translate unto themselves matters of Marine triall if they be squared to these Rules of Fictions can bee maintained for first to speake of equitie which the Law requires in these manner of proceedings what equitie can it be to take away the triall of such businesse as belongeth to one Court and to pull it to an other 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 Judges Professours of those Courts correspondent to these causes more than is in the Judges and Professours of the other Courts for the deciding and determining of these matters For albeit otherwise they are very wise and sufficient men in the understanding of their owne profession yet have they small skill or knowledge in matters pertaining to the Civile 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 drift was not to open any doore unto them to enter upon the admirall profession but to preserue the Kings Jurisdiction from the Admirall incroachment as may by the said Statutes appeare whereas contrarily the Civile Law hath sundry titles included in the body thereof concerning these kindes of causes whereupon the Interpreters of the Law have largely commented and others have made severall Tractates 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 having besides the strength of their owne wit other mens helpes and labours to relie upon Besides this businesse many times concerns not only our owne countrey-men but also strangers who are parties to the suit who are borne and doe live in countries ordered by the Civile Law whereby they may bee presumed to have more skill and better liking of that Law than they can bee thought to have of our Lawes and our proceedings and therefore it were no indifferencie to call them from the triall of that Law which they in some part know and is the Law of their countrey as it is almost to all Christendome besides to the triall of a Law which they know in no part and is meere forraine unto them specially when the Princes of this Land have anciently allowed the Civile Law to be a Common Law in these causes as well to their owne subjects as it is to strangers Further the avocating away of causes in this sort from one Jurisdiction to another specially when the cause hath long depended in the Court from whence it is called insomuch as now it is ready for sentence or rather is past sentence and stands at execution cannot be but great injurie to the subject after so much labour lost and money spent in waste to begin his suit anew againe which is like to Sysiphus punishment who when he hath with all his might forced his stone up to the top of the hill and so is as himselfe hopes at an end of his labour yet the stone rowles downe again on him and so his second labour his strength being spent with the toyle of the first is more grievous than the former was which being semblably true in a poore Clyent who hath his cause in hearing there can be no equity in this fiction whereby a cause so neere ended should againe be put upon the Anvill as though it were still rough worke and new to be begun And surely as there is no equity in it so there is no possibility such a fiction should be maintained by Law for that it hath no ground of reason to rest his feete on For if this be granted that such a fiction by Law may be made then one of these absurdities must needes follow either that a shippe may arive in a place where no water is to carry it or if that it arive according to the fiction either the people their houses and their wealth shall be all overwhelmed in the water as the world was in Noahs Floud Ducalions Deluge and so no body there shall be left alive to make any bargain or contract with the Mariners Shipmen that arive there or that the people that dwell there shall walk upon 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 unto him and therefore far lesse possible for any other man to doe So that it may bee well said these things standing as they doe no such fiction can hold and that no action can be framed upon 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 farre otherwise for that when that themselves will convey a Marine cause from the Sea unto the Land they will lay it to bee done in some speciall place of a Countrie bee the place never so unproper 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 body of such a Country or such a Country and not upon the maine Sea or beneath the lowest bridge that is upon any great river next the Sea And therfore in two emulous Jurisdictions when they are so divided 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 una via prohibetur alia via non est permittendum quod prohibitum est directo prohibetur etiam per obliguum for if this were granted then matter enough would bee offered to one Jurisdiction to devour up the other and the Law would be easily eluded which to restraine either of these Jurisdictions to their owne place and to provide that one in his greatnesse doe not swell up against the other hath set either of them their bounds and limits which they shall not passe which as it is the good provision of the Law so ought either Jurisdiction in all obedience to submit it selfe thereunto for that the diminishing of either of them is a wrong to the Prince from whom they are derived who is no lesse Lord of the Sea than hee is King of the Land and therefore in no sort such liberty must be allowed to the one directly or indirectly as that it should be a spoile unto the other which would easily come to passe if when as the Law alloweth not any man to sue a Marine matter by the ordinary course of the Lawes of this Land yet a man will follow it by an extraordinary But where there is an
punished which being put in trust to measure any mans ground makes a false report of the measure thereof that no man hinder a corse of a dead body to be carried to buriall or to be buried in such places as hee and his predecessours have right unto or to build a Tombe to that purpose and beautifie the same SECT 5. That the third part stretcheth it selfe into nine bookes and what they contein THe third part imbracing nine books concerneth personall actions which rise not of cause of right or possession but of covenant and obligation as things credited or lent in a certain summe the means how to recover the same if it be denied that is by oath of the partie that denieth it unlesse he may be convicted either by witnesse or instrument that he hath forsworne himselfe how many kinds of oaths there are voluntary out of Judgement necessarie exacted by the Judge in doubtfull cases where otherwise there wanteth proofe to manifest the trueth Judiciall such as one partie offereth to another in Judgement and cannot be refused without just cause and lastly that which the Judge offereth to the plaintife as concerning the value of the thing which is in strife or the charges that he hath beene at in recovering of the same what exceptions there lyes against Obligations as that which for cause was given and cause did not follow that the cause was dishonest for which that is challenged that was given that the summe was not due which was paid and therefore not to be exacted but to be repaid actions for things lent for a certain time and to a certain use actions for things pawned actions that either passengers have against Marriners for the goods or ware that they have brought into the ship or Marriners have against Passengers for their fraught actions of ejectment wherein the passengers and Marriners are bound each to other for contribution of the losses of such things that have beene cast into the sea in the time of a storme or tempest according to the qualitie or quantitie of the goods they have in the ship actions whereby masters are bound to answer for their servants contracts and fathers for their children in such things or negotiation as they have put them in trust withall saving where the childe borrowed money without his fathers privitie for riot and for such purpose as his father hath no use thereof Remedies for women when by weaknesse of their sexes and lack of counsell they have inwrapt themselves in suretiship for other men action of compensation where a debt is demanded for which an equivalent portion hath beene received in lieu or satisfaction thereof actions of mandate or commandement wherein one hath done some worke or laid out some money upon an other mans mandate or word and yet when he requireth allowance thereof it is denied him actions of societie or fellowship wherein either the societie is required to be maintained or the money put in common banck to be divided actions of bargain and sale either pure or conditionall the bargain being once made the losse and gaine that after happeneth is the buyers unlesse the seller retain some further right in the thing sold unto himselfe actions of letting or setting either of the use of a person or the use of a thing upon a certain hyer actions of change and such like SECT 6. That the fourth part conteineth eight bookes and the contents thereof THe fourth part being digested into eight bookes ministreth actions for such things as are accessarie to contracts such as pawnes and pledges are which are given for the better securitie of the contract actions for restitution wherein a man hath beene deceived in a bargain more than the halfe value of the thing sold or wherein the seller hath concealed some fault in the thing sold which he ought by Law to have revealed or promised some qualitie in the same which was not in it or where the thing sold hath beene evicted by an other out of the hands of the buyer himselfe using all just defence of Law for himselfe actions for interest and usurie and how many kinds thereof there be that men use by land Lucratory Compensatorie and Punitorie whereof the first is altogether unlawfull the other two allowed where either just gain ceaseth or just losse followeth upon that occasion that which is lent is not payd according to the day of covenant Sea-usurie otherwise called nautick usurie is greater than land-usurie and yet allowed by Law for that the seafaring man takes upon himselfe the danger of the transporting thereof and securing the same at such place as it is appointed to be delivered In deciding of matters of controversie the Law proceeds somtimes by witnesses somtimes by instruments somtimes by presumptions where knowledge or ignorance of fact or Law is presumed Spousals are mutuall promises of a future marriage marriage is a lawfull coupling together of man and woman the company and societie of the whole life the Communion of all Divine and humane rites and things and of one and the same house wrought by the consent and mutuall good will of the one towards the other in elpousals and marriages is to be considered who is to be joyned together at what years and by whose consent there doth wait and attend upon Marriages Jointures Dowries and such like and sometimes Divorce which Divorce what and why so called is so called of the diversitie of the mindes of those that are married because such as are divorced goe one a divers way from the other The causes whereupon Divorces The causes of Divorces grow are Adultery deadly hatred one toward an other intolerable cruelty neernesse of kinred and affinitie in degrees forbidden impotencie on the one side or the other actions of Dowrie after divorce or separation actions against a mans wife imbeaselling away his goods actions against a husband disclayming his owne childe and his wife being with childe if he make doubt thereof means how and where she shall be kept untill her delivery so that no false birth shall be put in place of the true childe or that she abuse not her husband or the next heire with a false shew of that which is not Tutelage government of children under age which is either testamentarie or due to the next of kinne or dative all which are either to be confirmed or disposed of by the Magistrate Administrations of Tutors and Curators and how farre they are endangered by their office and wherein they are to interpose their authoritie and consent and for what acts the pupils or minors may be sued done by the tutors or curators how any may be argued to be a suspected tutor or curator and how and by whom he may be removed if there appear just cause of suspition against him A tutor is chiefly set over the person of the childe secondly over his goods but the Curator or Guardian is chiefly set over the goods and then over the person of the
passage will I note which of them have beene most chiefly oppugned and as occasion shall fall out speake of them PART III. CHAP. I. SECT 1. How the Jurisdiction which is of Civile and Ecclesiasticall cognisance is impeached by the Common Law of this Land and first of the impeachment thereof by the Statute of Praemunire facias ANd thus much as concerning those parts of the Ecclesiasticall Law which are here in use with us Now it followeth to shew wherby the exercise of that Jurisdiction which is granted to bee of the Civile and Ecclesiasticall cognisance is defeated and impeached by the Common Law of this Land which is the third part of this Division The impeachment therefore is by one of these meanes by Praemunire by Prohibition by Injunction by Supersedeas by Indicavit or Quare impedit but because the foure 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 onely treat of the two first and put over the rest unto some better opportunitie A Praemunire therefore is a writ awarded out of the Kings What is a Praemunire Bench against one who hath procured out any Bull or like proces of the Pope from Rome or else-where for any Ecclesiasticall place or preferment within this Realme or doth sue in any forreine Ecclesiasticall Court to defeat or impeach any Judgement given in the Kings Court whereby the body of the offender is to bee imprisoned during the Kings pleasure his goods forfeited and his lands seized into the Kings hand so long as the offender liveth This writ was much in use during the time the Bishop of Rome's authoritie was in credit in this land and very necessarie it was it should be so for being then two like principall authorities acknowledged within this Land the Spirituall in the Pope and the Temporall in the King the Spirituall 25. Ed. 2. 27. Ed. 3 c. 1. 38 Ed. 3. c 1. 2. 7. Rich. 2. c. 12. 13. Rich 2. c. 2. 2. H. 4 cap. 3. grew on so fast on the Temporall that it was to be feared had not * Neverthelesse even out of these Statutes have our Professours of the Common Law wrought many dangers to the Jurisdiction Ecclesiasticall threatning the punishment conteined in the Statute Ann. 27. Edw. 3. 38. ejusdem almost to every thing that the Court Christian dealeth in pretending all things dealt with in those Courts to be the disherison of the Crowne from the which and none other fountaine all Ecclesiasticall Jurisdiction is now derived whereas in trueth Sir Thomas Smith saith very rightly and charitably that the uniting of the Supremacie Ecclesiasticall and Temporall in the King utterly voideth the use of all those Statutes Nam cessante ratione cessat lex and whatsoever is now wrought or threatned against the Jurisdiction Ecclesiasticall is but in emulation of one Court to an other and by consequent a derogation of that authority from which all Jurisdiction is now derived and the maintenance whereof was by those Princes especially purposed D. Cowel in the Interpreter these Statutes beene provided to restraine the Popes enterprises the spirituall Jurisdiction had devoured up the temporall as the temporall now on the contrary side hath almost swallowed up the spirituall But since the forreine authoritie in spirituall matters is abolished and either Jurisdiction is agnised to be setled wholly and onely 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 subordinate Jurisdiction under the King whether the same bee in the Kings name or in his name who hath the same immediatly from the King for that now all Jurisdiction 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 have in himselfe a contrarietie of Jurisdiction fighting one against the other as it was in the case betweene himselfe and the Pope although hee may have diversitie of Jurisdiction within himselfe which for order sake and for avoyding of confusion in government hee may restraine to certaine severall kindes of causes and inflict punishment upon those that shall goe beyond the bounds or limits that are prescribed them but to take them as enimies or underminers of his state he cannot for the question here is not who is head of the cause or Jurisdiction in controversie but who is to hold plea thereof or exercise the Jurisdiction under that head the Ecclesiasticall or Temporall Judge Neither is that to move any man that the Statutes made in former times against such Provisors which vexed the King and people of this land with such unjust suits doe not only provide against such Proces as came from Rome but against all others that came else-where being like conditioned as they for that it was not the meaning of those Statutes or any of them therby to taxe the Bishops Courts or any Consistory within this land for that none of them ever used such malepert sawcinesse against the King as to call the Judgements of his Courts into question although they went farre in strayning upon 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 prelates of this Land in the greatest heat of all this businesse being then present in the Parliament with the rest of the Nobility disavowed the Popes insolencie toward the King in this behalfe and assured him they would and ought to stand with his Majestie 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 their owne jurisdiction by the Pope as the King himselfe was in the right of his Crowne as may appeare out of the course of the said Statutes The word Elsewhere can in no right sence be understood of them or in their Consistories although Et le stat est in Curia Romana vel alibi le quel alibi est a entender en la Court l'Euesque issint que si hōme soit sue la pur chose que appent al Commen ley il aura Praemunire Fitzherb Nat. Bre. Tit. Praemunire facias some of late time thinking all is good service to the Realme that is done for the advancement of the Common Law and depressing of the Civile Law have so interpreted it but without ground or warrant of the Statutes themselves who wholly make provision against forreine authority and speake no word of domesticall proceedings But the same word Elsewhere is to be meant and conceived of the places of remove the Popes used in those dayes being
Prohibitions of fact or of men are both infinite and odious for that there is well nigh no matter either Civile or Ecclesiasticall be it never so cleere or absolute but they clog and incumber it with some Prohibition and the matter they containe is for the most part absurd and frivolous as shall first appeare in marine causes and after in Ecclesiasticall matters SECT 3. Conoerning the common Lawyers action of Trover and what is meant in the Law by a Fiction to shew how the Civile Jurisdiction is impeached in matters of Admiraltie 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 countrey or any haven or creeke of the Sea or any shore thereof as farre as the greatest winter wave doth runne out or upon any great river to the first bridge next to the Sea for any merchandize ship tackle or other negotiation belonging to the Sea or to any merchandize brought from beyond the Sea is and ought to be of the admirall cognisance and so evermore hath beene since the Court of the Admiraltie was first erected and yet the common Lawyers to defeate the Civile Law of the triall thereof have devised sundry actions and among the rest an action of Trover whereby they faine that a ship arrived in Cheapfide or some other like place within the Citie and there the Plaintife and Defendant meeting together bargained upon some merchandize or other like sea-faring matter by which fiction they pretend the bargaine now is to be tryed in the Common Law and not by the Civile Law as being done in the body of a Countie and not upon the maine Sea or any other place subject to the Admirall Jurisdiction But that this fiction or any other like qualitied to this should have 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 therfore is defined by Bartol whom also the rest L◠si is qui pro emptore §. 3. ff de usucapionib ibi Bartol of the Doctors doe follow to be an assumption of the Law upon an untruth for a truth in a certaine thing possible to be done and yet not done upon which fiction the Doctors hold there waite two things the one is Equitie the other Possibility For First unlesse there be cause why that which is not should be fained to be and that which is should bee accounted not to be and that which is done in one sort or at one time or in one place should be imagined to be done in an other sort at an other time and in an other place there is no reason a fiction should be admitted for the Law alloweth no man to come to extraordinary remedies but where ordinarie remedies faile and therefore if that which is in controversie may bee obtained by any other meanes than by a fiction a fiction is not to be afforded but if ordinary meanes cannot be had then fictions may be entertained L. in causa ff de minorib to supply the defect of the ordinary meanes that thereby although the truth be otherwise yet the effect of the Law may be all one So then the Law faineth an infant not yet borne to bee L. qui in utero penult de statu hominis ff L. 1. §. fi filius ff de suis et legit l. 2 l. 3. l. 4. C. eod l. Gallus 29. §. benè et §. videndum ff de liberis et posthumis § cùm filius Instit de haered an ante nato L. veris est §. ult ff pro socio L. actione §. publicatione ff eod L. absentem ff de verborum significat L lege Cornel. ff de testamento borne for his benefit for that happely without that fiction the poore infant should be remedilesse of his Filiall Portion Legacie or other right in conscience due unto him so Nephewes and Neeces succeed together with their Uncles and Aunts in their Grandfathers and Grandmothers goods for such portion as should have come to their parents if they had lived for that the Law presumeth them to represent the person of their parents so he that is dead is fained to bee alive to many constructions in Law specially if many of his equals in age be alive at the time that he is fained to bee alive so he that is alive and is in captivity for the upholding of his Will which he made in liberty is fained to bee dead the houre before hee became captive so he that is obstinate and will not appeare in Judgement being lawfully called thereto is fained to bee present that neither himself should take benefit out of his obstinacie neither his adversary hurt by his absence and injurie Infinite more examples might be brought of this sort but it would be too long to run through them all and this shall suffice to have shewed that the Law approveth fictions but where there is equitie for it and the Law it selfe otherwise cannot have L Gallus § fi ejus ff de liberis posthumis l. si pater § si cum ff de adopt Horat. de Arte poetica her effect And as the Law cannot proceed to a fiction without equity so neither can it faine any thing that is impossible for Art evermore followeth Nature and therefore if a man would faine disproportionable things such as the Painter did in Horace who made Boares wallow in the waves 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 live who were dead two hundred yeares since Bartol l fi is qui pro emptore num 21. 22. 23. sequen tib so that it were not possible that hee or any of his equals should live at that age this would not hold in Law for that it is above the age that the Law doth presume any man may live by Nature although the Law doth presume such as dye in warre for defence of their countrey for the better encouragement of those that are alive to venture themselves in like service for the common-wealth to live for ever because their fame doth flourish for ever and upon like reason the Law will not suffer any person to adopt an other for his childe who is either elder or equall in age unto himselfe or is not so farre under his yeares as by course of Nature hee might be his naturall childe indeed so much the Law detesteth impossibilities that it will not suffer a man to faine that which in common Sence and Nature might not be true indeed 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 Trover whereby the Common Lawyers
that all the Lawes thereof appertaine unto Your Majesties care comfort alike For which not onely the whole profession of Your Ecclesiasticall and Civile Lawyers that now are but those which shall succeed in those places for ever hereafter unto the worlds end will praise and magnifie Your Majesties gratious favour towards them and wee that now are will pray to God for the long and happie prosperitie of Your Highnesse and Your Posteritie over us during the continuance of this Heaven and this Earth and after the passing away thereof a perpetuall fruition of the new Heaven and the new Earth wherein righteousnesse onely shall dwell for ever Your Majesties most humble and dutifull Subject THOMAS RIDLEY To the Reader GEntle Reader I confesse as I meditated this Treatise upon mine owne motion as I doe somtimes matters of other argument when my leasure serves mee thereto so also I doe not set it out to the view of the world upon mine owne motion but was desirous it should have beene kept in saving that I must obey where I am bound The thing that gave mee cause to this meditation was that I saw many times how meanly men esteemed of the Civile and Ecclesiasticall Law of this Land valuing them by the practice of so much of them as we have among us And therefore I thought good although not wholly to unfold the riches of them yet to make shew of them folded up in such sort as Mercers make shew of their silkes and velvets laid up in whole peeces in their shops whereby it may bee seene what great variety they have of all these kinde of wares although the goodnesse of the ware it selfe cannot be discerned because it is foulded up Besides seeing how frequent prohibitions are in these dayes in causes of either cognisance more than have beene in former time I thought it not unworthy my labour to inquire and see upon what just grounds they are raised up in this multitude not of any humour I have to gainesay the lawfull proceedings of any Court which I reverence and most readily acknowledge their authoritie in all things belonging to their place but to know and search out the truth of those suggestions that give cause unto 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 pres sed by the partiall interpretation as it supposeth of the other inquire the ground of such interpretation and labour to redresse it if it may be by the right interpretation thereof To the end that either Iurisdiction may retaine their owne right and not the one bee overtopt by the other as it seemeth to be at this day And that in such matters as they concerne of their owne right as depend of no other authoritie but of the Prince alone which is the thing onely that is sought in this little Treatise And therefore the Reverend Iudges of this Land are to be intreated that they will vouchsafe an equall 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 perceive it nor so daunted but that they can flie for succour unto him to whose high place and wisdome the deciding of these differences doth of right appertaine PENELOPE is said to have had many wooers comely in person and eloquent in speech but shee respected none but her owne ULYSSES Such should be the minde of a Iudge that whatsoever other appearance or shew of truth be offered one saying This is the true sence of the Law and an other that yet the Iudge should respect none but the very true germane and genuine sence thereof indeed Which if it were religiously or indifferently observed in every Court then needed not this complaint that now is but every Iurisdiction should peaceably hold his owne right such as the Prince Law or Custome hath afforded unto it THOMAS RIDLEY A VIEW OF THE Civile and Ecclesiasticall Law also wherein it is straightned and wherein it may be releeved PART I. CHAP. I. SECT 1. The Division of the whole booke into foure parts What right or Law is in generall What is the Law publick and what the Law private What is the Law of Nature What is the Law of Nations What is the Law Civile BEfore I shew how necessary it is for his Majestie and the Realme to maintaine the Civile Ecclesiasticall Lawes as they are now practised among us in this Realm I will set downe as it were in a briefe what the Civile and the Ecclesiasticall Lawes are then will I shew how farre forth they are here in use and practise among us thirdly wherein wee are abridged and put beside the use and possession thereof by the Common Law even contrary to the old practise thereof and the true sence and meaning of the Lawes of this Realme and the Statutes in this behalfe provided and lastly wherein we might be releeved and admitted to the practise of many things in the Civile Law without prejudice to the Common Law and so both the Lawes might know their owne grounds and proper subjects and not one to be jumbled with the other as it is at this day to the great vexation of the Subject But before I speake of the Civile Law in particular I will define what Right or What Law is Law is in generall Law therefore is as Vlpian saith L. 10. in fin ff de Justicia Jure the knowledge of Civile and humane things the understanding of those things which are just and unjust This Law is primarily divided into the Law publick and the Law private The 1. Jus publicum publick is that which appertaineth to the generall state of the common-wealth for I meane the Law publick not in respect of the Forme that they were publickly made as we make lawes in our Parliaments for so all the Civile Law is publick as made by publick authority but in respect of the object or end thereof for that they concerne the Church the Clergie the Magistrate and other like publick functions none of which levell at the rule of equity or equality between man and man as private lawes doe but ayme at that which is most fit ingenerall for the common State 2. Jus privatum The private Law or the private mens Law is that which concernes every singular mans state which for that it is occupied in giving every man his owne it must of necessitie be proportionable to the rule of Equitie and Justice Private Law is of three sorts the law of Nature the law of Nations and the law Civile The law of Nature is that which Nature hath taught every living creature as the care and defence of every The Law of Nature creatures life desire of libertie the conjunction of male
childe A childe his father being dead by the order of the Judge is to be brought up with his mother unlesse shee hath fled unto a second marriage which if shee have done then is he to be brought up with some of his neerest kinne such as is knowne to be an honest man and will have a care of his good education with whom the Judge is to allow him such maintenance as all his stock be not spent therein but evermore somthing be left against he come to full age When the time of tutelage or curatorship is ended they are to render account unto the Judge what they have received and how they have expended the same and what residue is left and according as their proofes are either by oath or otherwise so the Judge either alloweth or disalloweth the same If the Tutors or Curators prove bankrupt or unable to satisfie the Pupill or Minor then lyeth an action against their suerties for the satisfaction of the same and if both of them faile then lyeth it against the Judge or Magistrate if either he have not received any caution at all of the Tutors or Curators or hath received an unsufficient caution or unsufficient suerties knowing them to be unsufficient otherwise he is not to secure fortune and future cases of the childe the Tutors or Curators are to sell nothing of those things that are the childrens saving such things which by keeping cannot be kept unlesse they have the order or decree of the Judge thereunto which the Judge is not to decree unlesse the childe be so farre in debt that it cannot be satisfied without some part of the other goods or there be some other like just and necessarie cause like unto this which may not be avoided As Minors have Curators and Governors so also mad persons and prodigall persons are appointed to have governors by law for that they can no more governe their owne state than the others can Prodigall persons are they that know no time nor end of spending but ryot or lavish out their goods without all discretion SECT 7. That the fift part comprehendeth nine bookes and the matter thereof VNder the fift Section which compriseth in it nine bookes are conteined 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 either put in writing or else Nuncupativewhat is an unjust or Void Will what is to be thought of those things which are found either to be blotted out or interlined in a Will how Heires or Executors are to be instituted or substituted in Wils and under what conditions they may be either instituted or substituted in the same what time an heire hath to deliberate after the Testators death before he prove the Will what is a Militarie Testament and what priviledges it hath how the inheritance may be either got or lost how Testaments are to be opened published and writ out what mens Testaments are to be opened and published of the punishment of such which a Will being extant seeke by Administration or some other like means 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 appertain unto Legacies of yeerely and monethly Legacies what time they be due in the beginning of the year or in the end which of them be pure and which conditionall of the use profit and benefit of any thing bequeathed of dwelling and workes of servants bequeathed of Dowry bequeathed and what profit the Legatorie hath thereby or choise or election bequeathed of wheat wine and oyle bequeathed and what is contained under every of them of ground furnished bequeathed and the instruments thereto belonging and what is to be understood by that bequest of store bequeathed in Latin called Penus what is comprised under that word of houshold-stuffe bequeathed of education and bringing up bequeathed of gold silver womens attire ornaments and such like bequeathed and what is to be understood by every of them how Legacies may be taken away of things that are doubtfull in a Will and how they are to be understood of those things that are left for punishment sake in a Will whether they be available 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 unworthy of them of conditions demonstrations and causes what force they have and how they prevaile in a Will Of the Law Folcidia what it is and how men thereby are restrained from bequeathing any more than three parts of their goods so that a fourth part thereof should still remain with the heire and if any man had received in Legacie more than he might by the law Folcidia that hee should put in band to restore that if any unknown debt after should appear so the same were true debt at what day a Legacie becomes due that is streight from the death of the Testator unlesse it be left to be paid upon a certain or uncertain day or under 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 doe it then the legatorie to be put in possession thereof untill the day or condition happen SECT 8. That the sixt part is spent in seven bookes and the subject thereof THe sixt part spreading it selfe over seven Bookes handleth Of Administration matters of possession of goods or Administration thereof not growing out of the Civile Law which onely makes heires giveth right of succession but out of the Pretorian law or law of conscience which in equity 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 Executor renounceth the Will but if the Will once appear then the administration forthwith ceaseth In cases where Administrations are to be granted the children of the deceased have liberty to take it within a year after the death of the deceased and if they be further off of kin then they have only a hundred dayes to take it in unlesse those which are to take it are Infants mad deaf dumbe or blind in which cases there is a longer time assigned The Pretor granted administration not only according to the tables of the Testament but many times even against the tables of the Testament as where a childe is not disinherited in his Fathers Will by plain termes but passed over with silence onely as not remembred or that the childe was not borne at the time of his death so not known whether any such child were living or to
be hoped for or not In which case if it doe after appear the Mother is put in possession of that which is the childes part If there appear no Will the Administration is committed in this order First the children of the deceased are admitted Secondly those that are next of kin in the Male line Thirdly those that are next of kin in the Female line which difference notwithstanding betweene male and Female at this day is taken away and they that are next of kin are equally admitted in either sex Lastly comes those which have right thereto either in that they are man or wife The Law sundry times where a thing is done or intended to be done against an other mans right there is no provision for it in Law yeeldeth the party grieved an Interdict or Injunction to hinder that which was intended to his prejudice As where one buildeth an house contrary to the usuall and received forme of building to the injurie of his neighbour there lyeth an Injunction de novi operis nunciatione which being once served the offender is either to desist from his worke or to put in suerties hee shall pull it downe again if hee doe not within a very short time avow the lawfulnesse thereof Again there lyeth an Injunction where hurt is not yet done but feared to be done as where a house is ruinous or the eves or any outcast worke thereof hangeth dangerously over the way so that it is doubted it will fall hurt some that passe by the owner or Lord thereof is to put in suertie to the Magistrate that if any be hurt or miscarie thereby he shall answer for it If any cause the water of the river or rain-water to run an other course than before time it was wont to doe and that the neighbours are like to be prejudiced thereby the Law yeeldeth an Injunction either to stay the worke that is intended or to secure the neighbours for the hurt that is like to follow thereupon If Customers Collectors or Tolle-gatherers exact more subsidie or other like publick duties than by Law they ought or distrain any mans goods upon pretence thereof or stay in their hands such duties as they have received wherby the partie that hath paid it falleth into any forfeiture or that they repair not the publick high wayes in which respect subsidies tributes and other such like duties are given to Princes they are to be punished in the double value of that which they have received otherwise to be fined for their ill dealing in that behalfe In gifts which are purely given or under a day or condition and specially in those that are given in contemplation of death which are compared to Legacies themselves a right passeth without deliverance and giveth sufficient matter of challenge unto him to whom they are given The means or wayes whereby the Lordship or right of any thing is gotten be it naturall as by the first occupying the same by finding the same by bringing it into a forme or fashion by gaining by the sea or river by delivery or such like or be it by civill means as by getting the possession of any thing by good title and good faith so long as it will make a just usurpation or prescription by holding it as heire by holding it by a gift by taking it up as a thing forsaken by holding it by legacie dowrie or inheritance by coming to it by sentence definitive or interlocutory by confession of the adversary by cession of the partie by auctority of the Judge and the same have bin fraudulently alienated by the debtors there lieth an Injunction to put the partie injured into possession All Injunctions for the most part are prohibitorie serve either to get or to keepe or to recover possession and are called commonly by the first name of the writ as where one is denied the possession of inheritance belonging to him an Injunction is granted him to put him in possession called Quorum bonorum or if it be for a legacie Quod legatorum and if it be in generall cases Ne vis siat ei qui in possessionem missui â—st That he that hath gotten the custodie of the Will exhibite it that no private building or such like be set up in a holy and sanctified place and if it be that it be pull'd downe again that no Nusance be done in publick places or high wayes other than such as by the Law are allowable that publick high wayes be repaired that nothing be done in any river or the bankes thereof whereby Ships or Barkes may not passe thereon that nothing be done in any common stream whereby the water should be forced to run otherwise this year than it did the last summer afore that it may be lawfull for every man to saile or rowe in any publick stream that the bankes of the river be repaired Of force and force armed where two are in possession of one thing and neither of them came by the same by force or by secret slight or by sufferance of an other there lyeth an Injunction for continuance of either of their possession called uti possidetis That a man may use such private way as he hath used the year past and repaire the same without interruption of an other That no man turne away the daily running water or the water which fals in Summer from an other mans house or ground to his hinderance That water-courses in rivers and other like places be maintained That such as have right to draw water out of any spring or well be not forbid the use thereof and that every one have free liberty to cleanse purge to repaire the same if there be any decay in it That no man be forbid to scoure purge or cleanse his privies sinkes or vaults That whatsoever is done by open force or secret subtilty be restored where it was before such force or subtilty was done unlesse the partie greeved release the same That he that holds any thing at an other mans will restore the same upon competent warning or knowledge given him thereof That a man may lop or cut the boughes of an other mans tree annoying his ground if after warning given thereof the owner thereof do not reforme it That it be lawfull for a man to gather such fruits of his as fall from his own tree into an other mans ground without any trepasse to the owner of the ground so that he gather the same within three dayes after they are so falne for otherwise the law presumes he makes no reckoning of them and fruits lying upon the ground do easily putrifie That a man may challenge his children out of an other mans hand that holdeth them from him That a Tenant after his lease is expired may remove and quietly carrie away such things from the farme as he brought thither so that the Rent be paid and those things which hee brought thither were not bound for the payment thereof Actions
the time to present the same to the Judge is at the discretion of the Judge from whom the time of prosecuting the same is a year or upon just cause two years in which time if the sute be not ended the cause is deserted and to be sent back unto the Judge from whom the Appeale was first made while the Appeale hangeth nothing is to bee innovated because by the Appeale the Judges hands are as it were bound but if the former Sentence were voyde by law as in sundry cases they are then there needeth no Appeale for such Sentences never passe into a case judged Appeales in criminall cases cannot be justified by a Proctor but it is otherwise in Civile Causes An Appeale in one cause doth not exempt the party appellant from his owne Judge in other causes If the appellant die during the time of the Appeale and leave no heire behinde him the Appeale ceaseth but if he leave an heire behinde him and the matter of the Appeale concernes none but himselfe he is not to be compelled to follow it for every one may renounce his owne sute but if it concerne the Exchequer or any other body then may hee be compelled to follow it The Exchequer is the Princes Treasurie and the patrimony of the common-wealth and hath many and singular prerogatives which private men have not Such as are taken captive by the enemy become their servants who have taken them unlesse either they escape home again themselves or be ransomed by their friends in both which cases they recover all right and priviledges they had in their owne common-wealth before By the Law all Subjects whatsoever are bound to serve the common-wealth in warre in so much that if any being prest withdraw himselfe or his childe from it he is to be counted as a rebell and for his punishment is to be banished and mulcted or fined in the greatest part of his goods As the priviledges and rewards of Souldiers were many to encourage them to vertue and manhood so their shames and punishments were great to feare them from cowardice and vice But among the rest of the priviledges of Souldiers the old Souldiers were the greatest Of Subjects some dwelt in Shires and lived after their owne Lawes and yet neverthelesse were made partakers of the honours of the Citie some other were inhabitants onely in the common-wealth and had onely a house in the same place to dwell in and had no right to bear office some other were strangers brought in which were ruled by the Law of them among whom they dwelt Amongst those that dwelt in Shires the chiefest Magistrate was he whom they called Decurio who was not sent by the people of Rome thither for he was a Magistrate of Magistrates but elected by the people there and his office was to keepe the treasurie of the Countrey to provide victuall exact tribute govern the state there in maner as our Sherifes doe here His office was onely annuall lest by liberty and lust of government and continuance thereof it might grow into a tyrannie Such as are Subjects are to serve the common-wealth in such offices places and services as their abilitie is fit for and the necessitie of the common-wealth requires The services of the common-wealth were of three sorts Patrimoniall such as belong to every mans patrimony to performe which stood chiefly upon payment and charges which were to goe out of every mans inheritance towards the performance of such burthen as lay upon him by law custome or command of him that had power thereto Personall which were to be performed by the care and industrie of the partie and his corporall labour without expence of his purse Mixt which required both care of the minde and labour of the body and expence of the purse and are imposed as well in consideration of the thing as the person which every subject is to undergoe unlesse by the Law or by the indulgence of the Prince they are excused as some are excused by reason of old age some by young age some for their dignity some for their calling some for their state of body some for that they serve in the necessarie services of the common-wealth at home or abroad as Embassadours do some for that they are in necessary places of services for Gods Religion as cathedrall Churches and other Churches are some for that they are of good and necessary places for Seminaries for the common-wealth for learning and such othe imployments as Colledges Societies and Schooles of learning and nurture are Legates and Embassadours had immunitie from all publick servivices not onely the time of their embassage but also two years after their returne They were called Legates in that they were chosen as fit men out of many their person was sacred both at home and abroad so that no man might lay violent hands on them without breach of the Law of Nations Such as are Magistrates of Cities ought so to governe that no negligence may bee justly imputed unto them otherwise they are to answer it and that when their office is expired they give up a just account both of what they have received and what they have layd out and pay in the residue if there bee any Governours of Cities together with the consent of the Burgesses thereof may set downe such orders and decrees as are for the benefit and well ordering thereof which are to be observed of all those which are Inhabitants thereof and being once well and duely set downe are not to be reversed but to the good of the Citie or Commonalty New publick workes such as are good for the Common-weale every one may make without the leave of the Prince unlesse it be done for aemulation or cause of discord but for old works in which stands the security of the Common-wealth as Castles Towers Gates and Wals of Cities nothing is to be done or innovated in them without the Princes warrant neither is it lawfull for any man to grave his name in any publick Worke unlesse it be his at whose cost the worke is done Faires are authorized by Princes onely and are invented for trade of merchandize and uttering of wares which Country-men have cause to buy or sell and have their priviledges that no man in any Faire can be arrested for any private debt they were called Nundinae because that among the Romans they were anciently holden in one place or other upon every ninth day Hee that for ten years space intermitteth to use his Faire loseth the priviledge thereof If any make any promise to a Citie or Common-wealth to do any thing upon certain cause as that hee might be made Consul or that he would repair some part of the Citie that was burnt he shall by the Law be compelled to performe his promise for it is not meet that such promises should be satisfied with repentance Such as professe liberall Sciences in any Common-wealth whereby youth is instructed brought up to knowledge or be
and stipend and that they sweare they shall so sincerely and uprightly execute their office as knowing they shall give an account thereof to God and the King which oath they shall undergoe before the Bishop of the place and the chiefe men of that Province whither they are sent to be Judges or Governours Of the Masters of Requests and their office which offer to the Prince suters Petitions and report them back from the Prince unto the Judges Of wicked and incestuous Marriages and that such as marrie within those degrees forfeit all that they have unto the Exchequer for that when they might make lawfull marriages they rather chuse to make unlawfull marriages SECT 4. The Argument of the third Collation THe third Collation conteineth matter against Bawdes that they be not suffered in any place of the Roman Empire that being once warned to forbeare their wicked profession if they offend therein again they die the death therefore If any man let any house to a bawd knowing him to be a bawd that he shall forfeit * Sciat se decem librarum auri sustinere poeram circa ipsam periclitaturum habitationem In Auth. De Lenonibus § Sancimus Coll. 3. x. li. to the Prince and his house shall be in danger to be confiscated Of Maiors and Governors 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 thereto chosen shall sweare they will proceede in every matter according to Law and Conscience That there be a certaine number of Clerkes in every Church and that it be neither diminished nor increased and therefore that there be a translation of those that abound in one Church into an other Church that wanteth The precepts which Princes gave to Rulers of Provinces were these in effect that wheras themselves were freely chosen thereunto they should in due sort and order goe into their Provinces that they should keepe their hands pure from bribes that they should carefully looke unto the Revenues of the Exchequer and the peace and quiet estate of the Province represse outrages and rebellions procure that causes be ended with all indifferencie and ordinary charges to foresee that neither themselves nor any of their officers or under ministers doe injurie to the people and so those that ought to helpe them should hurt them To provide that the people want not necessary sustenance and keepe the Walls of the Citie in reparation that they punish offences according to the Law without respect to any mans priviledge neither admit any excuse in the examining or correcting of the same save innocencie onely that they keepe their Officers in order that they admit to their Counsell such as are good men are milde towards such as are good and sharpe towards such as are evill that they afford not Protections to every man neither to any one longer then it is fit and convenient it should be that where they remove they vexe not the Countrey-men with more carriages then is needfull that they suffer not 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 contrary to Law and against the weale publick unlesse they be seconded that they suffer not the Province to be disquieted under pretence of Religion heresie or schisme but if there be any Canonicall or ordinary thing to be done they advise thereabout with the * Auxiliabuntur autem tibi ad hoc etiam Deo amabiles Ecclesiarum defensores De Mand Princip § Neque autem homicid Bishop that they doe not confiscate the goods of such as are condemned that they patronize no man unjustly that no man set his Armes or Cognisance upon an other mans Lands neither that any carrie any weapon unlesse he be a Souldier What is an hereditary portion and how children are to succeed of such as deny their owne hand-writing and * Condem 〈…〉 onem adversus eum duplicem in utroque casâ— fieri sancimus De Trient semiss § Studium vero 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 controversie from him which denied the true owner to be Lord thereof SECT 5. What is comprehended in the fourth Collation THe fourth Collation handleth matters of Marriage and that marriage is made onely by consent without either lying together or instruments of dowrie Of women that marrie againe within the yeare of mourning which by Law in sundry sorts was punished for confusion of their issue that there be an equall proportion in the Dowrie and the Joynture Of Divorce 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 marry to inferiour men shall lose the dignity 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 a husband-man take his land to morgage and †Nihil amplius quam siliquam unam pro singulo sâ—lâ—do annuam praestare Nequia quod Agricol § Sancimus how much usury-money a man may take of a husbandman Of her that was brought to bed the eleventh moneth after her husbands decease and that such as are borne in the The Glosse relateth a matter of fact contrary to this Law A widow in Paris that was delivered of a childe the 14. moneth after her husbands decease neverthelesse the good repute which was generally conceived of this womans continencie prevailed so much against the letter of the Law that the reverend Judges awarded the case of child-birth to be extraordinary the woman to be chaste and the childe legitimate Haec tamen in exemplum trahi facilè non oportet as the Glosse there concludeth beginning of the same moneth are to be accounted for legitimate but such as are borne in the end thereof are to be holden for bastards Of instruments and their credit and that in every instrument there be Protocols 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 be written faire and ingrossed in a lidger or faire * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Chartam puram mundum Booke SECT 6. What is comprised in the fifth Collation THe fifth Collation forbiddeth the alienation or selling away of the immoveable possessions of the Church unlesse it be done under certaine solemnities and then onely when the moveable goods are not sufficient to pay the debts of the Church or
matter of the ninth Collation THe ninth and last Collation conteineth matter of succession in goods that as long as there be any Descendent either Male or Female so long neither any Ascendent or any Collaterall can succeed and that if there be no Descendent then the Ascendent be preferred before the Collateral unles they be brethren or sisters of the whole blood who are to succeed together with the Ascendent but in Ascendents those are first called which are in the next degree to the deceased then after those which are in a more remote degree that in Collaterals all be equally admitted which are in the same degree and of the same Parents whether they be male or female That the lands of any Church Hospitall or other like Religious place be not sold aliened or changed unlesse it be to the Princes house or to or with an other like Religious place and that in equall goodnesse and quantitie or that it be for the redemption of Prisoners and that they be not let out to any private man more than for 30. years or 3. lives unlesse either the houses be so ruinated that they cannot be repaired without great charges of the Church or other religious houses or that it be overcharged with any debt or duties belonging to the Exchequer and thereby there commeth small revenue to the Church or Religious place there-out in every of which cases it is lawfull to let out the same for ever reserving a yearly competent rent and other acknowledgement of other soveraignty therein That the holy vessels of the Church be not sold away unlesse it be for the ransoming of Prisoners or that the Church be in debt in which case if they have more holy vessels than are necessary for the service of the Church they may sell those which are superfluous to any other Church that needeth them or otherwise dispose of them at their pleasure for the benefit of the Church or other holy place whose they are Where Usurie in processe of time doth double the principall there Usurie for the time to come doth cease and those particular payments which afterwards doe follow are reckoned in the principall What kinde of men are to be chosen Bishops such as are sound in faith of honest life and conversation and are learned that such as chuse them sweare before the choyce they shall neither chuse any for any reward promise friendship or any other sinister cause whatsoever but for his worthinesse and good parts onely That none be ordeined by Symonie and if there be that both the giver taker and mediator thereof be punished according to the Ecclesiasticall Lawes and they all made unworthy to hold or enjoy any Ecclesiasticall living hereafter That if any at the time of any Bishops election object any thing against him that is to be elected the election be staid till proofe be made of that which is objected by the adversarie against the partie elected so that he prove the same within three Moneths and if any proceeding be to the consecration of the same Bishop in the meane time it is void That the Bishop after he is ordeined may with out any danger of Law give or consecrate his goods to the use of the Church where he is made Bishop and that he may give such fees as are due to the electors by law or custome That Clerks be not compelled to undergoe personall functions and services of the common-wealth and that they busie not themselves in secular affaires and so thereby be drawn from their spirituall function That Bishops for no matter or cause be drawne before a temporall Judge without the Kings speciall commandement and if any Judge presume to call any without such speciall warrant the same is to lose his office and to be banished therefore That no Bishop absent himselfe from his Dioces without urgent occasion or that he be sent for by the Prince and if any doe absent himselfe above one yeare that he shall lack the profit of his Bishoprick and be deposed from the same if he returne not againe within a competent time appointed for the same What maner of men are to be made Clerks such as are learned and are of good Religion of honest life and conversation and are free from suspition of incontinencie that no Minister be lesse than 35. yeares of age and that no Deacon or Subdeacon be under 25. that all Clerks and Ministers be ordeined freely If any build a Church and indow the same that he may present a Clerk thereto so that he be worthy to be admitted thereto but if he present an unworthy man then it apperteineth to the Bishop to place a worthy man therein If any Clerke be convicted to have sworne falsely hee is to be deprived of his office and further to be punished at the discretion of the Bishop That Clerks be convented before their owne Bishops and if the parties litigant stand to the Bishops order the Civile Judge shall put it in execution but if they agree not upon the judgement then the Civile Judge is to examine it and either to confirme or infirme the Bishops order and if he confirme it then the order to stand and if not then the party grieved to appeale If the cause be criminall and the Bishop finde the party guiltie then the Bishop is to degrade him and after to give him over to the secular power the like course is to be held if the cause be first examined before the temporall Judge and the partie found guiltie for then hee shall be sent to the Bishop to be deprived and after againe shall be delivered to the secular powers to be punished That Bishops be convented before their Metropolitans That such as in Service time do abuse or injure the Bishop Si vero etiam Litaniam concusserit capitale periculum sustinebit De Sanctissim Episcop Deo § Si quis cum sacra minist or any Cleark in the Church being at divine service be whipt and sent into banishment But if they trouble thereby the divine Service it selfe they are to dye the death for the same That Lay men are not to say or celebrate divine Service without the presence of the Minister and other Clerkes thereto required That such as goe to Law sweare in the beginning of the suit that they haue neither promised or will giue ought to the Judge and that usuall fees be taken by the Advocates Counsellours Procters or Attournies and if any man take more than his ordinary fees he shall be put from his place of practise and forfeit the foure double of that he hath taken That the 4. generall Councels be holden as a Law and that which is decreed in them That the Bishop of Rome hath the first place of sitting in all assemblies and then the Bishop of Constantinople That all Clergy mens possessions be discharged from all ordinary and extraordinary payments saving from the repairing of Bridges and High wayes where the said possessions doe
Levell and Line The Canon Law consisteth partly of certaine Rules taken out of the holy Scripture partly of the Writings of the ancient Fathers of the Church partly of the ordinances of generall provinciall Councels partly of the Decrees of Popes of former ages Of the Canon Law there are two principall parts the Decrees the Decretals The Decrees are Ecclesiasticall constitutions made by the Pope and Cardinals at no mans suit are either Rules taken out of the Scripture or Sentences out What is the antiquity of Decrees and who were the Authors that compiled them of the ancient Fathers or Decrees of Councels The Decrees were first gathered together by Ivo B. of Carnat who lived in the time of Vrban the 2. about the yeare of our Lord God 1114. but afterward polished perfected by Gratian a Monk of the Order of S. Bennet in the yeare * Trithem in his second Booke De viris illust saith that Gratian wrote this Worke at Bononia in the Monasterie of S. Felix Anno 1127. Others say it was done in the yeare 1151. Bellarmine to reconcile the difference saith that Gratian might begin the work according to the first account and finish it according to the second 1149. and allowed by Eugenius the Pope whose Confessor hee was to bee read in Schooles and to be alledged for Law Of all the severall Volumes of the Canon Law the Decrees are the ancientest as having their beginning from the time of Constantine the great the first Christian Emperour of Rome who first gave leave to the Christians freely to assemble themselves together and to make wholsome lawes for the well government of the Church The Decrees are divided into three parts wherof the first teacheth of the origen and beginning of the Canon Law and describeth and setteth out the rights dignities degrees of Ecclesiasticall persons and the manner of their elections ordinations and offices and standeth of one hundred and one distinctions The second part setteth out the causes questions and answers of this Law which are in number 36. and are full of great varietie wisdome and delight The third and last part conteineth matter of consecration of all sacred things as of Churches bread and wine in the Sacrament what dayes and Feasts the Primitive Church used for the receiving thereof of the ministring of the Sacraments in Baptisme and the use of imposition of hands all which is set out under five distinctions SECT 2. What the Decretals are and how many parts they comprehend THe Decretals are Canonicall Epistles written either by the Pope alone or by the Pope and Cardinals at the instance or suit of some one or more for the ordering and determining of some matter in controversie and have the authoritie of a law in themselves Of the Decretals there be three Volumes according to the number of the Authors which did devise and publish them The first Volume of the Decretals was gathered together by Raymundus Barcinius Chaplain to Gregory the ninth at his the said Gregories commandement about the yeare 1231. and published by him to be read in Schooles and used for Law in all Ecclesiasticall Courts The second is the worke of Boniface the eight methoded by him about the yeare 1298. by which as hee added somthing to the ordinance of his Predecessours so he tooke away many things that were superfluous and contrarie to themselves and reteined the rest The third Volume of the Decretals are called the Clementines because they were made by Pope Clement the fifth of that name published by him in the Councell of Vienna about the yeare of grace 1308. To these may be added the Extravagants of John the xxij some other Bishops of Rome whose authors are not known and are as Novell constitutious unto the rest SECT 3. What is contained in the first Booke of the Decretals EVery of the former Volumes of the Decretals are divided into five Bookes and containe in a manner one and the same titles whereof the first in every of them is the title of the blessed Trinitie and of the Catholick faith wherein is set downe by every of them a particular beliefe divers in words but all one in substance with the ancient Symbols or beliefe of the old Orthodoxe or Catholick Church Secondly there commeth in place the treatie of Rescripts Constitutious Customes the authority of them when they are to be taken for Law after followeth the means wherby the greater Governours of the Church as namely Archbishops Bishops such like come unto their roome which was in two sorts according as the parties place or degree was whē he was called unto the roome as if he were under the degree of of a Bishop was called to be a Bishop or being a Bishop was called to be an Archbishop or to be the Pope himselfe hee was thereto to be elected by the Deane and Chapter of the Church where hee was to be Bishop or by the Colledge of the Cardinals in the Popedome but if hee were already a Bishop or an Archbishop were to be preferred unto any other Bishoprick or Archbishoprick then was he to be required by the Church he was desired unto and not elected which in the Law was called Postulation after Postulation followed translation by the superiour to the See to which hee was postulated or required after Election followed Confirmation Consecration of him that was elected which both were to be done in a time limited by the Canōs otherwise the party elected lost his right therin Bishops and other beneficed men sundry times upon 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 upon what causes a man may renounce his benefice or Bishoprick and because under-Ministers are oftentimes negligent in their Cure that the people in the meane time may not be defrauded of Divine Service the Sacraments the food of the word of God it is provided that the Bishop shall supply the negligence of such Ministers as are underneath him in his Jurisdiction besides because holy orders are not to be given but by imposition of hands with prayer and fasting * The old Romans instituted three yearely Solemnities in honour of their Gods for the Fruites of the Earth These also the Romish Church observed having first moderated their superstition and directed them to a more sacred end To the three one of their Popes as they say added the fourth with a respect had to those of the Jewes in Zech. 8. 19 and so they were called Iejunia quaiuor temporum Their institution at the first had many other causes for which see the Sermons of Leo and Durants Rationale but in after times at these Solemnities especiall regard was had to the Ordination of Priests and Deacons which had beene formerly performed onely once a yeare in the Moneth of December as Amalarim hath observed It seemeth therefore
to be otherwise then as Bellarmine hath disputed whose opinion it is that these Fasts may be fetch 't from the Apostles times and that one of these foure is mentioned by S. Luke in S. Pauls voyage to Rome Act. 27. though the Syriack Paraphrast in that place plainely setteth downe for the Greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 calling it a Fast of the Jewes not Christians But the great and learned Cardinall in his devotion to sacred Orders tooke any opportunitie to make these Solemnities in every circumstance Apostolicall Foure fit times in the yeare are limited for the same where also is set downe how they are to be qualified which are to bee ordered what triall or examination is to be had of them what age they are to be of and what gifts of body or minde they are to be indowed withall what Sacraments may bee reiterated what not that Ministers sons are not to succeed their Fathers in those benefices wherein their Fathers immediately before were Pastors or Governours lest happley thereby there might In what manner and with how much care and Christianitie these Fasts have been heretofore observed it may bee noted out of the second Councell of Mâ—lâ—aine Tit. 1. Decret 22. where the Bishop is to command that upon the Sunday before these Fasts Paroâ—ht non solùm solenne illud jejuntum denunctent verumetiam in sua unusquisque eorum parochtali Ecclesia supplicationes Litaniasque pie ac religiose vel intùs habeat vel prosequente fidelium multitudine foris Ecclesiam sicut moris est obeat ut Dei ope imploratâ tum Episcopus in eorum delectatu quibus ordenes conferet Spiritûs Sancti lumine illustretur tum illi quibus conseruntur in vitae sanctitate doctrina religiosisque virtutibus proficiant In the fourth Councell of Millaine is set downe out of Leo the forme of bidding these Fasts in the Church Quod sacrorum temporum ratio c. and afterwards Quartaigitur sexta feria Sabbato â—eâ—unemus frequentes in Cathedrali Parochialique Ecclesia ad litanias Orationémque conveniamus quò sacris illis Feriâ—â—â— cibo abstinentiores esse debemus â—o abundantsore eleemosynarum liberalitate erga Christs pauperes effusiores sinius tum Sabbato sub vesperum orationem Parochialem communem celebremus qua pro spe foelicitatis aterna ad quam per fidem currimus pro sacra ordinatione quam eo die a Reverendissimo Episcopo haberi solenne est pro â—is commodis qua singulorum annorum revolutione consequimur Deo omnipotents gratias agamus c. Tom. Concil 4. Edit Bin. These foure Fasts at this present day are observed in our owne Church and are known unto us by the name of Emberweekes And so I finde it in Thomas Becon by opinion of much people these dayes beene called Imber-dayes because that our elder Fathers would on these dayes eate no bread but Cakes made under ashes so that by the eating of that they reduced into their mindes that they were but ashes and so should turne againe and wist not how soone c. And that these Imber-dayes were duely and devoutly observed by our Ancestours wee may bee perswaded out of the Lawes of King Cnute where it is said Chap 16. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That every man observe the Fasts which are commanded with all earnest care whether it be the Imber Fast oâ— the Lent Fast or any other Fast And Chap. 17. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 where the Law saith That it is meete and right that at these Fasts all malice being laid aside all men should bee at peace And concerning the outward observance in the 43. Chap. it is said 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Evill it is that upon a fast day a man should eate any thing till Meale time and it is much worse if hee should eate flesh meate This was the Religion of our Ancestours and if ignorance could admit of so much devotion how much more would bee expected from these knowing times be claimed a succession or inheritance in the same that no bondmen or accountants men distorted or deformed in body bigamists or twice married men bee admitted to holy orders Of wandering Clerkes and how that they are not to be admitted to minister in an other Diocesse than where they are ordered without the Dimissorie Letters of the Bishop under whom they were ordered Of Archdeacons Archpriests Sacrists Vicars what they are and wherein their particular offices doe consist Of the office of Judges in generall and their power whether they be Delegats Legats à latere or Iudges ordinarie Of difference in Jurisdiction betweene Ministers Ministers and what obedience the inferiour Ministers are to yeeld unto their superiours Of Truce and Peace which Ecclesiasticall Judges are to procure that truces be kept from Saturday in the Evening untill Munday in the Morning and that there be no fighting from the first day of the Advent until the eight day after Twelfe tide and that warre likewise doe cease from the beginning of Lent untill the eight day after Easter under paine of Excommunication against him that presumeth to doe the contrarie and that in time of warre neither Priests Clerkes Merchant-men country men either going to the field or comming from the field or being in the field or the cattell with which they plough or the seed with which they sow be hurt or violated Judges before men enter into the dangerous events of Law are to perswade the parties litigant by private covenants and agreements to compound the controversie betweene them wherein if they prevaile not then the parties are to provide themselves of Advocates Proctors or Sindects according as they are private men or bodies politick to furnish their cause and direct them in proceeding If any Church hath beene hurt in any contract of bargain or sale or in demising of any Lease or by the Proctors negligence it is to be restored againe into her former state to alledge and plead that for it self which is agreeable to Law conscience The like grace is to be granted to all other Litigants whatsoever who have by feare or violence or any other like unjust cause beene hindered from the prosecution of their right If any seeing a suit like to be commenced against him doe either appeale before he be served with Proces or alienate away the thing wherupon the suit was like to grow he is to be compell'd to hold plea of the same cause before the Judge from whom he did appeale and to answer his adversarie as though still he were owner of the thing hee did in policie sell or alienate away Many times things which otherwise can have no speedy end by Law are compounded by Arbitrement Arbitrators ought to be odde in number that if they disagree that which is concluded by the greater part may prevaile An arbitrement is a power given by the parties litigant to some to heare and determine some matter in
sute betweene them Arbitrement and to pronounce upon the same to which they are to bind themselves under a penaltie to stand SECT 4. What is conteined in the second Booke of the Decretals THe first Booke having set out the first object of the Law which standeth in the persons who make up the Judgement as in the person of the Judge himselfe the Advocates Proctors and Clients there followeth in the second Booke the second object of the same which is the Judgements themselves which are to be commenced by a Citation and that in a competent Court fit for the same by a Libell offered up in the Court by the plaintife to the Judge which is to containe the summe of that which is required in Judgement where if the defendant doe againe reconvent the plaintife he is to answer albeit the defendant be not of that Jurisdiction the Libell being admitted the defendant is to joyne issue and yet before either of them enter any further into the cause that there may be faire and sincere dealing in the same and that all suspition of malitious dealing therein may be taken away each of them are to take an oath the Plaintife that hee doth not of any malice prosecute the sute against the Defendant or the Defendant of any malice mantaine the sute against the Plaintise but that they verily beleeve their cause is good and that they hope they shall be able to prove the one his libell the other his exceptions if he shall put in any into the Court. The cause being begun delayes are often granted if either there come any holiday betweene or any other like just cause be offered as for producing of witnesses and such like if there be no just cause of delay then the Judge is to goe on in the due course of Law provided alwayes that more be not demanded by the plaintife than is due and that the cause possessory be handled before the petitorie and that hee that is spoyled be first and before all things restored to that thing or place whereof he was spoyled or from which hee was put yea though he have nothing else to alledge for himselfe besides the bare spoliation it selfe If the one side or other wilfully or deceitfully decline Judgement the Judge is to put the other in possession of that which is in demand or at the least to sequester the fruits and possessions of that which is in controversie but if both parties appeare and joyne issue affirmatively then is it but a question of Law and not of fact neither doth there remaine ought else to be done by the Judge but that he give sentence against him that hath confessed it and put his sentence in execution But if issue be joyned negatively then is the plaintife to prove his Libell so farre as it consists infact by witnesses which are to be compelled by Law if they will not come or appeare voluntarily by publick and private instruments by presumptions by conjectures by oath which being done the Defendant in like sort is to be admitted to prove his exceptions and cleere his prescription if he be able to alledge any in which he is Plaintife neither is hee bound thereto before the Plaintife have perfected and proved his owne right After proofes are brought on either side and the same throughly disputed on by the Advocates the Judge is to give sentence which he is to frame according to the Libell proofes formerly deduced in the cause The sentence being given Execution is to be awarded unlesse there be an appeale made from it within ten dayes by the Law but fifteene dayes by the Statute of this Land from the time the party against whom sentence was given had knowledge thereof or unlesse it be appealed incontinently at the acts and in writing before a publike Notary or at the least the party against whom the sentence proceeded with due time take their journey toward the higher Judge to prosecute the same by whom the former sentence is either confirmed or infirmed in the second instance SECT 5. What is the subject of the third booke of the Decretalt THe third booke conteineth such Civile matters and causes as are lyable to the Ecclesiasticall Courts as the honest life or conversation of Clerkes and their comely comportment in all their demeanour with what women they are to cohabit and dwell with whereby they may be free from all suspition of ill life and with whom not which of them may bee married 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 unto their cure and if they returne not upon processe sent out against them how they are to bee punished namely by deprivation 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 just cause but if any Clerke or Minister be sicke and his disease be curable he is to receive the benefit of his prebend or dignity in his absence as though he were present but if it be contagious or uncurable then he is to be put from the exercise of his office and a helper or coadjutor to be joyned unto him and they both to be maintained of his stipend Prebends or dignities are to be got by institution which are to be given by the Bishop or his Chancellour or such other as have Episcopall jurisdiction without which neither any benefice is lawfully gotten nor can lawfully be reteined Benefices not voyde ought neither to be granted neither to be promised but such as are voyde ought to be granted within sixe moneths after knowledge of the voydance thereof otherwise the grant of them devolveth and commeth unto the superiour hee that causeth himselfe to be instituted into a benefice the Incumbent thereof being alive himselfe is to be deposed from his orders While any Benefice or Bishoprick is void nothing is to be changed or innovated in it and such gifts sales or changes of Ecclesiasticall things as are made by the Bishop or any other like Prelate without the consent of the Chapter are void in Law and such Benefices as doe become void are to be bestowed without any impairing 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 Tractates 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 right of Patronage of Synodals and Procurations of consecration of Churches of Celebration
common with others Those are common with others which other men fall into and are corrected with like ordinary proceeding as other crimes of like nature are as man-slaughter theft adultery and such like Those are proper which doe properly appertaine to militarie discipline and are punished by some unu 〈…〉 or extraordinarie punishment as are these not to appeare at Musters to serve under him he ought not to serve to vage or wander long from the Tents although he returne of his owne accord to forsake his Colours or his Captaine to leave his standing to fly over to the Enemy to betray the Hoast to be disobedient to his Captain Coronell or Lieutenant to lose or sell his Armour or to steale another mans to be negligent in forage or providing of victuall to neglect his watch to make a mutiny to fly first out of the field or other like which are delivered in the late cited titles Concerning this Arrian who wrote the life of Alexander the great thus saith Every thing is counted an offence in a Souldier which is done contrary to the common discipline as to be negligent to be stubborne to be slothfull The punishments wherewith Souldiers are corrected are these either corporall punishment or a pecuniarie mulct or injunction of some service to be done or a motion or removing out of their places and sending away with shame By capitall punishment is understood for the most part death or at the least beating unlesse happily it be pardoned either for the unskilfulnesse of the Souldier or for the mutinie of the company being thereto drawen by wine and wantonnesse or for the miseration or pittie of the party offending All which a wise Judge moderateth according to the quality of the person the quantitie of the offence and the opportunitie of the time SECT 6. That the third and last matter of extraordinary Cognisance in the Civill Law here with us concerneth the bearing of Armes and ranging of every man in his proper place of honour and first of Armory THe last extraordinary matter that the Civile Law Judge dealeth in is the bearing of Armes and the ranging of every man into his roome of honour according as his place requires and here first of Armes For skill in Armory although it be a thing now almost proper to the Heraulds of Armes who were in old time called Feciales or Caduceatores because they were messengers of warre and peace either to proclaime the one or denounce the other yet the ground thereof they have from the Civile Law so that thereby to this day they may be directed in their skill or controlled if they doe amisse For besides that there are many other places in the Law C. ut nemo privatus praediis suis vel alienis vela regia imponat ut nemini liceat sine Jud. author signa imponere c. De statuis imaginib ut nemini liceat fignum salvatoris c. De his qui potentiorum nomine titulos praediis suis affigunt ibi doct ff dererum divisio l. sanctum C. de ingenuis manumiss l. adrecognoscenda ff de rerum divisione l. sanctum which touch Armory as appeareth by the titles here quoted in the margent Barthol himselfe maketh a speciall tractate thereof and divideth the whole matter of Armes into three ranks according to the divers sorts of men that bare them for some are Armes of some publick dignitie and office as the Armes of the Legate or Proconsull the Armes of Bishops the Armes of the Lord Admirall other are Armes of speciall dignities as Armes of Kings and Princes which no man is to beare or paint in his house or stuffe unlesse it bee for to shew his duetie or subjection therein The third sort is of those which are private mens Armes of whom part have them by the grant of the Prince or by authoritie of those to whom the Prince hath given power to grant Armes to others as hath the Earle Marshall within this Realme of England others have taken them by their owne authoritie which albeit in former times they might doe as also they might take such names as every one did like of for names and signes in the beginning were invented for to know and discerne one man from an other and as every man might change his name so might hee change his signe so that it were not done in fraud and deceit but after it was forbidden both that any man should C. de mutatione nominis l 1. ff de Falsis l. sal si nominis change his 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 under Princes as I have said who should give Armes to such as deserved well of the common-wealth either in warre or peace for albeit in the beginning Armes and Colours were proper to men of warre to avoid confusion in the hoast and to discerne one company 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 indeede is that saying of Tully Parva sunt foris arma nisi est consilium domi and the Emperour speaking of the benefit that Advocates and such like bring to States L. Advocati C. de Advocatis diversorum â—udicorum and Common-wealths saith thus Advocates which breake the doubtfull fates of causes and with the strength of their defence sundry times as well in publick causes as in private raise up those that are falne and releeve those which are wearied doe no lesse good unto man-kinde than if by warre and wounds they saved their parents and countrey for we saith hee doe not count that they onely doe warre for our Empire which do labour with sword shield and target but also our Advocates for indeed the Advocates or Patrons of causes doe warre who by confidence of their glorious voyce doe defend the hope life and posteritie of such as be in danger thus saith hee and thereupon commeth that distinction of Castrense peculium Et quasi castrense peculium signifying thereby that albeit Counsellours to the state Lawyers and such like be not actuall warriers yet they are representative warriers and doe no lesse serve the Common-wealth than they The Souldier riseth betime in the morning that he may goe forth to his exploit the Advocate that hee may provide for his Clients cause hee wakes by the trumpet the other by the cock he ordereth the battell the other his Clients businesse hee taketh care his tents bee not taken the other that his Clients cause be not overthrowne so then either of them is a warrier the one abroad in the field the other at home in the Citie Besides Barthol treateth in that place what things are borne in Armes either naturall as beastes birdes fishes mountaines trees flowres sunne moone starres or such like or artificiall not taken
hold plea of any thing that is in the said Proviso conteined but it is rather directive and sheweth where the Ecclesiasticall Judge is to give way to immunities and to pronounce for them so that for any thing is conteined in this Proviso to the contrary the cognisance of these matters especially Priviledge Prescription and Composition still remaineth at the triall of the Ecclesiasticall Law as they did before this Proviso was made for Deprascript lib. 2. tit 26. De Privileg lib. 5. tit 33. Tythes and other Ecclesiasticall dueties as may appeare by the severall titles in the same Law hereon written And for the other words Law and Statute therein mentioned when as the King hath two Capacities of government in him the one Spirituall the other Temporall and his high Court of Parliament wherein Lawes are made doth stand as well of Spirituall men as Temporall men and so ought to stand in both houses if the ancient Booke De modo tenendi Parliamenti be true and authenticall which makes the upper House of three States the Kings Majestie the Lords Spirituall and the Lords Temporall and the lower House in like sort of three other the Knights the Procurators for the Clergie and the Burgesses and his Majestie hath within this Realme aswell Ecclesiasticall Lawyers as Temporall which are no lesse able to judge and determine of Ecclesiasticall matters then the Temporall Lawyers of temporall businesse It is not to be imagined but as his sacred Majestie will have those Lawes to be held Temporall and to have their constructions from Temporall Lawyers which are made and promulged upon Temporall rights and causes So also his Highnesse pleasure is and ever hath beene of all his predecessours Kings and Queenes of this Land that such Lawes and Statutes as are set out and published upon Ecclesiasticall things and matters shall be taken and accounted Ecclesiasticall and interpreted by Ecclesiasticall Lawyers although either of them have interchangeably each others voyce in them to make them a Law And that the King doth infuse life into either of the Lawes when as yet their substance is unperfect and they are as it were Embryons is in temporall matters by his temporall authoritie and in spirituall matters by his spirituall authoritie for to that end he hath his double dignitie in that place as also the Ecclesiasticall Prelates sustaine two persons in that place the one as they are Barons the other as they are Bishops So that even the orders of the House doe evince that there are two sorts of Lawes in that place unconfounded both in the head and the body although for communion sake and to adde more strength to each of them the generall allowance passeth over them all And as they rest unconfounded in the creation of them so ought they to be likewise in the execution of them as the Temporall Law sorts to the Temporall Lawyers so the Spirituall Lawes or Statutes should be allowed and allotted unto the Spirituall Lawyers And as the nomination of these words Law or Statute in this precedent Proviso makes not the Law or Statute Temporall but that it may remain wholly Ecclesiasticall by reason of the Spirituall matters it doth containe the power of him that quickneth it powreth life thereinto so much lesse can the inserting of these tearmes Priviledges Prescriptions or Composition reall intitle the Common Law to the right thereof or the Professours of the said Law to the interpretation thereof for that matters of these titles so farre as they concerne Tythes and other Ecclesiasticall dueties have beene evermore since there hath beene any Ecclesiasticall Law in this Land which hath beene neere as long as there hath beene any profession of Christianitie with us of Ecclesiasticall ordinance neither ever were of the Temporall cognisance untill now of late that they transubstantiate every thing into their owne profession as Midas turned or transubstantiated every thing that hee touched into gold CHAP. III. SECT 1. How it comes to passe that when tythes were never clogged with custome prescription or composition under the Law they are clogged with the same under the Gospel and the causes thereof BUt here it will not bee amisse to inquire since Tythes came in the beginning of the primitive Church within a little time after the destruction of Jerusalem and the subversion of the Jewes policie unto the Christian Church and common-wealth void of all these incumbrances as shall appeare after by the testimonie of sundrie of the ancient Fathers which were neere the Apostles time how it comes to passe since Tythes are no lesse the Lords portion now than they were then and in the Patriarches time before them that these greevances have come upon them more under the Gospel than ever they did under the Law for then never any Lay man durst stretch out his hand unto Malach. 3. them to diminish any part thereof but hee was charged with robberie by the Lords owne mouth and in punishment thereof the heavens were shut up for giving raine unto the earth and the Palmer-worme and Grashopper were sent to devour all the greene things upon the earth And for Ecclesiasticall men it is not read any where in the Scripture that ever they attempted to grant out any priviledge of Tythes to any person other than to whom they were disposed by the Law or to make any composition thereof betweene the Lay Jew and the Lords Levites every of the which have beene not onely attempted against the Church in Christianitie but executed with great greedinesse so farre worse hath beene the state of the Ministery under the Gospel than was the condition of the Priests and Levites under the Law SECT 2. That the causes are two fold First The violent intrusion of Lay men and secondly The over-much curiositie of Schoole men and first of the first cause and therein concerning Charles Martels Infeudations and the violent prescriptions ensuing thereupon THe beginning whereof although it be hard for mee to finde out because there is small memory thereof left in Stories yet as farre as I can by all probabilities conjecture this great alteration in Ecclesiasticall matters came by two occasions the one by the violence of the Laitie thrusting themselves into these Ecclesiasticall rights contrary to the first institution thereof for when they were first received into the Christian world they were received and yeelded to for the benefite of the Clergie onely as in former time under the Law they had beene for the use of the Priests and â—evites onely The other was the too too much curiositie of Schoolmen who being not content with the simple entertainment of Tythes into the Church as the ancient Fathers of the primitive Church received them would needes seek out how and in what right and in what quantitie this provision belongs unto the Church wherein they did by their overmuch subtilty rather confound the truth than make that appeare which they intended to doe By the first of these was
respected not so much the qualitie of the crime upon which the Diffamation grew as the manner of proceeding therein ayming in the one at publique vendict which is to be sought out of the Ecclesiasticall Law and in the other at private interest which is to be had out of the Temporall Law Neither is an Action of Diffamation a matter of so light esteeme or qualitie a mans fame or good name being in equall ballance with his life as that it should be drawne away to be attendant on any other action that is of smaller weight or importance than it selfe is for this is one of those Actions which for the speciall preheminence thereof are called Actiones praejudiciales that is such that draw smaller causes unto them but themselves are drawne of none other but such as are like principall or greater than themselves are So that unlesse the manner of proceeding bring these causes under the compasse of the Common Law in such sort as I have before shewed the coupling of them with another matter of the same Law will hardly bring them under the triall thereof for that there be few actions greater then it selfe is so that if the crime be Ecclesiasticall howsoever it toucheth a Temporall cause the tryall shall be still at the Ecclesiasticall Law And the same that I say of Diffamations rising out of Ecclesiasticall crimes I hold also to be true in Diffamations springing out of Temporall crimes where punishment is required for the offence committed and amends in money is not demaunded unlesse happily that grow of penance injoyned which the offender will redeeme by giving money to the Judge or to the partie grieved And this I take to be a farre better limitation for either Law having the ground of the Civile Law and a Statute of the Common Law and common reason it selfe for it than the other divise is which so distinguisheth this businesse as still it makes it rest in the mouth of the Judge which cause of Diffamation is meere spirituall and which not which were not to be done if there were cleare dealing in the matter for Lawes are so to be made as that as little as may be be left to the discretion of the Judge but all be expressed as farre as the nature of the cause vvill give leave vvhich albeit it be hard to doe for the varietie of the cases that every day happen never thought on before yet that is to be laboured so farre as may be for this libertie of leaving many things to the Judges discretion is many times great occasion of confusion in Judicature saying sometimes this and sometimes that as his private humor shall lead him and therefore a plaine distinction betweene both the Lawes vvere best that every man may see and say vvhat is proper to either of them SECT 2. That the suit of Bastardie as well in the principall as in the incident belongs unto the Ecclesiasticall Law ANd thus farre as concerning matters of Diffamation Now followeth that I speake of matters of Bastardie Bastardie is an unlawfull state of birth disabled by divine and humane Lawes to succeed in inheritance Of Bastards some are begot and borne of single women in which ranke also I put widowes some other of married women Of single women some are such as a man may make his wife if himselfe be sole and unmarried as those that are kept as Concubines in place of a mans wife some other are such as a man cannot make his wife although himselfe be sole and unmarried for that either they are already precontracted to some other or that they be in so neere a degree of affinitie or consanguinitie one to the other that the marriage would be damnable the issue thereof unlawfull Of such as are begotten of single women by single men who are in case to marrie them if they will some are called by the Civile Law Filii Naturales because they were begot by such as they held for their wives and yet were not their wives who might be legitimate by sundry waies as hereaster shall be shewed Some other begot of single women if they were begot in vage lust without any purpose to hold such a one for a Concubine but upon a desire only to satisfie a mans present lust whether they were begotten by married men or single men were called Spurii vvho for the most part are putative children and their father is not otherwise knowne then by the mothers confession vvhich sometimes saith true sometimes otherwise Isidore saith they vvere so called because they were borne out of puritie for that such kinde of lust is contrary to holy Matrimonie whose bed is undefiled and therefore the other is corrupt and abominable But where any was borne of a woman single or married that prostituted her selfe to every mans pleasure and made publike profession of her self to be an harlot such as they are whom the Law calleth Scorta these were called Manzeres Those which were begotten of married women were called Nothi because they seemed to be his children whom the marriage doth shew but are not no otherwise than some feavers are called Nothi that is bastard feavers because they imitate the tertian or quartan Feaver in heat and other accidents but yet are neither tertians nor quartans as the learned Phisicians well know but these are counted so to bee bastards if either the husband were so long absent from his wife as by no possibility of Nature the childe could bee his or that the Adulterer and Adulteresse were so knowne to keepe company together as that by just account of time it could not fall out to be any other mans childe but the Adulterers himselfe and yet in these very cases within this Realme unlesse the husband be all the time of the impossibility beyond the Seas the Rule of the Law holds true Pater is est quem nuptiae demonstrant The most nefarious and last kinde of Bastards are they whom the Law calleth Incestuosi which are begot between Ascendents Descendents in infinitum and betweene Collaterals so farre as the Divine Prohibition and the right interpretation thereof doth stretch it selfe The effects of these sorts of Bastardies are divers First it staineth the bloud for that hee that is a Bastard can neither challenge Honour nor Armes from the Father or Mother for that he was begot and borne out of Matrimony which is the first step to Honour and therefore the Apostle calleth Marriage honourable whereupon it must H 〈…〉 13. 4 follow that the opposite thereof is shame for albeit it bee no sinne for a Bastard to be a Bastard yet is it a defect in him to be such a one and a thing easily subject to reproach Secondly it repelleth him that is a Bastard from all succession descending from the Father or the Mother whether it be in Goods or Lands unlesse there bee some other collaterall provision made for the same for that all such Lawes and Statutes as are made
goods and lands but newes being after brought that the said Ralphe was dead beyond the Sea Francis the Brother of the said Ralphe spoyled the said Richard of the possession of all the goods and lands he had of the said Ralphe his Grandfather for that he did pretend the said Agatha his Niece and Mother of the said Richard was not borne of lawfull Matrimonie so that neitheir shee her selfe nor her sonne ought to succeed the Brother of the said Francis but that the inheritance thereof did belong unto himselfe whereupon the said Richard being thus spoyled by Francis his great uncle obtained Letters of restitution to the Bishop of London the B. of Worcester and the B. of Excester under this forme That before they entred into the principall cause which was this Whether the said Agatha were borne in lawfull Matrimonie or not they should restore the said Richard to his Grandfathers inheritance But the Bishop of Rome after understanding by the said Delegates that the plea of inheritance within this Realme did not belong unto the Church but unto the King recall'd that part of his rescript which concerned the restitution of the said Richard to his inheritance and gave order to the foresaid Bishops to proceed in the cause of legitimation willing them to inquire whether the said Agatha were borne of the said Aneline in the life time of her husband Allin when she dwelt and cohabited with him as with her husband or whether the said Ralphe Father of the said Agatha kept the said Aneline openly and publickly while the said Allin yet lived And if they found it to be so then they should pronounce her the said Agatha to bee a Bastard for that Anelina her Mother could not bee counted to bee a wife but a whore which defiling her husbands bed presumed to keepe company with an other her husband yet being alive But if they found it otherwise then they should pronounce her the said Agatha to be legitimate All which was done after the death of the said Ralph and Aneline as the Decretall it selfe shewes Neither was there any authoritie that opposed it selfe against that proceeding but held it to be good and lawfull though it were in terme of speciall Bastardie for then that which they now call speciall Bastardie was not borne Besides hereby it appeareth that the Ordinaries then did not onely proceed in cases of Bastardie incidently that is when a suit was before begun in the Common Law upon a triall of inheritance and that by writ from the Temporall Courts but even originally and that to prepare way unto inheritance or any other good that was like to accrue unto a man by succession or to avoid any inconvenience that might keepe him from promotion as may appeare by this practise following Priests in the beginning of the Raigne of Henry the 3. Constitut Otho innotuit de uxoratis à benefic 〈…〉 amovendis yet married secretly and their children were counted capable of all inheritance and other benefits that might grow unto them by lawfull marriage so that they were able to prove that their parents were lawfully married together by witnesses or instruments which many children did either upon hope of some preferment that by succession or otherwise was like to come unto them or to avoid some inconvenience that otherwise might light upon them for the want of that proofe some their parents yet living others their parents being dead and the proceedings before the Ordinary was holden good to all intents and purposes even in the Common Law for otherwise they would not have so frequented it for as yet there was made no positive Law against marriages of Priests and Ministers but the Church of Rome then plotting against it for that by that they pretended the cure of Soules was neglected and the substanc of the Church wasted and dissipated did by Otho then Legate à Latere to Gregory the ninth order by a Constitution that all such Ministers as vvere married should be expelled from their Benefices and their Wives and Children should be excluded from all such livelihood as the Fathers had got during the time of the Marriage either by themselves or by any middle person and that the same should become due unto the Church wherein they did reside and that their children frō that time forth should be disabled to injoy holy orders unlesse they were otherwise favourably dispensed withall which Constitution although it wrought to that effect to barre Priests for that time of their Marriage untill the light of the Gospell burst out and shewed that that doctrine was erronious yet to all other effects the proceeding in the case of Bastardie stood good as a thing due to be done by holy Church And therefore Linwod comming long after in his Catalogue that hee maketh of Ecclesiasticall causes reciteth Legitimation for one among the rest for that in those daies there was no dispute or practise to the contrarie And thus farre as concerning those things wherein the Ecclesiasticall Laws are hindered by the Temporall in their proceedings contrary to Law Statute and custome anciently observed which was the third part of my generall division Now it followeth that I shew wherein the Ecclesiasticall Law may be relieved and so both the Lawes know their owne bounds and not one to over-beare the other as they doe at this day to the great vexation of the subject and the intolerable confusion of them both which is the last part of this Treatise PART IV. CHAP. I. SECT 1. The meanes how to relieve the Civill Law that they are of two sorts that two things are required to the first meane and that the former of these is the right interpretation of Lawes and what that is THe meanes therefore to relieve the profession of the Civile Law are two The first is by the restoring of those things which have beene powerfully by the Common-Law taken from them and the bringing of them backe againe unto their old and wonted course The other is by allowing them the practise of such things as are grievances in the Common-wealth and fit to be reformed by some Court but yet are by no home-Law provided for The first of these stands in two things whereof the one is the right interpretation of the Lawes Statutes and customes which are written and devised in the behalfe of the Ecclesiasticall Law The other consisteth in the correcting and supplying of such Lawes and Statutes that are either superfluous or defective in the penning made in the behalfe as it is pretended of the Ecclesiasticall profession but yet by reason of the unperfect pe 〈…〉 g thereof are construed for the most part against them The right interpretation of the Law Statutes and Customes pertaining to the practise standeth as is pretended in the Judges mouth who notwithstanding hath that authoritie from the Soveraigne and that not to judge according as him best liketh but according as the right of the cause doth require The supply or
reforming of that which is over-plus or defective is in the Parliament so notwithstanding as that the Prince evermore breatheth life into that which is done Lawes Statutes or Customes are then best interpreted when as the very plaine and naturall sense of them is sought after and no forraine or strained exposition is mixt with them for that turneth justice into worme-wood and judgement into gall then that the Judge be not too subtill in his interpretation but follow such exposition of the Lawes as men of former age have used to make if they be not plainly absurd and erronious for oft shifting of interpretations breedeth great variance in mens states among such as have busie heads and much discrediteth the Law it selfe as though there were no certaintie in it with which although the fage Judges of our time cannot be charged for ought that I know yet I cannot tell how men much complaine that Lawes are farre otherwise construed in these daies than they were in former ages which as it is an ordinarie complaint in the Temporall Courts so it is not without cause much lamented at the Spirituall Court where the interpretation upon the three Statutes of Tythes made by King Henry the eight and Edward his sonne among other inconstancies of other Lawes hath such great varietie of sense and understanding in sundrie points thereof as that if the makers thereof were now alive and the first expositors thereof sate in place of Judgement againe the Statutes being measured by the interpretation they now make of them vvould hardly acknowledge them either to be the Statutes that they then made or the other did after expound and declare for every of these Statutes and the sense that was given of them vvas wholy for the benefit of the Church according to the tenor thereof but as they now receive explication they are not onely not beneficiall unto the Church but the greatest hinderance to the same that may be for the words are made to jarre with the sense and the sense vvith the vvords neither is there kept any right analogie in them and therefore the Reverend Judges are to be intreated because they challenge unto themselves the opening of the Statutes alone albeit peradventure that be yet subjudice where the Statute of Ecclesiasticall causes is to be interpreted that they would recall such exorbitant interpretations as have of late gone abroad upon these Statutes and restore them to their ancient sense and understanding No man can so cunningly cloake an interpretation but another will be as cunning as hee to spie it out and then the discredit will be the Lawes Lib. 1. Politâ—â— A small errour saith Aristotle in the beginning is a great one in the end and hee that goeth out of the way a little the longer he goeth on the further he is off from the place his voyage was to and therefore the speedier returne into the way againe is best The old Proverbe 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 dangerously than under the authoritie of the Law and therefore one saith very well that There are two salts required in a Judge the one of knowledge whereby hee may have skill to Judge uprightly the other of conscience whereby hee may be willing to judge according to that as his skill leadeth him unto both which being in the grave Judges it is not to be doubted but they will be easily induced to review their owne and their predecessours interpretations and reduce such exorbitant expositions as have scaped out thereof unto the right and naturall sense thereof which if perhaps they shall be loath to do for because it makes for them or for some other like partiall respect then humble supplication is to be made unto his Majestie that hee himselfe will be pleased to give the right sense of those things which are in controversie betweene both the Jurisdictions for his Majestie by communicating his authoritie to his Judge to expound his Lawes doth not thereby abdicate the same from himselfe but that hee may assume it againe unto him when and as often as hee pleaseth Whose interpretation in that is to be preferred before theirs first for that his interpretation is impartiall as hee that will not weaken his left side to make strong his right for so are these jurisdictions as they are referred unto his politique bodie but will afford them equall grace L. 1. num 8. C. de legibus L. 1. num 7. C. codâ— omnes populi ff de justit jure and favour that hee may have like use of them both either in forraigne or domesticall businesse as occasion shall serve then that his Judges interpretation maketh right onely to them betweene whom the cause is but his highnesse exposition is a Law unto all from which it is not lawfull for any subject to recede neither is it reverseable by any but by himselfe upon a second cogitation or him that hath like authoritie as himselfe hath and therefore most fit to be interposed betweene Jurisdiction and Jurisdiction that the one partie be not Judge against the other in his owne cause which is both absurd and dangerous And let this suffice for the right interpretation of Lawes and Statutes Now it followeth that I speake something of the supplies that may be made to the defects that are in the same SECT 2. The second thing required to the first correcting of superstition and supplying of defective Statutes IT is not to be doubted but it was the full minde and intent of the Lawmakers which made those three Statutes to infeoffe the Ecclesiasticall Courts in the inheritance of all those causes that are comprised in those Statutes save those that are by speciall name exempted and that they did by the said Statute as it were deliver unto them full and quiet possession of the same for even so sundrie branches of the said Statute do shew as I have elsewhere made it manifest and that there hath growne question upon many points thereof and that the professours of the Ecclesiasticall Law have beene interupted in the quiet possession thereof commeth of the unperfect penning of the same and not of any just title or claime that may be made by the professours of the other Law thereunto but this is a thing not onely proper to these three Statutes but also common to all other Statutes which are writ of any Ecclesiasticall causes within this Land which notwithstanding may be remedied if it seeme good unto his sacred Majestie and the rest of the wisedome 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 defective and yet keeping 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 §