any caution at all of the Tutors or Curators or hath receiued an vnsufficient caution or vnsufficient suerties knowing them to be vnsufficient otherwise he is not to secure fortune and future cases of the child the Tutors or curators are to sell nothing of those things that are the childrens sauing such things which by kéeping cannot be kept vnlesse they haue the order or decrée of the Iudge thereunto which the Iudge is not to decrée vnlesse the child be so far in debt that it cannot be satisfied without selling some part of the other goods or there be some other like iust and necessarie cause like vnto this which may not be auoided As Minors haue curators and gouernors so also mad persons and prodigall persons are appointed to haue gouernors by law for that they can no more gouerne their owne state then the others can Prodigall persons are they that know no time nor end of spending but riot or lauish out their goods without all discretion Vnder the fift Section which compriseth in it nine bookes are conteyned last Wils and Testaments and who they be that can make the same and how many kinds thereof there be solemne or militarie and they eyther put in writing or else Nuncupatiue what is an vniust or void Will what is to be thought of those things which are found eyther to be blotted out or interlyned in a Will how Heires or Executors are to be instituted or substituted in wills and vnder what conditions they may be eyther instituted or substituted in the same What time an heire hath to deliberat after the Testators death before he proue the Will what is a military testament what priuiledges it hath how the inheritance may be eyther got or lost how Testaments are to be opened published and writ out what mens Testaments are not to be opened and published Of the punishment of such which a will being extant séeke by administration or some other like meanes to possesse the goods and of those which either forbid or compell any man to make a Will Of the power or right of Codicils of Legacies and bequests as what things may be bequeathed and what not to whom any thing may be bequeathed and of the signification of the words and things which doe appertaine vnto Legacies of yéerely and monethly legacies what time they be due in the beginning of the yeere or in the end which of them be pure and which conditionall Of the vse profit and benefit of any thing bequeathed of dwelling and workes of seruants bequeathed of Dowry bequeathed and what profit the Legatorie hath thereby Of choise or election bequeathed Of wheat wine oyle bequeathed and what is contained vnder euery of them Of ground furnished bequeathed and the instruments thereto belonging and what is to be vnderstood by that bequest Of store bequeathed in Latin called Penus what is comprised vnder that word of houshold stuffe bequeathed of education bringing vp bequeathed of gold siluer womens attire ornaments and such like bequeathed and what is to be vnderstood by euery of them how Legacies may be taken awaie Of thinges that are doubtfull in a Will and how they are to be vnderstood Of those things that are left for punishment sake in a will whether they be auaylable or otherwise Of those things which being bequeathed in a Will are counted notwithstanding as not bequeathed Of those things that are taken away from the Legatories in the will as vnworthy of them Of conditions demonstrations causes what force they haue and how they prouaile in a Will Of the Law Folcidia what it is and how men thereby are restrained for bequeathing any more then the thrée parts of their goods so that a fourth part thereof should still remainewith the heire if any man had receiued in Legacie more then he might by the law Folcidia that he should put in band to restore that if any vnknowen debt after should appeare so the same were true debt at what day a Legacie becomes due that is streight from the death of the Testator vnlesse it be left to be paied vpon a certaine or vncertain day or vnder a condition and that the heire enter into band to pay the legacie when the day comes or the condition happen and if he refuse to do it then the legatorie to be put in possession therof vntill the day or condition happen The sixt part spreading it selfe ouer seauen Bookes handleth matters of possession of goods or administration thereof not growing out of the Ciuill Law which only makes heires and giueth right of succession but out of the Pretorian Law or Law of conscience which in equitie calleth sundry to the succession of other mens goods by administration where there is no Will and in some cases where there is a Will as where the will is concealed or the Erecutor renounceth the will but if the will once appeare then the administration forthwith ceaseth In cases where Administrations are to be graunted the children of the deceased haue libertie to take it within a yeare after the death of the deceased and if they be further off of kind then they haue onely a hundred dayes
the rest of the matters that belong to the triall of the Ecclesiasticall Courts some are acknowledged to be absolutely in vse some other are challenged to be but in a certein measure in vse In absolute vse are those which neuer had any opposition against them which almost are those alone which belong to the Bishops degrée or order for all things which come within the compasse of the Ecclesiasticall Law are either belonging to the Bishops degrée or his Iurisdiction To his degrée or order belong the ordering of Ministers and Deacons the confirmation of Children the dedication of Churches and Churchyards and such like none of which haue béen challenged at any time to belong to any other Law The second sort is of them that belong to the Bishops iurisdiction which is partly voluntarie partly litigious Voluntarie is when those with whom the dealing is stand not against it but litigious it is when it is oppugned by the one part or the other Of this latter sort many things in sundry ages haue bin cald in question but yet rescued and recouered againe by the wise graue Iudges themselues who haue found the challenge of them to be vniust But what doth belong to either of them in priuat or what causes do appertaine to the whole Iurisdiction in generall because they haue bin alreadie particulerly set downe by that famous man of worthy memory Doctor Cosin in his learned Apologie for certaine Cos in in his Apologie part 1. c. 2. procéedings in Ecclesiasticall Courts I will not make a new catalogue of them but send the Reader for the knowledge thereof vnto his Booke but yet in my passage will I note which of them haue bin most chiefly oppugned and as occasion shall fall out speak to them And thus much as concerning those parts of the Ecclesiasticall Law which are here in vse with vs Now it followeth to shew whereby the exercise of that Iurisdiction which is granted to be of the Ciuile and Ecclesiasticall cognizance is defeated impeached by the Common Law of this Land which is the third part of this Diuision The impeachment therefore is by one of these meanes by Praemunire by Prohibition by Iniunction by Supersedeas by Indicauit or Quare impedit but because the fower last are nothing so frequent nor so harmfull as the others and that this Booke would grow into a huge volume if I should prosecute them all I will only treat of the two first and put ouer the rest vnto some better opportunitie A Praemunire therefore is a writ awarded out of the kings Bench against one who hath procured out any Bull or like processe of the Pope from Rome or elsewhere for any Ecclesiasticall place or preferment within this Realme or doth sue in any forteine Ecclesiasticall Court to defeat or impeach any Iudgement giuen in the Kings Court whereby the bodie of the offender is to be imprysoned during the Kings pleasure his goods forfeyted and his lands seized into the Kings hand so long as the offender liueth This writ was much in vse during the time the Bishop of Romes aucthoritie was in credit in this land and very necessary it was it should be so for being then two like principal authorities acknowledged within this Land the Spirituall in the Pope and the Temporall in the King the Spirituall 25. Edw. 2. 27. Edw. 3. ca. 1. 38 Edw. 3. ca. 1. 2. 7. Rich. 2. ca. 12. 13. Rich. 2. ca. 2. 2. H. 4. cap. 3. grew on so fast on the temporal that it was to be feared had not these statutes bin prouided to restraine the Popes interprises the spirituall Iurisdiction had deuoured vp the temporall as the temporall now on the contrary side hath almost swallowed vp the spiritual But since the forreine authoritie in Spirituall matters is abolished and eyther Iurisdiction is agnised to be setled wholy and only in the Prince of this land sundry wise mens opinion is there can lye no Praemunire by those Statutes at this day against any man exercising any subordinat Iurisdiction vnder the King whether the same be in the kings name or in his name who hath the same immediatly from the King for that now all Iurisdiction whether it be Temporall or Ecclesiasticall is the Kings and such Ecclesiasticall Lawes as now are in force are called the Kings Ecclesiasticall Lawes and the Kings Ecclesiasticall Courts For that the King cannot haue in himselfe a contrarietie of Iurisdiction fighting one against the other as it was in the case betwéene himselfe and the Pope although he may haue diuersitie of Iurisdiction within himselfe which for order sake and for auoyding of confusion in gouernment he may restraine to certeine seuerall kinds of causes and inflict punishment vpon those that shall go beyond the bounds or limits that are prescribed them but to take them as enemies or vnderminers of his state he can not for the question here is not who is head of the cause or Iurisdiction in controuersie but who is to hold plea thereof or exercise the Iurisdiction vnder that head the Ecclesiasticall or temporall Iudge Neyther is that to moue any man that the Statutes made in former time against such Prouisors which vexed the King and people of this land with such vniust suits doe not onely prouide against such processe as came from Rome but against all others that came elsewhere being like conditioned as they for that it was not the meaning of those Statutes or any of them thereby to taxe the Bishops Courts or any Consistory within this land for that none of them euer vsed such malepert sawsinesse against the King as to call the Iudgements of his Courts into question although they went far in strayning vpon those things and causes which were held to be of the Kings Temporall cognisance as may appeare by the Kings Prohibition thereon framed And beside the Archbishops Bishops and other Prelats of this Land in the greatest heat of all this businesse being then present in the Parliament whith the rest of the Nobilitie disauowed the Popes insolencie toward the King in this behalfe and assured him they would ought to stand with his Maiestie against the Pope in these and all other cases touching his Crowne and Regalitie as they were bound by their allegeance so that they being not guilty of these enterprises against the King but in as great a measure troubled in theyr owne Iurisdiction by the Pope as the King himselfe was in the right of his Crowne as may apppeare out of the course of the said Statutes The word Elsewhere can in no right sence be vnderstood of them or their Consistories although some of late time thinking all is good seruice to the Realme that is done for the aduancement of the Common Law and depressing of the Ciuill Law haue so interpreted it but wythout ground or warrant of the Statutes themselues who whollie make prouision against forreine authoritie and speak no word of domesticall proceedings But
A VIEW OF THE CIVILE AND ECCLESIASTICAL LAW AND wherein the practise of them is streitned and may be relieued within this Land Written by THOMAS RIDLEY Doctor of the Ciuile Law Iura sua vnicuique professioni sunt seruanda alioqui nihil aliud erit quà m omnium ordinum confusio c. peruenit 11. q. 1. LONDON Printed for the Company of Stationers Anno. 1607. To the High and Mightie Prince IAMES by the grace of God King of great Britaine Fraunce and Ireland Defender of the Faith c. MOST gratious Soueraigne since it hath pleased your Maiestie of your Princely care towards the Church and your common wealth to take knowledge of some differences that are in Iudicature betweene your Ecclesiasticall and Ciuile Law and the Temporall Law of this Land by which ioyntly your Maiesties State is managed next after your owne most rare prouidence and the wisdom of such whom it hath pleased your Highnesse to associat vnto your selfe in the great affaires of your Kingdome I haue bin bold to offer vnto your Maiestie this simple Treatise as that which doth lay out the cause of those Differences more particulerly than any man hitherto hath expressed the same In comming to which because I doe speake for those parts of your Maiesties Laws which are lesse knowen vnto your people and esteemed no otherwise of them than they see the practise thereof to be here within your Land I haue thought good as it were in a briefe to set out the whole sum of both the Lawes to the view of the people that they may see there is more worth in those for whom I speake than was by many conceiued to be so that the profession of the Ecclesiasticall and Ciuile Law may appeare to the world neither to be ilde nor vnfit for the State so far as it hath pleased the Royall predecessors of your Highnesse to giue entertainment vnto it and your Maiestie your selfe to admit of it In al which there is no other thing sought than that such grieuances as haue bin of late offered by one Iurisdiction vnto the other and in consequence to all your subiects who follow any suits in the Ciuile or Ecclesiasticall Courts may by your Princely wisdome be considered and by your authoritie be redressed if they be found to be grieuances indeed for now as things are neither Iurisdiction knowes their owne bounds but one snatcheth from the other in maner as in a batable ground lying betweene two Kingdomes but so that the weaker euer goeth to the worse and that which is mightier preuailes against the other the professors thereof being rather willing to giue Lawes and interpretations to other than to take or admit of any against themselues For which the weaker appeales vnto your Highnesse humbly desiring your Maiesties vpright and sincere Iudgement to discerne where the wrong is and to redresse it accordingly which is a worke worthy your Maiesties high consideration For as the Land is yours so also the Sea is yours the Church is vnder your Highnesse protection as a child is vnder his Tutor so that all the Lawes therof appertaine vnto your Maiesties care and comfort alike For which not onely the whole profession of your Ecclesiasticall and Ciuile Lawyers that now are but those which shall succeed in those places for euer hereafter vnto the worlds end will praise and magnifie your Maiesties gratious fauour towards them and wee that now are will pray to God for the long and happie prosperitie of your Highnesse and your posteritie ouer vs during the continuance of this Heauen and this Earth and after the passing away therof a perpetual fruition of the new Heauen and the new Earth wherein righteousnesse onely shall dwell for euer Your Maiesties most humble and dutifull Subiect Thomas Ridley To the Reader GENTLE Reader I confesse as I meditated this Treatise vpon mine owne motion as I doe sometimes matters of other argument when my leasure serues me thereto so also I doe not set it out to the view of the world vpon mine owne motion but was desirous it should haue bin keept in sauing that I must obey where I am bound The thing that gaue me cause to this meditation was that I saw many times how meanly men esteemed of the Ciuile and Ecclesiasticall Law of this Land valuing them by the practise of so much of them as we haue among vs. And therefore I thought good although not wholy to vnfold the riches of them yet to make shew of them folded vp in such sort as Mercers make shew of their silkes and veluets laid vp in whole peeces in their shops whereby it may be seene what great varietie they haue of all these kind of wares although the goodnesse of the ware it selfe cannot be discerned because it is foulded vp Beside seeing how frequēt prohibitions are in these daies in causes of either cognisance more than haue bin in former time I thought it not vnworthy my labour to inquire and see vpon what iust grounds they are raised vp in this multitude not of any humour I haue to gaine say the lawfull proceedings of any court which I reuerēce most readily acknowledge their authoritie in all things belonging to their place but to know and search out the truth of those suggestions that giue cause vnto these prohibitions For whenas such Lawes as are written of these businesses are written indifferently as well for the one Iurisdiction as the other no man is to be offended if the one Iurisdiction finding it selfe pressed by the partial interpretation as it supposeth of the other inquire the groūd of such interpretation labour to redresse it if it may be by the right interpretation therof To the end that either Iurisdiction may reteine their owne right not the one be ouertopt by the other as it seemeth to be at this day And that in such matters as they cōceiue of their owne right as depend of no other authoritie but of the Prince alone which is the thing only that is sought in this little Treatise And therfore the Reuerend Iudges of this Land are to be intreated that they will vouchsafe an equal interpretation of these matters as well to the one Iurisdiction as the other for so it is comely for them to doe and if they doe it not the other are not so dull senced but they can perceiue it nor so daunted but that they can fly for succour vnto him to whose high place and wisdome the deciding of these differences doth of right appertaine PENELOPE is said to haue had many wooers comely in person and eloquent in speech but she respected none but her owne VLISSES Such should be the mind of a Iudge that whatsoeuer other apparance or shew of truth be offered one saying this is the true sence of the Law and another that yet the Iudge should respect none but the very true germane and genuine sence thereof indeed Which if it were religiously or indifferently obserued in euery
from their lawful defence how persons of common trust as Marriners Inholders and such like are bound by Lawe to restore such things as they haue taken in charge to kéepe The second parte being distributed into viij bookes yéeldeth matter of Iudgement as who may be Iudge and who not where and before what Iudge euery one is to be conuented how many kindes of Iudgement there are Ciuile Criminall and mixt of both by what actions things that are ours by right of inheritance may be chalenged whether they be corporall or incorporall what action the Lawe affordes if any man conceale that is ours that we may come to the sight thereof what action lyeth against him who by euill persuasions or leude inticement hath corrupted another mans seruant or hauing run away by his ill counsell hath concealed him from his master what prouision the Lawe hath against Dice-play and such as kéepe Dicing houses how he is to be 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 bodie to be carried to buriall or to be buried in such places as he and his predecessors haue right vnto or to build a Tombe to that purpose and beautifie the same The third part imbracing xij bookes concerneth personall actions which rise not of cause of right or possession but of couenant and obligation as things credited or lent in a certaine summe the meanes how to recouer the same if it be denied that is by oath of the partie that denieth it vnlesse hee may bee conuicted either by witnesse or instrument that hee hath forsworne himselfe how many kinds of oaths there are voluntarie out of Iudgement necessarie exacted by the Iudge in doubtfull cases where otherwise there wanteth proofe to manifest the trueth Iudiciall such as one partie offereth to another in Iudgemēt and cannot be refused without iust cause and lastly that which the Iudge offereth to the plaintife as concerning the value of the thing which is in strife or the charges that he hath bin at in recouering of the same what exceptions there lyes against Obligations as that which for cause was giuen and cause did not follow that the cause was dishonest for which that is challenged that was giuen 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 certaine time and to a certaine vse actions for things pawned actions that either passengers haue against Mariners for the goods or ware that they haue brought into the ship or Mariners haue against Passengers for their fraught actions of eiectment wherein the passengers and Mariners are bound each to other for contribution of the losses of such things that haue béene cast into the sea in the time of a storme or tempest according to the qualitie and quantitie of the goods they haue in the ship actions whereby masters are bound to answere for their seruants contracts and fathers for their childrens in such things or negotiation as they haue put them in trust withall sauing where the child boroweth money without his fathers priuitie for riot and for such purpose as his father hath no vse thereof Remedies for women when by weaknesse of their sexes and lack of councell they haue inwrapt themselues in suertiship for other men action of compensation where a debt is demaunded for which an equiualent portion hath béene receiued in lieu or satisfaction thereof actions of mandate or commaundement wherein one hath done some worke or laid out some money vpon an other mans mandate or word and yet when hée requireth allowance thereof it is denied him actions of societie or fellowship wherein either the societie is required to bee maintained and the money put in common banck to be diuided actions of bargaine and sale either pure or conditionall the bargaine being once made the losse and gaine that after happeneth is the buyers vnlesse the seller retain some further right in the thing sold vnto himselfe actions of letting or setting either of the vse of a person or the vse of a thing vpon a certaine hyer actions of change and such like 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 giuen for the better securitie of the contract actions for restitution wherin a man hath béene deceiued in a bargaine more then 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 haue reuealed or promised some qualitie in the same which was not in it or where the thing sold hath béene euicted by an other out of the hands of the buyer himselfe vsing all iust defence of Law for himselfe actions for interest and vsurie and how many kinds thereof there bée that men vse by land lucratorie compensatorie and punitorie whereof the first is altogether vnlawfull the other two allowed where either iust gain ceaseth or iust losse followeth vpon that occasion that which is lent is not paide according to the day of couenant Sea vsurie otherwise called nautick vsurie is greater then land vsurie and yet allowed by Law for that the seafaring man takes vpon himselfe the daunger of the transporting thereof and securing the same at such place as it is appointed to be deliuered In deciding of matters of controuersie the Law procéeds sometimes by witnesses sometimes by instruments sometimes by presumptions where knowledge or ignorance of fact or Law is presumed Spousals are mutuall promises of a future marriage marriage is a lawfull coopling together of man and woman the companie and societie of the whole life the Communion of all Diuine 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 espousals and marriages is to bée considered who is to bee ioyned together at what yeares and by whose consent there doth wayte and attend vpon Marriages Ioyntures Dowries and such like and sometimes Diuorse which is so called of the diuersitie of the mindes of those that are married because such as are diuorsed goe one a diuerse way from the other The causes whereupon Diuorces growe are Adultery deadly hatred one toward another intollerable crueltie néerenesse of kindred and affinitie in degrées forbidden impotencie on the one side or the other actions of Dowrie after diuorce or seperation actions against a mans wife imbeaselling away his goodes actions against a husband disclayming his owne childe and his wife being with child if he make doubt therof meanes how and where she shall be kept vntill her deliuery 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 shewe of that which is not Tutelage and gouernment of children vnderage which is either
to take it in vnlesse those which are to take it are Infants mad deafe dumbe or blind in which cases there is a longer time assigned The Pretor graunted administration not only according to the tables of the Testament but many times euen against the tables of the Testament as where a childe is not disinherited in his Fathers will by plaine termes but passed ouer with silence onely as not remembred or that the childe was not borne at the time of his death so not knowne whether any such childe weare liuing or to be hoped for or not In which case if it doe after appeare the Mother is put in possession of that which is the childes part If there appeare no Will the Administration is committed in this order First the children of the deceased are admitted Secondly those that are next of kind in the Male line Thirdly those that are next of kind in the Female line which difference notwithstanding betweene Male Female at this day is taken away and they that are next of kind are equally admitted of their sex Lastly comes those which haue 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 and there is no prouision for it in Law yéeldeth the partie grieued an Interdict or Iniunction to hinder that which was intended to his preiudice As where one buyldeth an house contrarie to the vsuall and receiued forme of buylding to the iniurie of his neyghbour there lyeth an Iniunction de noui operis nunciatione which being once serued the offender is eyther to desist from his worke or to put in suerties he shall pull it downe agayne if he doe not within a verie short time auow the lawfulnes thereof Againe there lyeth an Iniunction where hurt is not yet done but feared to be done as where a house is ruinous or the eues or any outcast worke thereof hangeth dangerously ouer the way so that it is doubted it will fall and hurt some that passe by the owner or Lord thereof is to put in suertie to the Magistrate that if any be hurt or miscarrie thereby he shall answere for it If any cause the water of the ryuer or raine water to run an other course than before time it was wont to doe and that the neighbours are like to be preiudiced thereby the Law yeeldeth an Iniunction eyther to staie the worke that is intended or to secure the neyghbours for the hurt that is like to follow thereupon If Customers Collectors or Tolle-gatherers exact more subsidie or other like publike dueries then by Law they ought or distraine any mans goods vpon pretense thereof or staie in their hand such dueties as they haue receyued whereby the partie that hath paied it falleth into any forfeyture or that they repaire not the publike high wayes in which respect subsidies tributes and other such like dueties are giuen to Princes they are to be punished in the double value of that which they haue receiued and otherwise to be fined for their ill dealing in that behalfe In giftes which are purely giuen or vnder a day or condition and specially in those that are giuen in contemplation of death which are compared to Legacies themselues a right passeth without deliuerance and giueth sufficient matter of challenge vnto him to whom they are giuen The meanes or waies 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 gayning by the sea or ryuer by deliuerie or such like or be it by ciuill meanes as by getting the possession of any thing by good title and good faith so long as it will make a iust vsurpation or prescription by holding it as heire by holding it by a gift by taking it vp as a thing forsaken by holding it by legacie dowrie or inheritance by comming to it by sentence definitiue or interlocutory by confession of the aduersarie by cession of the partie by aucthoritie of the Iudge and the same haue béen fraudulently alienated by the debtors there lieth an Iniunction to put the partie iniured into possession All Iniunctions for the most part are prohibitorie and serue either to get or to kéepe or to recouer possession and are called commonly by the first name of the writ as where one is denyed the possession of inheritance belonging to him an Iniunction is graunted 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 fiat ei qui in possessionem missus est That he that hath gotten the custodie of the Will exhibite it That no priuat buylding or such like be set vp in a holie and sanctified place and if it be that it be puld downe againe That no Nusance be done in publike places or high wayes other then such as by the Law are allowable That publike high wayes be repaired That nothing be done in any Riuer or the banckes thereof whereby Ships or Barkes may not passe thereon That nothing be done in any common streame whereby the water should be forced to run otherwise this yeare then it did the last Sommer afore That it may be lawfull for euery man to sayle or rowe in any publike streame That the bankes of the ryuer bée repayred Of force and force armed where two are in possession of one thing and neyther of them came by the same by force or by secret slight or by sufferance of an other there lyeth an Iniunction for continuance of either of their possession called vti possidetis That a man may vse such priuat way as he hath vsed the yeare past and repayre the same without interruption of an other That no man turne away the daily running water or the water which fals in Sommer from an other mans house or ground to his hinderance That water courses in ryuers and other like places be maintained That such as haue right to draw water out of any spring or well be not forbid the vse thereof and that euery one haue frée libertie to cleanse purge and to repaire the same if there be any decay in it That no man be forbid to scoure purge or clense his priuies sincks or vaults That whatsoeuer is done by open force or secret subtilty be restored into place it was before such force or subtilty was done vnlesse the partie grieued release the same That he that holdes any thing at an other mans will restore the same vpon competent warning or knowledge giuen him thereof That a man may lop or cut the boughes of an other mans trée annoying his ground if after warning giuen thereof the owner thereof do not reforme it That it be lawful for a man to gather such fruits of his as fall from his owne trée into an other mans ground without any trespas
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 change of life and who is to succéed them in their goods and inheritance Of Bishops and Clerks that is that Byshops and Clerks be of good fame of competent learning and age and that they be ordeyned and promoted without Symonie or briberie or the iniurie of the present Incumbent And that there bée a set number of Clerkes in euery Church least the Church and Parishioners thereby be ouer charged The second Collation treateth of the Churches state that the lands of the Church be neyther sold aliened nor changed away but vpon necessitie or that they be let to farme for a time or vpon other iust cause no not with the Prince himselfe vnlesse the change be as good or better than that which he receyueth from the Church and if any man presume contrarie to this forme to change with the Church hée shall loose both the thing hee changed and the thing he would haue changed for it and both of them shall remayne in the right of the Church And that no man gyue or change a barren peece of the ground with the Church That Iudges and Rulers of Prouinces be made without gifts of their office power authoritie and stipend and that they sweare they shall so sincerly and vprightly execute their office as knowing they shall giue an accompt thereof to God and the King which oath they shall vndergo before the Bishop of the place and the chiefe men of that Prouince whether they are sent to be Iudges or Gouernors Of the Masters of Requests and their office which offer to the Prince suters Petitions and report them back from the Prince vnto the Iudges Of wicked and incestuous Marriages and that such as marrie within those degrees forfeit all that they haue vnto the Exchequer for that when they might make lawfull Marriages they rather choose to make vnlawfull Marriages The third Collation contayneth matter against Bawdes that they be not suffered in any place of the Romane Empire that being once warned to forbeare their wicked profession if they offend therein againe they die the death therefore If any man let any house to a bawd knowing him to be a bawd that he shall for fait x. li. to the Prince and his house shall be in danger to be confiscated Of Maiors and Gouernors of Cities that such be chosen that be honest people and men of credit and that no man of the Citie being thereto chosen refuse the same and that such as are therto chosen shall swears they will procéed in euery matter according to Law and conscience That there be a certaine number of Clerkes in euery Church and that it be neyther diminished nor increased and therfore that there be a translation of those that abound in one Church into an other Church that wanteth The precepts which Princes gaue to Rulers of Prouinces were these in offect that whereas themselues were fréely chosen thereunto they should in due sort and order go into their Prouinces that they should kéepe their hands pure from bribes that they should carefully looke vnto the Reuenues of the Exchequer and the peace and quiet estate of the Prouince represse outrages and rebellions procure that causes be ended with all indifferency and ordinary charges to foresée that neyther themselues nor any of their officers or vnderministers doe iniurie to the people least those that should help them doe hurt them To prouide that the people want not necessarie sustenance and kéepe the walls of the Citie in reparation that they punish offences according to the Law without respect to any mans priuiledge neyther admit any excuse in the examining or correcting of the same saue innocency only that they kéepe their Officers in order that they admit to their Counsell such as are good men and are milde towards such as are good and sharpe towards such as are euill that they afford not Protections to euery man neyther to any one longer than it is fit and conuenient it should be That where they remoue they vex not the Countrey men with more carryages then is néedfull that they suffer Churches and other like holy places to be a Sanctuarie to murtherers and other such like wicked men that they suffer not Lands to be sold without fine made to the Exchequer that they regard not Letters or rescripts contrarie to Law against the weale publicke vnlesse they be seconded That they suffer not the Prouince to be disquieted vnder pretence of Religion heresie or sch sme but if there bee any Canonicall or ordinarie thing to be done they aduise thereabout with the Bishop that they do not confiscat the goods of such as are condemned that they patronize no man vniustly that no man set his Armes or Cognusance vpon another mans Lands neither that any carrie any weapon vnlesse he be a Souldier What is an hereditarie porcion and how children are to succéed of such as deny their owne hand writing and how they are to be punished as well in personall as in reall actions and that such deniers after their deniall be not admitted to other exceptions and the taking away the thing in controuersie from him which denied the true owner to be Lord therof The fourth Collation handleth matters of Marriage and that marriage is made only by consent without either lying together or instruments of dowrie Of women that marry againe within the yeare of mourning which by Law in sundry sorts was punished for confusion of their issue that there be an equal proportion in the Dowrie and the Ioynture Of Diuorce and separation of marriages and for what causes by consent for impotencie for adulterie and that Noble women which after the death of their first husband being noble personages marrie to inferiour men shall loose the dignitie of their first husband and follow the condition of their second husband Of Appeales and within what time a man may appeale and from whom and to whom the appeale is to be made That none which lends money to an husbandman take his land to morgage and how much vsury money a man may take of an husbandman Of her that was brought to bed the eleuenth moneth after her husbands decease and that such as are borne in the beginning of the same moneth are to be accompted for Legitimat but such as are borne in the end therof are to bee holden for bastards Of instruments and their credit and that in euery instrument there be protochols left that is signes and notes of the time when such a contract was made and who was notarie and witnesses to the same and that after it bee written faire and ingrossed in a lidger or faire mundum Booke The fift Collation forbiddeth the alienacion or selling away of the immoueable possessions of the Church vnlesse it be done vnder certaine solemnities and then only when the moueable goods are not sufficient to pay the debts of the Church or holy place Further it prouideth that the name of the Prince for the time being be put
Iustices of Peace or other officers to that purpose appointed speedily dispatch the businesse of those which are of their Iurisdiction that such as come as strangers and forrainers out of other contries hauing no iust cause of their comming they send backe againe with their substance to such places as they came fro but if they be idle vagabonds and Rogues or other like valiant beggers they either driue them out of the place or compell them to labour yet euermore hauing regard to prouide for such as are honest poore old sick or impotent That Clerkes bee first conuented before their Ordinarie and that the Ordinarie do speedily end the matter that they may not be long absent from their benefices and that they be not drawne before temporall Iudges vnlesse the nature of the cause doe so require it as that it be a méere Ciuile cause or a criminal cause belonging wholy to the Temporal court wherein if a Clerke shall bee found guiltie he shall first bee depriued from his ministerie and then shall bee deliuered ouer into the Seculer hands but if the crime bee solely Ecclesiasticall the Bishop alone shall take knowledge thereof and punish it according as the Canons doe require That where one dieth without issue leauing behind him brethren of the whole bloud and brethren of the halfe bloud the brethren of the whole bloud haue the preheminence in the lands and goods of the deceased before the brethren of the halfe bloud whether they be of the fathers side or the mothers side That no man make Armour or sell it without the princes leaue vnlesse they bee kniues or other such like small weapons That proofe by witnesses was deuised to that end that the truth should not be concealed and yet all are not fit to be witnesses but such alone as are of honest name and fame and are without all supition of loue hatred or corruption and that their dispositions bee put in writing that after the witnesses bee published and their depositions bee knowne there bee no more production of witnesses vnlesse the partie sweare those proofes came a new vnto his knowledge If Parents giue profusely to one of their children the other notwithstanding shall haue their lawfull porcions vnlesse they be proued to be vnkinde towards their parents That women albeit they be debtors or creditors may be Tutors or Curators to their children and that there is not an oath to be exacted of them that they wil not marrie again so that they renounce their priuiledge graunted vnto them per Senatus consultū Velleian̄ and performe al other things as other Tutors doe That Gouernours of Prouinces are not to leaue their charges before they are called from thence by the Prince otherwise they incurre the danger of Treason That womens Dowries haue a priuiledge before all other kinds of debt that what Dowrie a woman had in her first marriage she shall haue the same in her second marriage neither shall it be lawfull for her father to diminish it if it return againe vnto his hand That a man shal not haue the propertie of his wiues dowrie neither a woman the propertie of that which is giuen her before marriage but the propertie of either of them shal come vnto their children yea though they marrie not againe Wils or Testaments made in the behoofe of children stand good howsoeuer imperfect otherwise they are but they are not auaileable for strāgers but strangers are they which are not children neither mattereth it whether the Will or Testament be writ by the fathers hand only or by some other body by his appointment as the father deuideth the goods among the children so they are to haue their parts Of Hereticks and that such are Hereticks which do refuse to receiue the holy Communion at the ministers hand in the Catholick Church that Hereticks are not to be admitted to roomes and places of Honor and that women Hereticks may not haue such priuiledge as other women haue in their Dowries That is called Mariners vsury that is wont to be lent to Mariners or Marchant men specially such as trade by sea which kind of lending the law calleth passage money in which kind of vsury a man cannot go beyond the 100. part That Churches inioy a 100. yards prescription That such things as are litigious during the controuersie are not to be sold away A Litigious thing is that whih is in suite betwéene the plaintife and defendant That while the suite dependeth there bee no Letters or Edict procured from the Prince concerning the cause in question but that the cause be decided according to the generall Lawes in vse That in Diuorces the children be brought vp with the innocent partie but at the charges of the nocent and that Diuorces bee not admitted but vpon causes in Law expressed That no woman whose husband is in warfare or otherwise absent shall marry againe before she haue certaine intelligence of the death of her former husband either from the Captaine vnder whom he serued or from the gouernour of the place where he died and if any woman marrie againe without such certain intelligence how long soeuer otherwise her husband be absent from her both she and he who married her shall be punished as adulterers and if her former husband after such marriage retorne back againe she shall returne againe to her former husband if hee will receiue her otherwise she shall liue apart from them both If any man beat his wife for any other cause than for which he may be iustly seuered or diuorced from her hee shall for such iniurie be punished If any man conceiue a iealousie against his wife as that she vseth any other man more familiarly then is méete shee should let him thrée seuerall times admonish him thereof before thrée honest and substanciall men and if after such admonition he be found to commune with her let him be accused of adultery before such Iudge who hath authoritie to correct such offences The ninth and last Collation containeth 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 discendent then the ascendent be preferred before the collaterall vnlesse they be brethren or sisters of the whole blood who are to succéed together with the ascendent but in ascendents those are first called which are in the next degrée to the deceased then after those which are in a more remote degrée that in collaterals all be equally admitted which are in the same degrée 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 vnlesse it be to the Princes house or to or with an other like Religious place and that in equall goodnesse quantitie or that it be for the redemption of Prysoners and that they be not let out to any priuat
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
the ministring of the Sacraments in Baptisme and the vse of imposition of hands all which is set out vnder fiue distinctions The Decretals are Canonicall Epistles written either by the Pope alone or by the Pope and Cardinals at the instance or suite of some one or more for the ordering and determining of some matter in controuersie and haue the authoritie of a law in themselues Of the Decretals there bee thrée volumes according to the number of the authors which did deuise and publish them The first volume of the Decretals was gathered together by Ramundus Barcinius Chaplein to Gregory the ninth at his the said Gregories commaundement about the yeare 1231. and published by him to be read in scholes and vsed for Law in all Ecclesiasticall Courts The sext is the worke of Boniface the eight methoded by him about the yeare 1298. by which as hee added something to the ordinance of his predecessors so hee tooke away many things that were superfluous and contrarie to themselues and retained the rest The third volume of the Decretals are called the Clementines because they were made by Pope Clement the fift of that name and published by him in the Councell of Vienna about the yeare of grace 1308. To these may be added the Extrauagants of Iohn the xxij and some other Bishops of Rome whose authors are not knowne and are as Nouell constitutions vnto the rest Euery of these former volumes are diuided into fiue Bookes and containe in a manner one and the same titles whereof the first in euery of them is the title of the blessed Trinitie and of the Catholicke faith wherein is set downe by euery of them a particuler beliefe diuers in words but all one in substance with the auncient Symbols or beliefe of the old Orthodox or Catholicke Church Secondly there commeth in place the treatie of Rescripts Constitutions and Customes and the authoritie of them and when they are to be taken for Law after followeth the meanes whereby the greater gouernours of the Church as namely Archbishops Bishops and such like come vnto their roome which was in two sorts according as the parties place or degrée was when he was called vnto the roome as if he were vnder the degrée of a Bishop and was called to bee Bishop or being a Bishop was called to be an Archbishop or to be the Pope himselfe he was thereto to bee elected by the Deane and Chapiter of the Church where he was to bee Bishop or by the Colledge of the Cardinals in the Popedome but if he were alreadie a Bishop or an Archbishop and were to be preferred vnto any other Bishopricke or Archbishoprick then was he to be required by the church he was desired â—nto and not elected which in the Law was called Postulation after Postulation followed translation by the superior to the Sea to the which he was postulated or required after Election followed Corfirmation and Consecration of him that was elected which both were to be done in a time limited by the Canons otherwise the partie elected lost his right therein Bishops and other beneficed men sundry times vpon sundry occasions resigne their benefices and therefore is set downe what a renunciation or resignation is who is to renounce and into whose hands and vpon what causes a man may renounce his benefice or bishopricke and because vnder-Ministers are oftentimes negligent in their Cure that the people in the meane time may not bee defrauded of Diuine Seruice the Sacraments and the food of the word of God it is prouided that the Bishop shal supply the negligence of such Ministers as are vnderneath him in his Iurisdiction besides because holy orders are not to be giuen but by imposition of hands with prayer and fasting foure fit times in the yeare are for the same lymitted where also is set downe how they are to bee qualified which are to be ordered what triall or examination is to bee had of them what age they are to bee of and what gifts of body or mind they are to be indowed withall what Sacraments may be reiterated what not that Ministers sons are not to succéed their fathers in those benefices wherein their fathers immediatly before were Pastors or gouernours lest happily thereby there might be claimed a succession or inheritance in the same that no bondmen or accomptants men distorted or deformed in body bigamists or twice married men be admitted to holy orders Of wandering Clarkes and how that they are not to be admitted to minister in another Diocesse then where they are ordered without the Dimissarie Letters of the bishop vnder whom they were ordered Of Archdeacons Archpriests Sacrists vicars what they are and wherin their particular offices do consist Of the office of Iudges in generall and their power whether they bee Delegats Legats a latere or Iudges ordinarie Of difference in Iurisdiction betwéene Ministers Ministers and what obedience the inferior Ministers are to yéeld vnto their superiors Of Truce and Peace which Ecclesiastical Iudges are to procure that truces be kept from Saturday in the euening vntill Monday in the morning and that there be no fighting from the first day of the Aduent vntill the eight day after Twelfe tide and that warre likewise doe cease from the beginning of Lent vntill the eight day after Easter vnder paine of Excommunication against him that presumeth to doe the contrarie and that in time of war neither Priests Clarkes Marchant 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 Iudges before men enter into the dangerous euents of Law are to persuad the parties litigant by priuat couenants and agréement to compound the controuersie betwéen them wherein if they preuaile not then the parties are to prouide themselues of Aduocats Proctors or Sindects according as they are priuat men or bodies politicke to furnish their cause and direct them in procéeding If any Church hath bin hurt in any contract of bargaine 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 selfe which is agréeable to Law and conscience The like grace is to be graunted to all other Litigants whatsoeuer who haue by feare or violence or any other like vniust cause béene hindered from the prosecution of their right If any séeing a suite like to be commenced against him do either appeale before he be serued with Processe or alienat away the thing whereupon the suite was like to grow he is to bee compeld to hold plee of the same cause before the Iudge from whom he did appeale and to answere his aduersarie as though still he were owner of the thing he did in policie sell or alienat away Many times things which otherwise can haue no spéedy end by Law are compounded by arbiterment Arbitrators
ought to be od in number that if they disagrée that which is concluded by the greater part may preuaile An arbiterment is a power giuen by the parties Litigant to some to heare and determine some matter in suite betwéene them to pronounce vpon the same to which they are to bind themselues vnder a penaltie to stand The first Booke hauing set out the first obiect of the Law which standeth in the persons who make vp the Iudgemēt as in the person of the Iudge himselfe the Aduocats Proctors and Clients there followeth in the second booke the second obiect of the same which is the Iudgemēts themselues which are to be commenced by a Citation that in a competent court fit for the same by a Libell offered vp in the court by the plaintife to the Iudge which is to containe the sum of that which is required in Iudgemēt where if the defendant do againe reconuent the plaintife he is to answere albeit the defendant be not of that Iurisdiction the libel being admitted the defendant is to ioyne issue and yet before either of them enter any further into the cause that there may be faire and sincere dealing in the same that all suspition of malitious dealing therin may be taken away each of them are to take an oath the Plaintife that hee doth not of any malice prosecute the suite against the Defendant or the Defendant of any malice maintain the suit against the plaintife but that they verily beléeue their cause is good and that they hope they shall be able to prooue the one his libell the other his exceptions if he shall put in any into the Court. The cause being begun delaies are often graunted if either there come any Holyday betwéene or any other like iust cause bee offered as for producing of witnesses and such like If there be no iust cause of delay then the Iudge is to goe on in the due course of Law prouided alwaies that more bee not demaunded by the plaintife than is due and that the cause possessarie bee handled before the petitorie and that hee that is spoiled bee first and before all things restored to that thing or place whereof he was spoyled or from which he was put fro yea though he haue nothing els to alledge for himselfe beside the bare spoliation it selfe If the one side or other wilfully or deceiptfully decline Iudgement the Iudge is to put the other in possession of that which is in demaund or at the lest to sequester the fruits and possessions of that which is in controuersie but if both parties appeare and ioyne issue affirmatiuely then is it but a question of Law and not a fact neither doth there remaine ought els to bee done by the Iudge but that hee giue sentence against him that hath confessed it and put his sentence in execucion But if issue be ioyned negatiuely then is the plaintife to proue his Libell so far as it consists in fact by witnesses which are to be compelled by Law if they will not come or appeare voluntarily by publicke and priuat instruments by presumptions by coniectures by oath which being done the Defendant in like sort is to bee admitted to proue his exceptions and cleere his prescription if hee bee able to alledge any in which hee is Plaintife neither is hee bound thereto before the Plaintife haue perfected and prooued his owne right After proofes are brought on either side and the same thoroughly disputed on by the Aduocats the Iudge is to giue sentence which he is to frame according to the Libell and proofes formerly deduced in the cause The sentence being giuen Execution is to bee awarded vnlesse there be an appeale made from it within ten daies by the Law but fiftéene daies by the Statute of this Land from the time the partie against whom sentence was giuen had knowledge thereof or vnlesse it be appealed incontinently at the acts and in writing before a publike notary or at the lest the partie against whom the sentence proceeded within due time take his iourney toward the higher Iudge to prosecute the same by whom the former sentence is eyther confirmed or infirmed in the second instance The third booke conteyneth such Ciuile matters and causes as are liable to the Ecclesiasticall Courts as the honest life or conuersation of Clerks and theyr comely comportment in all their demeanor with what women they are to cohabit and dwell with whereby they may be frée from all suspition of ill life and with whom not which of them may be maried by the law of the Canons and which not in what cases they may be allowed to be non resident and in what not and how such as are non residents may be called home vnto their cure and if they retorne not vpon processe sent out against them how they are to be punished namely by depriuation or sequestration of the fruits and commodities of their benefice Prebends and dignities are preferments for Clerkes but not for such as are idle or absent from the same without iust cause but if any Clerk or Minister be sicke and his disease be curable he is to receiue the benefit of his prebend or dignitie in his absence as though he were present but if it be contagious or vncurable then is he to be put from the exercise of his office and a helper or coadiutor to be ioyned vnto him and they both to be mayntained of his stipend Prebends or dignities are to be got by institution which are to be giuen by the Bishop or his Chauncelor or such other as haue Episcopall iurisdiction without which neither any benefice is lawfully gotten or can lawfully be reteyned Benefices not void ought neyther to be granted neyther to be promised but such as are void ought to be granted wythin sixe monthes after knowledge of the voydance thereof otherwise the grant of them diuolueth commeth vnto the superiour he that causeth himselfe to be instituted into a benefice the Incumbent therof being aliue himselfe is to be deposed from his orders While any Benefice or Bishopricke is void nothing is to be changed or innouated in it and such gifts sales or changes of Ecclesiastical things as are made by the Bishop or any other like Prelate wythout the consent of the Chapiter are void in Law and such Benefices as do become void are to be bestowed without any impayring or diminution of the same In what case the goods and possessions of the Church may be alienated and in what not and that such things as are alienated be alienated by the greater part of the Chapiter otherwise the alienation is void What goods of the Church may be lent what sold what bought what changed what demised or let to lease what Morgaged or let to pawne After these follow Tractats of last Wils and Testaments of succession by way of Intestate of Burials of Tythes first Fruits and Offerings Of Monkes and their state in sundry sorts of the
man might change his name so might he change his signe so that it were not done in fraud and deceipt but after it was forbydden both that any man should change his C. de mutatione noīs l. 1. ff de Falsis l. falsi nominis name because it was not thought it could be done with any good meaning and that no man should beare Armes of his owne authoritie and therefore Officers were appointed vnder Princes as I haue said who should giue Armes to such as deserued well of the common wealth eyther in warre or peace for albeit in the beginning Armes and Colors were proper to men of warre to auoid confusion in the hoast to discerne one companie from an other yet when it came to be a matter of honour it was challenged no lesse by men of peace than by men of warre for true in déed is that saying of Tully Parua sunt foris arma nisi est consilium domi and the Emperour speaking of the benefit that Aduocates and L. aduocati C. de Aduocatis diuersorū iudiciorum such like bring to states and Common wealthes sayth thus Aduocates which breake the doubtfull fates of causes and with the strength of their defence sundry times aswell in publike causes as in priuat raise vp those that are falne and reléeue those which are wearied doe no lesse good vnto mankind than if by warre and wounds they saued their parents and Countrey for we saith he doe not count that they only doe warre for our Empire which doe labour with sword shield and Target but also our Aduocates for indeed the Aduocates or Patrons of causes do warre which by confidence of their glorious voyce doe defend the hope life and posteritie of such as be in danger thus sayeth he and thereupon commeth that distinction of Castrense peculium Et quasi castrense peculium signifying thereby that albeit Counsellors to the state Lawyers and such like be not actuall warriers yet they are representiue warriers and do no lesse serue the Common wealth than they The Souldiour riseth betime in the morning that he may goe forth to his exploit the Aduocate that he may prouide for his Clyents cause he wakes by the trumpet the other by the cocke he ordereth the battaile the other his Clyents businesse he taketh care his tents be not taken the other that his Clyents cause be not ouerthrowne so then eyther of them is a warriour the one abroade in the field the other at home in the City Beside Bartol treateth in that place what things are borne in Armes eyther naturall as beastes birdes fyshes mountaynes trées flowres sunne moone stars or such like or artificiall not taken from thinges eristent as colours simple and mixt deuided by halfes or quarters or by lines direct crosse ouerthwart or such other then how each of these is to be carried wherein art must followe nature that euery thing figured be borne according to the nature of that which it doth figure and not otherwise and therefore as in Ensignes flagges or standerds the speare or shaft goeth before the streamer or colours follow after so the face of euery creature that is figured or described in the banner or hatchment must looke vnto the shaft or speare vnlesse a man beare two creatures one looking toward the other for then this obseruation hath no place for vaine it is to coniecture where things are certein otherwise it is the nature of the face to goe before and the body to follow after and the like reason is of the parts of euery creature which is likewise borne in Armor which are distinguished by before and behinde whose site must be such that the head looke to the speare otherwise would it seeme to goe back like a monster but if the forepart alone of any creature be borne in a Scuchin as often it happeneth that men giue onely a Lion Beare or buls head for their Armes then must not the head directly looke vnto the shaft but aside further euery of these creatures be so described in the coate as his vigor and generositie be best set out whether it be a feirce or sauage beast or a milde or gentle creature But for colours his rule is that the noblest colour be put in the first part of the field howsoeuer the coate be deuided quarter or pale And of Colours the golden colour is the chiefest as that which doth figure the Sunne which is the fountaine of light which is most acceptable to euery mans eye The next is Purple or Red which doth figure the fire that is the highest noblest of the foure Elements and next the sunne it selfe in dignitie The 3. is Blew of the Heralds called Azure Ceruleus in Latin which figureth the Ayre which is a cléere and transparant body and most capable of light and commeth in nobility next after the fier The 4. is white which commeth néere to the Light and therefore is more noble than Blacke that draweth néere to darknesse therefore is the basest of all Colours And for mixt colours as euery one hath more or lesse of White or Blacke so eyther they are nobler or baser in reputation or degrée And thus much in generall as concerning the knowledge of Armes Now followeth what the Ciuile Law holdeth as concerning Princes and other Honorable persons and their successions and places which a graue Iudge of this land Nedham 37. Hen. 6. fol. 21. hath anciently acknowledged to belong vnto the Ciuile Law By the Ciuile Law all power commeth from God as the Scripture teacheth and among powers the two greatest are the Empire and the Priesthood for as God hath ordeyned the one to rule the outward man and to bring all his actions within the compasse of reason so to establish Common wealthes and to order the same So also hath he prouided the other for the instruction of the inward man and the planting of Religion among men By the Empire I vnderstand not only the Empire of Rome which sometimes bare rule ouer most part of the world at the lest ten mightie Kingdomes which now are growen into particuler Empires and Monarchies themselues but also euery seuerall Kingdome which acknowledgeth no other Emperor than his owne Soueraigne for howsoeuer they differ in name and title yet is the office it selfe all one For euery one of them is Gods immediat Vycar vpon earth in their owne kingdomes for matters appertayning vnto Iustice Whereupon the Ciuile Law giues them verie honorable tytles sometimes tearming them ff de leg 2. l. ff de legat 2. l. C. 4. tit 13. C. 1. tit 3. l. 56. C. 1. tit 1. l. 5. Gods vpon earth for the great authoritie they haue ouer other men vnder God sometimes Ministers of God for the seruice they do God in their Common wealthes sometimes most holie and most Religious for the care they ought to haue about Religion and correcting of those things which are done against the feare of
Prohibitions of fact or of men are both infinit and odious for that there is well nigh no matter either Ciuile or Ecclesiasticall bee it neuer so cléere or absolute but they clog it and incumber it with some Prohibition and the matter they conteine is for the most part absurd and friuolous as shall first appeare in Marine causes and after in Ecclesiasticall matters For Marine causes it is well knowne that all such bargaines and contracts or as it were contracts as are made by any persons either in any forraine country or any Hauen or créeke of the Sea or any shoare thereof as far as the greatest winter waue doth run out or vpon any great riuer to the first bridge next to the Sea for any marchandize ship tackle or other negotiation belonging to the Sea or to any marchandize brought from beyond the Sea is and ought to bee of the admirall cognisance and so euermore hath béene since the Court of the Admiraltie was first erected and yet the Common Lawyers to defeate the Ciuile Law of the tryall thereof haue deuised sundry actions and among the rest an action of Trouer whereby they faine that a ship arriued in Cheapside or some other like place within the citie and there the Plaintife and Defendant meeting together bargained vpon some marchandize or other like sea-faring matter by which fiction they pretend the bargaine now is to bee tryed in the Common Law and not by the Ciuile Law as being done in the bodie of a Countie and not vpon the maine Sea or any other place subiect to the Admirall Iurisdiction But that this fiction or any other like qualitied to this should haue any such force as to worke any effect in Law I will shew first by the definition of a fiction then by those things that are necessarily attendant thereon A fiction thereof is defined by Bartol whom also the rest â— si is qui proemptore § 3. ff de vsucapiomb ibi Bartol of the Doctors doe follow to be an assumption of the Law vpon an vntruth for a truth in a certaine thing possible to be done and yet not done vpon which fiction the Doctors hold there wait two things the one is Equitie the other Possibilitie For first vnlesse there because why that which is not should be famed to be and that which is should bee accounted not to bee and that which is done in one sort or at one time or in one place should be imagined to be done in another sort at another time and in another place there is no reason a fiction should be admitted for the Law alloweth no man to come to extraordinarie remedies but where ordinarie remedies faile and therefore if that which is in controuersie may be obtained by any other meanes than by a fiction a fiction is not to be afforded but if ordinarie means cannot be had then fictions may be entertained to supply the L. in causa ff de numrib defect of the ordinarie meanes that thereby although the truth bee otherwise yet the effect of the Law may bee all one So then the Law faineth an infant not yet borne to bee borne for his benefit for that happily without that fiction L. qui in vtero penult de statu hoÌ„â—â— ff the poore infant should be remedilesse of his Filiall portion Legacie or other right in conscience due vnto him so Nephewes and Neeces succéed together with their Vncles and L. 1. § si â—iliuâ— ff de suis legit l. 2. l. 3. l. 4 C. â—od l Galâ—us 29 § bene § videndum ff de liberis posthum◠§ cum filius Instâ—t de haered abâ—nâ—â—â—ato L. veriâ— est § vl ff pro socio L. action § publicatione ff eod L. absenteÌ„ ff de verhoruÌ„ signâ—ficat L. lege Cornel ff ff de testamenâ—is Aunts in their Grandfathers and Grandmothers goods for such portion as should haue come to their parents if they had liued for that the Law presumeth them to represent the person of their parents so he that is dead is fained to be aliue to many constructions in Law speciall if many of his equals in age be aliue at the time that hee is fained to bee aliue so he that is aliue and is in captiuitie for the vpholding of his will which he made in libertie is fained to be dead the houre before he became captiue so he that is obstinat and will not appeare in Iudgement being lawfully called thereto is fained to be present that neither himselfe should take benefit out of his obstinacie neither his aduersarie hurt by his absence and iniurie Infinite more examples might be brought of this sort but it would be too long to run thorough them al and this shall suffice to haue shewed that the Law approueth fictions but where there is equitie for it and the Law it selfe otherwise cannot haue her effect And as the Law cannot L. Gallus § fi eius ff de liberis posthumis l. fi pater § sicum ff de adopt Horat. de Arte poetica procéed to a fiction without equitie so neither can it faine any thing that is impossible for Art euermore followeth Nature and therfore if a man would faine disproportionable things such as the Painter did in Horace who made Boares wallow in the waues of the Sea and Dolphins wander in the woods these fictions in no sence can be admitted for that they are such as neither nature nor reason can brooke In like sort if a man would faine one to liue who were dead two hundred yeares since so that it were not possible that he or Bartol l. si is quâ— proemptore num 21. 22. 23. sâ—…quentib any of his equals should liue at that age this would not hold in Law for that it is aboue the age the Law doth presume any man may liue by Nature although the Law doth presume such as dye in war for defence of their country for the better incouragement of those that are aliue to venter themselues in like seruice for the common wealth to liue for euer because their fame doth florish for euer and vpon like reason the Law will not suffer any person to adopt another for his child who is either elder or equal in age vnto himselfe or is not so far vnder his yeares as by course of Nature he might bee his naturall child indéed so much the Law detesteth impossibilities that it will not suffer a man to fame that which in common Sence and Nature might not be true indéed Now if these things be true as in all reason and shew by former precedents they appeare to be true I would gladly see how actions of Trouer whereby the Common Lawyers translate vnto themselues matters of Marine triall if they be squared to these Rules of Fictions can be maintained for first to speake of equitie which the Law requires in these manner of proceedings what equitie can it be to take away
giuing money to the Iudge or to the party grieued And this I take to be a far better limitation for either Law hauing the ground of the Ciuil Law and a statute of the Common Law and common reason it selfe for it than the other deuise is which so distinguisheth this businesse as still it makes it rest in the mouth of the Iudge which cause of Diffamation is méere spiritual and which not which were not to be done if there were cléere dealing in the matter for Lawes are so to be made as that as little as may be bee left to the discretion of the Iudge but all be expressed as far as the nature of the cause will giue leaue which albeit it be hard to doe for the varietie of the cases that euery day happen neuer thought on before yet that is to be laboured so far as may be for this libertie of leauing many things to the Iudges discretion is many times great occasion of confusion in Iudicature saying sometimes this and sometimes that as his priuat humor shall lead him and therefore a plaine distinction betwéene both the Lawes were best that euery man may see and say what is proper to either of them And thus far as concerning matters of Diffamation Now followeth that I speake of matters of Bastardie Bastardie is an vnlawfull state of birth disabled by diuine and humane Lawes to succéed 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 bee sole and vnmarried 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 bee sole and vnmaried for that either they are alreadie precontracted to some other or that they be in so néere a degrée of affinitie or consanguinitie one to the other that the marriage would bee damnable and the issue thereof vnlawfull 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 Ciuile Law Filij Naturales because they were begot by such as they held for their wiues and yet were not their wiues who might be legitimat by sundry waies as hereafter shall be shewed Some other begot vpon single women if they were begot in vage lust without any purpose to hold such a one for a Concubine but vpon a desire onely to satisfie a mans present Lust whether they were begotten by married men or single men were called Spurij who for the most part are putatiue children and their Father is not otherwise knowne than by the mothers confession which sometimes saith true sometimes otherwise Isidor saith they were so called because they were borne out of puritie for that such kinde of lust is contrarie to holy Matrimonie whose bed is vndefiled and therefore the other is corrupt and abhominable But where any was borne of a woman single or married that prostituted her selfe to euery mans pleasure and made publicke profession of her selfe to be an harlot such as are they whom the Law calleth Scorta these were called Manzeres Those which were begotten of maried women were cald Nothi because they séemed to be his childrē whom the mariage doth shew but are not no otherwise than some feauers are called Nothae that is bastard feauers because they immitate the tertian or quartan Feauer in heat and other accidents but yet are neither tertians or quartans as the learned Phisitians wel know but these are counted so to be bastards if either the husband were so long absent from his wife as by no possibilitie of Nature the child could be his or that the Adulterer and Adulteresse were so knowne to kéepe company together as that by iust account of time it could not fall out to be any other mans child but the Adulterers himselfe and yet in these very cases within this Realme vnlesse the husband bee all the time of the impossibilitie beyond the Seas the Rule of the Law holds true Pater is est quem nuptia demonstrant The most nefarious and last kind of bastards are they whom the Law calleth Incestuosi which are begot betwéene ascendents and descendents in infinitum and betwéen collaterals so far as the Diuine Prohibition and the right interpretation thereof doth stretch it selfe The effects of these sorts of bastardies are diuerse First it staineth the bloud for that he that is a bastard can neither challenge Honour nor Armes from the Father or Mother for that he was begot and borne out of Matrimonie which is the first step to Honour and therefore the Apostle calleth Marriage honorable whereupon it must follow that the opposite thereof is shame for albeit it be no sin for a bastard to be a bastard yet is it a defect in him to be such a one and a thing easily subiect to reproch 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 vnlesse there be some other collaterall prouision made for the same for that all such Lawes and statutes as are made to any of these purposes were intended to the benefit of such as are Legitimat and are next of kin by lawfull succession and not by vnlawfull coniunction To Legitimat him that was a bastard when there could no clame be made vnto his birthright but by grace among the Romans were sundry wayes first where the Father of the Bastard they being both single persons married the woman by whom he begot the child secondly where the father did by his last will and Testament or by some publike instrument subscribed by witnesse name him to be his naturall and lawfull sonne or simply his sonne without the addition of any of these two words base or natural therwithall did make him his heyre which could not be but in such cases only where the father had no other naturall lawfull child left aliue Thirdly whereas the Prince by his rescript or the Senate by their decrée did doe any one that credyt as to grant them the fauor of legitimation which was done for the most part in such cases only wheras eyther the father of the child or the child himselfe offered himselfe to be attendant on the Court or Prince In this Realme none of the foresaid legitimations take place as far as I can learne but only that which is done by Parliament and that verie rarely for beside those that King Henry the 8. did in the varietie and mutabilitie of his mind 28. 8. cap. 7. towards his owne issue I think there cannot be many examples shewed for as for that which is wrought by subsequent 1. Mar. 1. parliamen cap. 1. Marriage being a thing auntiently pressed by the Clergie of this Land to be admytted in like sort as it is vsed in other Lands where
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
analogie in them and therefore the Reuerend Iudges are to be intreated because they challenge vnto themselues the opening of the statuts alone albeit peraduenture that be yet sub Iudice where the Statute of Ecclesiasticall causes is to bee interpreted that they would recall such exorbitant interpretations as haue of late gone abroad vpon these Statutes and restore them to their auncient sence and vnderstanding No man can so cunningly cloake an interpretation but another will be as cunning as he to spy it out and then the discredit will be the Lawes A small error saith Aristotle in the beginning is Lib. 1. Poliâ—iâ— a great one in the end and he that goeth out of the way a little the longer hee goeth on the further he is off from the place his voyage was to and therefore the spedier returne into the way againe is best The old Prouerbe is He that goeth plainly goeth surely which may be best verified in the exposition of the Law if any where else for commonly men offend no where more daungerously than vnder the authoritie of the Law and therefore one saith very well that There are two salts required in a Iudge the one of knowledge whereby hee may haue skill to Iudge vprightly the other of conscience whereby hee may bee willing to iudge according to that as his skill leadeth him vnto both which being in the graue Iudges it is not to bee doubted but they will bee easily induced to reuiue their owne and their predecessors interpretations and reduce such exorbitant expositions as haue scaped out thereof vnto the right and naturall sence thereof which if perhaps they shall bee loath to doe for because it makes for them or for some other like partiall respect then humble supplication is to bee made vnto his Maiestie himselfe will be pleased to giue the right sence of those things which are in controuersie betwéene both the Iurisdictions for his Maiestie by communicating his authoritie to his Iudges to expound his Lawes doth not thereby abdicate the same from himselfe but that he may assume it againe vnto him when and as often as him pleaseth Whose interpretation in that is to bee preferred before theirs first that his interpretation is impartial as hee that will not weaken his left side to make strong his right for so are these Iurisdictions as they are referred vnto his politicke bodie but will afford them equall grace and fauour that he may haue like vse of them both either in â— 1. num 8. C. 〈◊〉 L. 1. num â— C eod l omnes popuâ—â— ff de in stit iure fortaine or domesticall businesse as occasion shall serue then that his Iudges interpretation maketh right only to them betwéene whom the cause is but his highnesse exposition is a Law vnto all from which it is not lawfull for any subtect to recéed neither is reuersable by any but by himselfe vpon a second cogitation or him that hath like authoritie as himselfe hath and therefore most fit to be interposed betweene Iurisdiction and Iurisdiction that the one partie bee not Iudge against the other in his owne cause which is both absurd and dangerous And let this suffice for the right interpretation of Lawes and Statuts now it followeth that I speake something of the supplies that may be made to the defects that are in the same It is not to be doubted but it was the full minde intent of the Law-makers which made those thrée Statutes to infeoffe the Ecclesiastical Courts in the inheritance of all those causes that are comprised in those Statutes saue those that are by speciall name exempted and did by the said Statute as it were deliuer vnto them full and quiet possession of the same for euen so sundry braunches of the said Statute doe shew as I haue elswhere made it manifest and that there hath growne question vpon many points thereof and that the professors of the Ecclesiasticall law haue béene interrupted in the quiet possession thereof commeth of the vnperfect penning of the same and not of any iust title or claime that may be made by the porfessors of the other Law therunto but this is a thing not only proper to these thrée Statuts but also Common to all other Statutes which are writ of any Ecclesiasticall causes within this Land which notwithstanding may be remedied if it séem good vnto his sacred Maiestie the rest of the wisdom of the land assembled together at any time for the making of wholsome Lawes and the reforming of the same by supply of a few words in some places or periods that are defectiue and yet kéeping the true meaning and sense of the same As for example in the statute of the two and thirtieth of Henry the eight in the § wherefore néere the beginning of the same Statute the Statute ordering that all persons of this Realme and other of the Kings Dominions shall truely and effectually set out and pay all and singuler Tythes according to the lawfull customes and vsages of the Parishes where they grow and become due because there is a question made where these customes and vsages shall bee tried in the Ecclesiasticall or Temporall Law if these or the like words had beene added to the same to be prooued before an Ecclesiastical Iudge after the form of the Ecclesiastical Law not elswhere the whole matter had bin cleere for that point And whereas againe in the end of the same Statute there be some good words tending to the appropriating of these matters of Tythes and Oblations and other Ecclesiasticall duties to the Ecclesiasticall Courts as that the remedie for them shall be had in the Spirituall Court according to the ordinance of the first part of that Act and not otherwise yet because there is no penaltie to that act busie men easily make a breach thereinto for that Lawes without penalties for the most part are weake and of no force if therefore this or the like supply were made if any man sue for these or like duties in any other Court than in the Kings Ecclesiasticall Court the partie so suing to forseit the treble value of that which he sued for to be recouered in the kings Ecclesiasticall Court where it ought to haue beene commenced by the way of Libell or Articles the one halfe therof shal be to the king the other to the partie grieued many of these suits would easily be met withall Neither is it to the purpose that this is matter of mony and Lay fee that should be in this sort forfeited and therefore is not Regularly to bee sued for in the Ecclesiasticall Court yet because the cause is Ecclesiastical vpon which the matter of forfaiture ariseth it may bee verie well allowed Ne continentiae causarum diuidantur and for that ordinarily euery Iurisdiction that is wronged may defend it selfe with a penaltie beside we do by the like right in the Ecclesiasticall courts recouer expenses of suits in Law fées of Aduocats and