the rest of the matters that belong to the triall of the Ecclesiasticall Courts some are acknowledged to be absolutely in vse some other are challenged to be but in a certein measure in vse In absolute vse are those which neuer had any opposition against them which almost are those alone which belong to the Bishops degrée or order for all things which come within the compasse of the Ecclesiasticall Law are either belonging to the Bishops degrée or his Iurisdiction To his degrée or order belong the ordering of Ministers and Deacons the confirmation of Children the dedication of Churches and Churchyards and such like none of which haue béen challenged at any time to belong to any other Law The second sort is of them that belong to the Bishops iurisdiction which is partly voluntarie partly litigious Voluntarie is when those with whom the dealing is stand not against it but litigious it is when it is oppugned by the one part or the other Of this latter sort many things in sundry ages haue bin cald in question but yet rescued and recouered againe by the wise graue Iudges themselues who haue found the challenge of them to be vniust But what doth belong to either of them in priuat or what causes do appertaine to the whole Iurisdiction in generall because they haue bin alreadie particulerly set downe by that famous man of worthy memory Doctor Cosin in his learned Apologie for certaine Cos in in his Apologie part 1. c. 2. procéedings in Ecclesiasticall Courts I will not make a new catalogue of them but send the Reader for the knowledge thereof vnto his Booke but yet in my passage will I note which of them haue bin most chiefly oppugned and as occasion shall fall out speak to them And thus much as concerning those parts of the Ecclesiasticall Law which are here in vse with vs Now it followeth to shew whereby the exercise of that Iurisdiction which is granted to be of the Ciuile and Ecclesiasticall cognizance is defeated impeached by the Common Law of this Land which is the third part of this Diuision The impeachment therefore is by one of these meanes by Praemunire by Prohibition by Iniunction by Supersedeas by Indicauit or Quare impedit but because the fower last are nothing so frequent nor so harmfull as the others and that this Booke would grow into a huge volume if I should prosecute them all I will only treat of the two first and put ouer the rest vnto some better opportunitie A Praemunire therefore is a writ awarded out of the kings Bench against one who hath procured out any Bull or like processe of the Pope from Rome or elsewhere for any Ecclesiasticall place or preferment within this Realme or doth sue in any forteine Ecclesiasticall Court to defeat or impeach any Iudgement giuen in the Kings Court whereby the bodie of the offender is to be imprysoned during the Kings pleasure his goods forfeyted and his lands seized into the Kings hand so long as the offender liueth This writ was much in vse during the time the Bishop of Romes aucthoritie was in credit in this land and very necessary it was it should be so for being then two like principal authorities acknowledged within this Land the Spirituall in the Pope and the Temporall in the King the Spirituall 25. Edw. 2. 27. Edw. 3. ca. 1. 38 Edw. 3. ca. 1. 2. 7. Rich. 2. ca. 12. 13. Rich. 2. ca. 2. 2. H. 4. cap. 3. grew on so fast on the temporal that it was to be feared had not these statutes bin prouided to restraine the Popes interprises the spirituall Iurisdiction had deuoured vp the temporall as the temporall now on the contrary side hath almost swallowed vp the spiritual But since the forreine authoritie in Spirituall matters is abolished and eyther Iurisdiction is agnised to be setled wholy and only in the Prince of this land sundry wise mens opinion is there can lye no Praemunire by those Statutes at this day against any man exercising any subordinat Iurisdiction vnder the King whether the same be in the kings name or in his name who hath the same immediatly from the King for that now all Iurisdiction whether it be Temporall or Ecclesiasticall is the Kings and such Ecclesiasticall Lawes as now are in force are called the Kings Ecclesiasticall Lawes and the Kings Ecclesiasticall Courts For that the King cannot haue in himselfe a contrarietie of Iurisdiction fighting one against the other as it was in the case betwéene himselfe and the Pope although he may haue diuersitie of Iurisdiction within himselfe which for order sake and for auoyding of confusion in gouernment he may restraine to certeine seuerall kinds of causes and inflict punishment vpon those that shall go beyond the bounds or limits that are prescribed them but to take them as enemies or vnderminers of his state he can not for the question here is not who is head of the cause or Iurisdiction in controuersie but who is to hold plea thereof or exercise the Iurisdiction vnder that head the Ecclesiasticall or temporall Iudge Neyther is that to moue any man that the Statutes made in former time against such Prouisors which vexed the King and people of this land with such vniust suits doe not onely prouide against such processe as came from Rome but against all others that came elsewhere being like conditioned as they for that it was not the meaning of those Statutes or any of them thereby to taxe the Bishops Courts or any Consistory within this land for that none of them euer vsed such malepert sawsinesse against the King as to call the Iudgements of his Courts into question although they went far in strayning vpon those things and causes which were held to be of the Kings Temporall cognisance as may appeare by the Kings Prohibition thereon framed And beside the Archbishops Bishops and other Prelats of this Land in the greatest heat of all this businesse being then present in the Parliament whith the rest of the Nobilitie disauowed the Popes insolencie toward the King in this behalfe and assured him they would ought to stand with his Maiestie against the Pope in these and all other cases touching his Crowne and Regalitie as they were bound by their allegeance so that they being not guilty of these enterprises against the King but in as great a measure troubled in theyr owne Iurisdiction by the Pope as the King himselfe was in the right of his Crowne as may apppeare out of the course of the said Statutes The word Elsewhere can in no right sence be vnderstood of them or their Consistories although some of late time thinking all is good seruice to the Realme that is done for the aduancement of the Common Law and depressing of the Ciuill Law haue so interpreted it but wythout ground or warrant of the Statutes themselues who whollie make prouision against forreine authoritie and speak no word of domesticall proceedings But
man more than for 30. yeares or 3. liues vnlesse eyther the houses be so ruynated that they cannot be repayred without great charges of the Church or other religious houses or that it be ouercharged with any debts or dueties belonging to the Exchequer and thereby there commeth small reuenue to the Church or Religious place thereout in euery of which cases it is lawfull to let out the same for euer reseruing a yearely competent rent other acknowledgements of other souerainties therein That the holie vessels of the Church be not sold away vnlesse it be for the ransoming of Prisoners or that the Church be in debt in which case if they haue more holy vessels than are necessary for the seruice of the Church they may sell those which are superfluous to any other Church that néedeth them or otherwise dispose of them at their pleasure for the benefit of the Church or other holy place whose they are Where Vsurie in processe of time doth double the principall there Vsurie for the time to come doth cease and those particuler payments which afterwards do follow are reckoned in the principall What kind of men are to be chosen Bishops such as are sound in faith of honest life conuersation and are learned that such as choose them sweare before the choice they shall neyther choose any for any reward promise friendship or any other sinister cause whatsoeuer but for his worthynesse and good parts only That none be ordeined by Symonie and if there be that both the giuer taker and mediator thereof be punished according to the Ecclesiasticall Lawes and they all made vnworthie to hold or inioy any Ecclesiasticall liuing hereafter That if any at the time of any Bishops election obiect any thing against him that is to be elected the election be staid till proofe be made of that which is obiected by the aduersarie against the partie elected so that he prooue the same within 3. Moneths and if any procéeding be to the consecration of of the same Bishop in the meane time it is void That the Bishop after he is ordeyned may with out any danger of Law giue or consecrate his goods to the vse of the Church where he is made Bishop and that he may giue such fées as are due to the electors by Law or custome That Clerks be not compelled to vndergoe personall functions and seruices of the common wealth and that they busie not themselues in seculer affaires so thereby be drawen from theyr spirituall function That Bishops for no matter or cause be drawen before a temporall Iudge without the Kings speciall commaundement and if any Iudge presume to cal any without such speciall warrant the same is to loose his office and to be banished therefore That no Bishop absent himselfe from his Dioces without vrgent occasion or that he be sent for by the Prince and if any doe absent himselfe aboue one yeare that he shall lack the profit of his Bishopricke and be deposed from the same if he retorne not againe within a competent time appointed for the same What manner of men are to be made Clerks such as are learned are 〈◊〉 good Religion of honest life conuersation and are frée from suspition of incontinency that no Minister be lesse then 35. yeares of age and that no Deacon or Subdeacon be vnder 25. that all Clerks and Ministers be ordeyned fréely If any build a Church and indow the same that he may present a Clerk thereto so that he be worthy to be admitted therto but if he present an vnworthy man then it appertaineth to the Bishop to place a worthy man therein If any Clerke be conuicted to haue sworne falsely he is to be depriued his office and further to be punished at the discretion of the Bishop That Clerks be conuented before their owne Bishops and if the parties litigant stand to the B. order the Ciuill Iudge shal put it in execution but if they agrée not vpon the iudgement then the Ciuill Iudge is to examine it eyther to confirme or infirme the B. order if he confirme it then the order to stand if not then the party grieued to appeal If the cause be criminall and the Bishop find the party guiltie then the Bishop is to degrade him and after to giue him ouer to the seculer power the like course is to be held if the cause be first examined before the temporall Iudge and the partie found guiltie for then he shall be sent to the Bishop to be depriued and after againe shall be deliuered to the seculer powers to be punished That Bishops be conuented before their Metropolitans That such as in Seruice time do abuse or iniure the Bishop or any Clerk in the Church being at diuine Seruice be whipt and sent into banishment But if they trouble thereby the diuine Seruice it selfe they are to dye the death for the same That Lay men are not to say or celebrate diuine Seruice without the presence of the Minister and other Clerkes thereto required That such as goe to Law sweare in the beginning of the suit that they haue neyther promised or will giue oght to the Iudge and that vsuall fées be taken by the Aduocates Counsellers Procters or Attournies if any man take more than his ordinary fées he shall be put from his place of practise and forfeit the foure double of that he hath taken That the 4. generall Councels be holden as a Law and that which is decréed in them That the B. of Rome hath the first place of sitting in all assemblies and then the B. of Constantinople That all Clergie mens possessions be discharged from all ordinary and extraordinary payments sauing from the repairing of Bridges and High wayes where the said possessions do lye That no man buyld a Church or holy place without the leaue of the B. and before the Bishop there say Seruice and set vp the signe of the Crosse That no man in his owne house suffer Seruice to be said but by a Minister allowed by the Bishop vnder paine of confiscating of the house if it be the Lord of the house that presumeth to doe it or banishment if it be done by the tenant If any bequeath any thing to God it is to be paied to the Church where the Testator dwelled If any deuise by his last Will a Chappell or Hospitall to be made the Bishop is to compell the Executors to performe it within fiue yeares after the decease of the Testator and if the Testator name any gouernor or poore thereto they are to be admitted vnlesse the Bishop shall find them vnfit for the roome That the Bishop sée such Legacies performed as either are giuen for the redemption of Prisoners or for other godly vses That Masters of Hospitals make an accompt of their charge in such sort as Tutors doe That such as lust against nature and so become brutish receiue condigne punishment worthy their wickednesse That such as
matrimony or that I was borne after that my father and mother were lawfully married together in both which you sée there is a mariage confessed the question onely is of the priority or posteriority of the natiuitie of him that is charged withall whither it hapned before or after his parents marriage which as they hold is the other member of speciall bastardie and yet this prioritie or posterioritie of natiuitie by vertue of the Kings writ comes no lesse in inquirie to the Ordinary in the case of the generall bastardie than they make it to be trauersable in the speciall bastardie and therfore the writ to the Ordinary for generall bastardie is conceiued in this manner viz. Inquiratis Lib. Intrac fol. 35. vtrum praedictus A. pars rea genitus vel natus fuit ante matrimonium contractum inter talem patrem suum et talem Gâ—anuill Lib. 7. cap. 15. matrem suam vel post So that eyther they must consesse there is no such bastardy as they make shew there is diuerse from that that is tried before the Ecclesiastical Iudge or that themselues do confound the members that should diuide the same and make them one or the other as them list for both simply they cannot be vnlesse they be distinguished with other notes and differences than hitherto I find they are But to say the truth if these things be well weyghed and considered speciall Bastardy is nothing else but the definition of the generall and the generall againe is nothing but the definite of the speciall for whosoeuer is borne out or before lawfull Matrimonie he is a bastard and he againe is a bastard that is borne before or out of lawful matrimony so that these things to be a bastard and to be borne out of lawfull matrimony are conuertible one with the other so then as it were very hard to make a diuorce betwéene these things that are so néere in nature one to the other being conuertible termes one to the other so hard again it were in policie to disioyne these things in triall that are so neere in affinitie one to the other because they are the same in substance nature as the other are and therfore eodem iure censeri debent 1â— q. ca. 2. cognoâ—imus then nè continentiae causaruÌ„ diuidantur which is no lesse absurditie in Law than it is a grosnesse in other learning to deny a principle or generall Maxime of the profession And so far hitherto as concerning the reasons arguments that may be brought against this speciall Bastardy Now it resteth that I shew by ancient precedents both these sorts of Bastardy haue appertained to the Ecclesiastical Courts only and the first precedent is in the incident the other in the principall and the precedent is no lesse auntient than Henry the seconds time as that which hapned vnder Alexander the third about the yeare of our Lord 1160. the case is this A certaine man of Norwich Diocesse called R. H. had issue Ca. Lator. ext qui filij sunt legitimi I. H. who had a sonne called C. H. I. H. deceasing before R. H. his father C. H. succéeded in his Grandfathers in heritance his said Grandfather being dead but M. H. brother to the said Grandfather pretending the said I. H. was a Bastard draweth the said C. H. into the Temporall Court vpon the inheritance whereupon C. H. called the said M. H. into the Bishop of Norwich his Court for the triall of his natiuitie but the Bishop long protracting the cause C. H. appealed to the Pope who delegated the same cause to the Bishop of Excester and the Abbot of Hereforde with order That if the said M. H. should not within two Monethes prooue that which he obiected against C. H. that then they should Intimate the same to the seculer Iudge before whom the inheritance was in question that he should not stay any longer vpon the question of legitimation but procéed to Iudgement in the cause of the inheritance Which president though it be long before the Statute of Bastardie made by Henry the 6. and so no writ went from the temporall Court for the certificat therof yet it shewes that the Temporall Iudges in those daies did not procéed to iudgement in the principall cause before the incident were decided by the Ordinary that they counted bastardy then to be of the Ecclesiast cognisance and that it was lawful for him that was preteÌ„ded to be a bastard to appeal from his Ordinary if either the Ordinary detracted the determination therof or were suspected of parciality And thus far of the incident There is an other much like precedent to this in the same Kings dayes but that is in the principall for that the inheritance came not first in question but the legitimation it selfe and the case is as followeth A certain man called Raphe kept one Analine the wife of one Ca. Causam ext qui filij sunt legitimâ— Allin by whom he was supposed to haue begot one Agatha who also being married had a sonne called Richard Raphe going beyond the Sea left Richard and his Mother Agatha in possession of all his goods lands but newes being after brought that the said Raphe was dead beyond sea Frauncis the brother of the said Raphe spoyled the said Richard of the possession of all the goods lands he had of the said Raphe his grandfather for that he did pretend the said Agatha his niece Mother of the said Richard was not borne of lawfull Matrimonie so that neither shée her selfe nor her sonne ought to succéed the brother of the said Frauncis but that the inheritance thereof did belong vnto himselfe whereupon the said Richard being thus spoiled by Frauncis his great vncle obtained letters of restitution to the Bishop of London the B. of Worcester the B. of Excester vnder this forme That before they entred into the principall cause which was this whether the said Agatha were borne in lawfull Matrimonie or not they should restore the said Richard to his Grandfathers inheritance But the Bishop of Rome after vnderstanding by the said Delegats that the plea of inheritance within this Realme did not belong vnto the Church but vnto the King recald that part of his rescript which concerned the restitution of the said Richard to his inheritance gaue order to the foresaid Bishops to procéed in the cause of legitimation willing them to inquire whether the said Agatha were borne of the said Aneline in the life time of her husband Allin and when shée dwelt cohabited with him as with her husband or whether the said Raphe father of the said Agatha kept the said Aneline openly publikely while the said Allin yet liued And if they found it to be so then they should pronounce her the said Agatha to be a Bastard for that Aneline her Mother could not be counted to be a wife but a whore which defyling her husbands bed
Kings Ecclesiasticall Courts here within the Land 111 What is a Prohibition and how many sorts are thereof 113 Of Admirall causes and in what sort they are hindered 115 Of Actions of Trouer and how far Fictions in Law are to be admitted and how far not 116. c. Wherein last Wils and Testaments are impeached 121 Of the care that Princes of this Realme haue had for the due payment of Tythes vnto the Church and the preseruing of the cognisance thereof vnto the Ecclesiasticall Courts of this Land both before the conquest and since 124 c. That the Statutes of the xxvii and xxxii of H. the viii and the 2. of Edward the vi c. 13. intended for the true paiment of Tythe and the preseruation of the triall therof vnto the Ecclesiasticall Courts are now turned to the hinderance of them both 128. c. That customes of payment of tythes are triable onely at the Ecclesiasticall courts 131. c. That the lymits and bounds of Parishes are of the Ecclesiasticall cognisance onely 135 That the clause of treble Damages in the 13. chapter 2. Edw. 6. is to be sued in the Ecclesiasticall courts only 137. That the naming of law or Statute in a statut doth not make it to be of the Temporall cognisance if the matter therof be Ecclesiasticall 139. c. How it comes to passe that when tythes were neuer clogged with custome prescription or composition vnder the Law they are clogged with the same vnder the Gospel and the causes thereof 142 Tythes anon after the dissolution of the Iewes policie were entertained by the Christians as a naturall prouision for the Ministers of the Gospell and leased out by God vnto the Iewes for the time of their policie only 142 That Charles Martell Father of King Pippin was the first that euer toke tythes from the Church and assigned them ouer to Lay men in fee and vpon what occasion 145 That to the imitation of this fact of Martell other Princes did the like euery one in his Kingdome 145 That this fact of Martel being done about the yeare 606. stood vnreuersed vntill the Lateran councell vnder Alexander Anno 1189. and that the reformation was then but in part 146 That Ecclesiasticall Iudges admit pleas in discharge of tithes and the maner of tything contrarie to the conceit that is had of them 149 Of Priuiledges and how they came in 150 That by reason of the frequence of priuiledges Statutes of Mortmaine came in 150 Of the beginning of cloistered monks in the west Church of Christendome and that the author thereof was one Benedict a Roman about the yeare 606. 153 That from Benedict and his order flowed all the rest of the orders of Religious men 153. c. That the admiration that these Religious men did breed of themselues in the head of Princes and Popes did procure appropriations of parsonages and immunities from Tiths 153 That the ouer conceit that men had of praier aboue preaching in the church was an adiuuant cause therunto 154 Whether Appropriations came first from Princes or Popes it is questionable 155 Exemptions from tythes brought in by Pope Paschall in fauour towards all sorts of Religious men 158 The same restrained by Pope Adrian and limited to the Cystertians Hospitallers Templers and the Knights of Saint Iohn of Ierusalem onely sauing to the other the Tythes of grounds laboured with their owne hands onely 159 That Innocent the third in the third Lateran Councell 1120. restrained those foure orders from immunitie of Tythes for such grounds as they should acquire after that councel which Henry the fourth imitating prouided by two Statutes of this Land against their immunitie 159 That if this reuocation of Immunitie by Innocent the third these two Acts of Henry the fourth were wel weighed they would ouerturne many of the priuiledges chalenged by the Statut of 31. H. 8. c. 13. for exemption of Monasterie Lands from Tithes 160 That Reall compositions for Tythes are the deuise of Ecclesiasticall Lawyers and are to be tried by the Ecclesiasticall Courts 160 That the curiositie of Schoolemen in their distinctions vpon Tythes haue helped forward Appropriations and Exemptions from Tythes 161 The opinion examined as concerning the quotitie of tithes whether it be Morall Ceremoniall or Iudiciall 161. c. That a Bishop being Lord of a Manor and prime founder of a Benefice could not in the first erection thereof by his owne capacitie retaine any Tythes in his hand and passe the same after in lay-fee to his tenants and so giue cause to his tenants of prescription against the parson 165 That Bishops indowments in the beginning stood not in Tythes but in finable Lands 167 That the turning of Bishops indowments into tenthes or tythes for impropriat parsonages is vnsutable to the first institution and very dangerous 168 That it had bin a worthy worke in the first reformers of Religion if they had returned to euery parish their owne parsonage and the dislike that God may seeme to haue conceiued of that 169 That tythes are a Parochian right and how Parishes in the Christian world came first to be instituted 171 That tythes of Minerals are due 174 That tythes of Turues be due 178 That the cognisance of barren heath and wast grounds belongeth to the Ecclesiasticall courts and what euery of them are 180 That the boughes of great trees are tythable and so also are the bodies but in the case of the Statute only 185 In what cases diffamatorie words belong to the Ecclesiastical and in what to the common law 191 That the suit of bastardie aswell in the principall as in the incident belongs vnto the Ecclesiasticall Law 199 The meanes to relieue the Ecclesiasticall courts 209 The right interpretation of Lawes and Statuts 209 Wherein the three Statutes for tythes may be supplied 212 What things may bee ordered by the Ciuile Law yet not prouided for by the common Law and others of like nature to those that are expressed 215 Of the necessitie of retaining the practise of the Ciuile and Ecclesiasticall law within this Land 224. c. FINIS A VIEW OF THE Ciuile and Ecclesiasticall Law also wherein it is straighted and wherein it may be relieued BEFORE I shew how necessarie it is for his Maiestie and the Realme to maintaine the Ciuile and Ecclesiasticall Law as they are now practised among vs in this Realme I will set down as it were in a briefe what the Ciuile and the Ecclesiasticall Lawes are then will I shew how farre forth they are here in vse and practise among vs thirdly wherein we are abridged and put beside the vse and possession thereof by the Common Lawe euen contrarie to the old practise thereof and the true sence and meaning of the Lawes of this Realme and the Statutes in this behalfe prouided and lastly wherein we might be relieued and admitted to the practise of many things in the Ciuile Law without preiudice to the Common Lawe and
who was péerelesse among all Quéenes that euer went before her and vnmatchable as I verily doe beleeue by any that euer shall succéed her as their magnanimitie whereby they subdued not only their domesticall enemies but vanquished euen their forraine foes were their designements neuer so daungerous not shewing any token of discouragement either in the treasonable attempts of the one or in the malitious complotiments of the other What an excellent work of hers was that that then when all her neighbour Kingdomes round about her were drunke with the cup of the fornication of the whore of Babilon shee alone came out of Babilon and so continued constantly to the end mauger the threats of the red fierie Dragon and the floods of water he cast out of his mouth after her How excellent did she shew her selfe in those two vertues which doe chiefly preserue Princes States that is Mercie and Iudgement the Records of her time do shew so that I may spare to remember any by name which happily would be not well taken And yet truth it is that mens gouernment is more agréeable to Nature than womens is whom God in the beginning put in subiection vnder man and who for the most part are by Nature weake in bodie and thereby vnable to put in execution the great affaires of a Kingdom and vnsetled in iudgement and so hardly can determine that which is right and settle themselues thereupon yet by the numeration of certaine ill gouerning Quéens to conclude a generalitie against all gouernment of women is but an ill kind of arguing for euen by the like reason a man might conclude against Kings of which sort although there hath bin many good whom God hath vsed as instruments to worke great good vnto people in euery kingdom yet more of them haue bin euill as the Stories of euery country will shew and to abridge God of his power that he cannot as well gouerne by a woman as by a man when it is his good pleasure so to doe were great iniurie to God and a great discredit to all woman kind but to returne thither where I left In succession of Kings a question hath béene where the King hath had sons both before hee came to the Kingdome and after which of them is to succéed he that was borne before the Kingdom as hauing the prerogatiue of his birth-right or he that was dorne after as being brought into the world vnder a greater planet than the other neither hath there wanted reason or example for each side to found themselues Herodot lib. 4. Iustin lib. 11. Plutarchus in vita Artoxerxis on for Xerxes the son of Darius King of Persia being the eldest birth after his father was inthronised in the Kingdom carried away the Empire thereof from his brother Artemines or Artebarsones borne before his father came to the royall possession thereof so Arseces the son of another Darius borne in the time of his fathers Empire carried away the garland from his brother Cyrus borne before the Empire so Lewes Duke of Millan borne after his father was Guiâ—â—ard l. 1. Histor â—lonâ—us Decad. 2. lib. 6. Mich. Ritius lib. 2. de regib Hâ—â—gar Sigeb in â—roni Duke was preferred to the Dukedome before his brother Galliasius borne before the Dukedome But these examples notwithstanding and the opinion of sundry Doctors to the contrarie common vse of succession in these latter daies hath gone to the contrarie and that not without good reason for that it is not meet that any that haue right to any succession by the progatiue of their birthright such as all elder brethren haue should be despoiled therof except there be some euident cause of incapacitie to the contrarie Beside sundry contentions haue risen in kingdomes betweene the issue of the eldest sonne of the king dying before his father and the second brother suruiuing the father who should Raigne after the Father the Nephew challenging the same vnto him by the title of his fathers birthright and so by the way of representation for the eldest son euen the father yet liuing beares the person of the father how much ff de liberis posthumis l in suis then rather his father being dead Whereupon the Law cals as well the sonne Filiusfamilias as the father Paterfamilias for that the son euen during the fathers life is as it were Lord of his fathers state the other claiming as eldest son to his father at the time of his death vpon which title in old Pausanias lib. 3. Historiaris time there grew controuersie betwéene Areus the son of Acrotatus eldest son to Cleomines King of Lacedemon and Cleomines second son to Cleomines and vncle to the said Areus but after debate thereof the Senate gaue their sentence for Areus right against Cleomines beside Eunomus Plutarch in vita Licurg King of Lacedemon hauing two sons Polydectes and Lycurgus Polydectes dying without children Lycurgus succéeded in the kingdom but after that he vnderstood Polydectes widow had a child he yeelded the Crowne to him wherein he dealt far more religiously then either did king Iohn who vpon like pretence not only put by Arthur Plantaginet his eldest brothers son from the succession of the kingdom but also most vnnaturally tooke away his life from him or king Richard the third who most barbarously to come vnto the kingdom did not only sley his two innocent Nephewes but also defamed his owne mother in publishing to the world that the late king his brother was a bastard Our Stories Bartel l. si viâ—ae matre C. de bonis maternis primogeniti filii noÌ„ excludâ— secuÌ„dogenituÌ„ in regno doe not obscurely note that controuersie of like matter had like to growne betwéene Richard the second and Iohn of Gaunt his vncle and that hee had procured the counsell of sundry great learned men to this purpose but that he found the hearts of sundry Noblemen of the Land and specially the citizens of London to bee against him whereupon hee desisted from his purpose and acknowledged his Nephewes right Yet notwithstanding when as Charles the second Vicerius in vita Henricâ— 7. King of Cicill departed his life and left behind him a Nephew of Charles his cloâ—st son surnamed Martellus and his younger son Robert and the matter came in question which of them should succéede Clement the fifth gaue sentence for Robert the younger son of Charles deceased against the son of Martellus being Nephew to his Grandfather and so caused the said Robert to be proclamed king of both Caecils Clem. pastoralis de re iudicata which was done rather vpon displeasure that Pope Clement conceiued against the Emperour Frederick than that there was iust cause so to doe And yet Glanuill an old reuerent Lawyer of this Land and Lord chiefe Iustice vnder Henry the second séemeth to make this questionable here Glanuil l. 7. c. 3. in England who should bee preferred the Vncle or the
the same word Elsewhere is to be ment and conceiued of the places of remoue the Popes vsed in those dayes being somtimes at Rome in Italy sometimes at Auignion in France semetimes in other places as by the date of the Bulls and other processe of that age may be séene which seuerall remoues of his gaue occasion to the Parliament of inserting the word Elsewhere in the bodie of those Statutes that thereby the Statutes prouiding against Processe dated at Rome they might not bée eluded by like Processe dated at Auignion or any other place of the Popes aboade and so the penaltie thereof towardes the offender might become voyd and be frustrated Neyther did the Lawes of this Land at any time whiles the Popes authoritie was in his greatest pride wythin this Realme euer impute Praemunire to any Spirituall Subiect dealing in anie Temporall matter by any ordinarie power wythin the land but restrained them by Prohibition only as it is plaine by the Kings Prohibition wherein are the greatest matters that euer the Clergie attempted by ordinarie and domesticall authoritie and yet are refuted only by Prohibition But when as certeine busie-headed fellowes were not content to presse vpon the kings Regall iurisdiction at home but would séek for meanes for preferment by forrein authoritie to controul the Iudgements giuen in the kings Courts by processe from the Pope then were Premunires decréed both to punish those audacious enterprises of those factious Subiects and also to check the Popes insolencie that he should not venter hereafter to enterprise such designements against the King and his people But now since the feare thereof is past by reason all entercourse is taken away betwéene the Kings good Subiects and the Court of Rome it is not to be thought the meaning of good and mercifull Princes of this land is the cause of these Statutes being taken away the effect thereof shall remaine and that good and dutifull subiects stepping happily awry in the exercise of some part of their Iurisdiction but yet without preiudice of the Prince or his Regall power shall be punished with like rigor of Law as those which were molesters gréeuers and disquieters of the whole estate But yet notwithstanding the edge of those Premunires which were then framed remaine sharpe and vnblunted still against Priests Iesuits other like Runnagates which being not content with their owne natural Princes gouernment séek to bring in againe that and like forrein authoritie which those Statutes made prouision against but these things I leaue to the reuerend Iudges of the land and others that are skilfull in that profession onely wishing that some which haue most insight into these matters would adde some light vnto them that men might not stumble at them and fall into the daunger of them vnawares but now to Prohibitions A Prohibition is a commaundement sent out of some of the Kings higher Courts of Records where Prohibitions haue bin vsed to be graunted in the Kings name sealed with the seale of that Court and subscribed with the Teste of the chiefe Iudge or Iustice of the Court from whence the said Prohibition doth come at the suggestion of the Plaintife pretending himselfe to be grieued by some Ecclesiasticall or marine Iudge in not admittance of some matter or doing some other thing against his right in his or their iudiciall procéedings commaunding the said Ecclesiasticall or marine Iudge to proceed no further in that cause if they haue sent out any censure Ecclesiasticall or Marine against the plaintife they recall it and loose him from the same vnder paine of the Kings high indignation vpon pretence that the same cause doth not belong to the Ecclesiasticall or Marine Iudge but is of the temporall cognisance and doth appertaine to the Crowne and dignitie Prohibitions some are Prohibitions of Law some other are Prohibitions of fact Prohibitions of Law are those which are set downe by any Law or Statute of this Land whereby Ecclesiasticall Courts are interdicted to deale in the matters therein contained such as are all those things which are expressed in the kings Prohibition as are also those which are mencioned by the second of Edward the sixt where Iudges Ecclesiasticall C. 13. 2. Edw. 6. are forbid to hold plea of any matter contrarie to the effect intent or meaning of the statute of W. 2. Capite 3. The statute of Articuli Cleri Circumspecte agatis Sylua Cedua the treaties De Regia Prohibitione the Statute Anno 1. Edwardi 3. Capite 10. or oght else wherein the Kings Court ought to haue Iurisdiction Prohibitions of fact are such which haue no precise word or letter of Law or Statute for them as haue the other but are raised vp by argument out of the wit of the Deuiser These for the most part are méere quirks and subtilties of law and therfore ought to haue no more fauour in any wise honourable or well ordered Consistorie than the equity of the cause it selfe doth deserue for such manner of shifts for the most part bréed nought else but matter of vexation and haue no other commendable end in them though they pretend the right of the Kings Court as those other Prohibitions of the law doe but the Kings right is not to be supposed by imagination but is to be made plaine by demonstration and so both the Statute of the 18. of Edward the third Capite 5. is where it is prouided no Prohibition shall goe out but where the King hath the cognisance and of right ought to haue and also by the forenamed Statute of Edward the sixt which forbids that any Prohibition shall bee graunted out but vpon sight of the libell and other warie circumstances in the said Statute expressed by which it is to bee intended the meaning of the Lawgiuers was not that euery idle suggestion of euery Attorney should bréed a Prohibition but such onely should bee graunted as the Iudge in his wisdome should thinke worthy of that fauour and of right and equitie did deserue it although as I must déeds confesse the Statute is defectiue in this behalfe for to exact any such precise examination of him in these cases as it is also in other points and is almost the generall imperfection of all statutes that are made vpon Ecclesiasticall causes but I feare me as emulation betwéene the two lawes in the beginning brought in these multitudes of Prohibitions either against or beside law so the gaine they bring vnto the Temporall Courts maintaineth them which also makes the Iudges they cesse not costs and damages in cases of of Consultation although the statute precisely requires their assent and and assignement therin because they would not feare other men from suing out of Prohibitions and pursuing of the same The Prohibitions of the law as haue beene before shewed are neither many nor much repined at because they containe a necessarie distinction betwéene Iurisdiction and Iurisdiction and imply the kings right and subiectes benefit but the
al should be ended in one and the selfe same Court which would be a great ease to the subiect who to his intollerable vexation and eycessiue charges is compelled to run from Court to Court and to gather vp as it were one lim of his cause here and another there and yet happily in the end cannot make a whole and perfect body of it Beside it is a mightie disorder in a common wealth thus to iumble one Iurisdiction with another the very confusion as well of the one law as the other for as kingdomes are preserued by knowing their bounds and kéeping their lymits so also Iurisdictions are maintained and vpheld by containing themselues within the lists or banks of their authoritie Further vnlesse they will graunt there is an Ecclesiastical custome as there is a Seculer Custome and that the one is as well to be tryed in the one Court as the other is in the other they will make their owne Doctrine in the before-rehearsed Prohibition void where they certaine vs there is a Seculer Custome and if there be a Seculer custome then doubtlesse there is also an Ecclesiasticall or spirituall custome for the word Seculer is not put in that place absolutely Glos in Clem. vnâ—â—a in verbo aterna â—teâ— de summa trinit f de catholica but relatiuely and the nature of Relatiues is one to put another one to remoue another but by the Seculer custom they but the Ciuilian therfore they grant him the spirituall for of contrarie things there are contrarie reasons and contrarie effects and what that which is proposed doth worke in that which is propounded the same againe that L. Fin. § pâ—us â—â—tem de legatis 3. ibi Angel which is opposed doth worke in that which is opponed by which Rule as Temporall Lawyers are to deale in Temporall Customes and spirituall men are not to intermedle therin so also Ecclesiasticall Lawyers are to deale in Ecclesiastical causes and that temporal Lawyers are not to busie themselues thereabout And that this was the intent of the king when he first receiued the Church into his protection with all the priuiledges therof may appeare hereby that hauing vnited both the Iurisdictions in his owne person hee did not iumble them both together as now they are but kept them distinct one from the other not only in authorising the Ecclesiasticall Courts that were before but also in vsing the verie words and phrases that the Iurisdictionaries Ecclesiasticall did vse euery where in their writings euen these words whereupon men now take hold to frame Prohibitions vpon viz. according to the laudable customs vsages of the parish and places where such Tythes growe which were the words of Innocent the third in the Decretals vpon the title of Tythe long before these statuts were made or any other statuts concerning the true payment of tyths and Linwod in the same title of tithes often vseth the very selfe same words and phrases that the other doth so that if these words made no Prohibition before the statute as I think it cannot well be shewed to the contrarie neither ought they to do it now since the statute for that they are taken still in the Church businesse and not in a temporall matter whose gouernment although it be vnder one and the selfe same Prince that the Temporall state is yet is it distinct from the same as euer it hath bin since there hath bin any setled forme of Church gouernment many common 1. Corinth 5. wealth as may appear both by the example of S. Paul which neuer goeth to any temporal power to punish the incestuous person although there were sundry lawes then both in Gréeke and Latine written of these matters but doth it by the spirituall sword alone and also by that that in matters of Iar for worldly causes betwéen brother and brother he forbids such as were new Christians to go to law before 1. Corinth 6. Infidels but aduiseth them rather to appoint Iudges among themselues to decide such controuersies which albeit in those daies was ment as wel of lay Christians as of the ministers of the Gospell for that the number of them then was small and the causes of suit they had one against another were not many and might easily be ended by one and the selfe same consistorie yet when the number of the Christians increased and the Church got some rest from persecution the Iurisdiction was againe diuided and as there were Seculer Courts appointed by Princes wherin Temporal mens causes and Lay businesses were heard so there were also by the same authoritie erected Ecclesiasticall Courts and Bishops C. de episcopall audienta tâ—rtis audiences wherin either Ecclesiasticall mens causes alone or such as they had against Lay men or Lay men against them were treated of and determined So that this was no new deuise of Henry the eight or Edward his sonne that when they tooke vpon them the supremacie ouer the Church as they had before ouer the common wealth they did not mishmash both the states together and made one confused heape of them both but left them seuered as they found them only affording either of them an equall proportion of protection for that by these two parts the kings Monarchie is compleat and himselfe is the head and chiefe Gouernour of the whole and entire bodie of his Realme For this was exemplaried vnto them in all former ages since the Church and common wealth had any louing and kind cohabitation together as hath béene before remembred And therefore doe they wrong to the ashes of those kings deceased which by subtill sence and strained interpretations draw these Lawes which they intended for the benefit of the Church and Church gouernment to the ouerthrow of the same as though the Positiue Lawes of the kingdome could not stand if the Lawes of the Church continued and stood vp right Vpon the same words of the same Statute if perhaps at any time there grow any controuersie about the limits or hounds of Parishes they draw the same by like importunitie from the triall of the Ecclesiasticall Law vnto the Common Law auouching the same also to bee of the Temporall cognisance and yet Linwod who liued in the daies of Henry the fift making a Catalogue of the principall matters that in his daies belonged vnto the Ecclesiasticall Courts reckoneth the bounds of Parishes for one And very like it is it should so be for that Ecclesiasticall men first in this Kingdome made diuisions of Parishes as by our owne Cronicles it appeareth and the first practise thereof within this Realme came from Honorius the fourth Archbishop of Canterbury after Augustine who himselfe died in Registro Eccle. XpÌ„i Cant. Stow. the yere of our Lord God 693. although otherwise the thing it selfe be more auncient and discends from the councell of Saint Paul he gaue to Titus to appoint Elders in euerie Citie but that Cities and Countries againe are
diuided into Tit. cap. 1. v. 5. seueral Parishes it was the ordinance of Pope Dionisius about the yere 266. frō him deriued into this other realms the distinction thereof was chiefely deuised that it might be knowne of what congregation euery people were and that so they might be trained vp in the Schole of godlinesse vnder their owne Pastor or Minister But that now the diuision of Parishes doth serue to other politike vses it comes not of the first institution thereof which was méere Ecclesiastical but it groweth out of a second cause that is because beeing so fitly and aptly primarily diuided by Ecclesiasticall men as they are the Princes therefore did vse the opportunitie thereof for Temporall seruices subdiuiding the same againe into many Tythings or like smaller diuisions for the more spéedie seruice of the king and better ordering of the common wealth Which our auncient Fathers well knowing neuer called the same in question acknowledging therein the good they had receiued from Ecclesiasticall men by this partition of Countries into Parishes but men of later age being lesse thankfull than they and loath to séeme beholding to Ecclesiasticall Courts for any matter of good order and disposition haue arrogated the same wholy to the Temporall Courts as though the Ecclesiastical Iudge could not as well discerne what two or thrée honest men depose and say as concerning the limits or bounds of a Parish as twelue meane men of the countrie who are vpon like depositions to giue vp their verdict But for the limits of Bishoprickes I acknowledge that they are Temporall for that they were not primarily designed out by Ecclesiasticall men and theyr direction but were assigned to Prouinces or Shires first described and distynguished by Princes but for Parishes neyther reason nor antiquitie concurs with them that they should be temporall or that they should be vsurped or challenged to be of the temporall cognisance And so much for those Prohibitions which they commonly frame out of the 27. and 32. of Henry the eight not that there are no more but these but that hauing a taste of these there may be like Iudgement made of the rest Out of the statute of the 2. of Edward the 6. cap. 13. they vpstart many Prohibitions the first whereof in order of the Statute although the last in practise is the prohibition of treble damages vpon not diuiding and setting out of Tythes or at the least for the not compounding for them before they be carried away Which forfeiture they suggest and thereupon bring a Prohibition and so draw the whole suit of Tythes into their Courts contrary to the true meanning of this Statute which would those treble dammages in case of not iustly diuiding and setting out or not compounding for the Tythes before they be carried away be no lesse recouerable before an Ecclesiastical Iudge according to the Kings Ecclesiasticall Law than the forfeyture of double value by the letting and stopping of them to be caried away whereby they are lost with the costs thereon growing is remediable at the same Law For albeit the clause which is to redresse this wrong be put after that part of the Statute which concernes the stopping and letting of Tythes to be carried away yet when there is as great reason it should stretch it selfe to the first branch of the prouision as to the second and the second branch hangeth on the first by a coniunction copulatiue and there is no hetorogeny or disparitie in the matter whereby it may not be aswell verified in the one branch as in the other I see no reason why it should not equally respect them both according to the rule of the Law Clausula in fine posita refertur ad omnia C. 6. tit 28. l. 1. precedentia maximè quando non resultaret intellectus contratius iuri as here it doth not for the intendment of eyther branch of the Statute is to procure by theyr seuerall forfeytures a iust and true payment of Tythes the recouerie whereof as the precise words of the Statute in one member restrayne vnto the Ecclesiasticall Law so the Identitie of reason in the other member doth confirme it vnto the same Law for where there is the like reason L. Illud ff ad l. Aquiliam or equitie there ought to bee the like disposition or order of Law Beside if the principall cause it selfe be triable in the Ecclesiasticall Court why should not those things which hang thereon be tried in the same Court for they are but as it were accessaries to the principall and so not only follow the nature of the principall but also belong to the Court of the principall and are determinable where the principall is for otherwise happily there might fall out contrary sentences of one and the selfe same thing the one condemning the other absoluing Further in that Court wherein the course of Iustice already is begun the cause may with lesse labour and easier expences be ended being both for the most part determinable by one sentence than that a new processe thereof should begin before an other Iudge who knoweth little or nothing of the principall matter and therefore cannot so easilie decide the accessarie Lastly those which take this course first to surmise a forfeyture then to draw the originall suit whereupon the forfeyture grew into question bring in a proceeding far different from the common style of all well ordered Courts in all Nations among whom the cognusance of the cause triall thereof goeth before and the forfeyture or execution thereof followeth after But in this Hysteron proteron the execution is in the foreward and the triall is in the rereward In which doing they deal much like as Cacus the Giant dealed with Hercules oxen who to thintent that Hercules should not find what way they were gon drew them backward by the tayle into his Caue but as that deuise setued not Cacus but that Hercules had his oxen againe so it is to be hoped the Reuerend Iudges of the land will not long suffer this subtiltie to preuaile but as it came in like a Fore and raigned as a Wolfe so in the end it shall dye and vanish away like a vaine deuise much like the destinie of Boniface the eight for the reuerend Iudges are not only to minister Iustice betweene man man so that euery man may haue his owne and none be eppressed of an other but also they are to carrie an vpright and indifferent hand betwéene Iurisdiction and Iurisdiction yea though themselues be parties to the matter in question so that one Iurisdiction eat not vp an other as the Locusts in Egipt deuoured vp all the greene things of the land An other Rendeuous they make of the words of this Prouiso Law statute priuiledge prescription or composition reall as though all which passeth vnder any or these tearmes belongeth to the triall of the Common Law and not to the cognisance of the Ecclesiasticall Law and that
forsooth because these words and tearmes are expressed in the Statute which is much like vnto that as one would needes haue a house to be Master Peacocks house because he saw a Peacock sit vpon the top thereof But it is not the naming of a thing in a Law or Statute that makes it to be of the Temporall cognisance or otherwise but it is the nature or qualitie of the thing named that rangeth it vnder the one Law or the other So that if the matter ordered in the Law or Statute be temporall the cognisance shall be Temporall if Spirituall then the case is determinable in the Ecclesiasticall Law for this Prouiso is not prohibitorie as the last Prouiso of this statute is whereby Ecclesiasticall Iudges are forbidden to hold plea of any thing that is in the said Prouiso conteyned but it is rather directiue and sheweth where the Ecclesiasticall Iudge is to giue way to immunities and to pronounce for them so that for any thing is conteyned in this Prouiso to the contrary the cognisance of these matters specially Priuiledge Prescription and Composition still remayneth at the triall of the Ecclesiasticall Law as they did before this Prouiso was made De praescripr lib. 2. tit 26. De Priuileg lib. 5. tit 33. for Tythes and other Ecclesiasticall dueties as may appeare by the seuerall Tytles in the same Law hereon written And for the other words Law and Statute therein mentioned when as the King hath two Capacities of gouernment in him the one Spirituall the other Temporall and his high Court of Parliament wherein Lawes are made doth stand aswell of Spirituall men as Temporall men and so ought to stand in both houses if the auncient booke De modo tenendi Parliamenti be true and authenticall which makes the vpper house of thrée states the Kings Maiestie the Lords Spirituall and the Lords Temporall and the Lower house in like sort of thrée other the Knights the Procurators for the Clergie and the Burgesses and his Maiestie hath wythin this Realme aswell Ecclesiasticall Lawyers as Temporall which are no lesse able to iudge and determine of Ecclesiasticall matters than the Temporall Lawyers of temporall businesse It is not to be imagined but as his sacred Maiestie will haue those Lawes to be held Temporall and to haue their constructions from Temporall Lawyers which are made and promulged vpon Temporall rights and causes So also his Highnesse pleasure is and euer hath béene of all his predecessors Kinges and Quéenes of thys Land that such Lawes and Statutes as are set out and publyshed vpon Ecclesiasticall thinges and matters shall bee taken and accompted Ecclesiasticall and interpreted by Ecclesiasticall Lawyers although eyther of them haue interchangeably each others voyce in them to make them a Law And that the King doth infuse life into eyther of the Lawes when as yet their substance is vnperfect and they are as it were Embreos 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 euen the orders of the house doe euince that they are two sortes of Lawes in that place vnconfounded both in the head and the bodie although for communion sake and to adde more strength to each of them the generall allowance passeth ouer them all And as they rest vnconfounded in the creation of them so ought to be likewise in the execution of them and as the Temporall Law sortes to the Temporall Lawyers so the Spirituall Lawes or Statutes should bée allowed and allotted vnto the Spirituall Lawyers And as the nomination of these words Law or Statute in this precedent Prouiso makes not the Law or statute Temporall but remayneth wholie Ecclesiasticall by reason of the Spirituall matters it doth conteine and the power of him that quickneth it and powreth life thereinto so much lesse can the inserting of these tearmes Priuiledges Prescriptions or Composition reall intitle the Common Law to the right thereof or the Professors of the said Law to the interpretation thereof for that matters of these tytles so far as they concerne Tythes and other Ecclesiasticall dueties haue béen euermore since there hath been any Ecclesiasticall Law in this land which hath been neere as long as there hath béen any profession of Christianitie with vs of Ecclesiasticall ordinance neyther euer were of the Temporall cognisance vntill new of late that they transubstantiat euery thing into their owne profession as Midas turned or transubstanciated euery thing that he touched into gold But here it will not be amisse to inquire since Tythes came in the beginning of the Primitiue Church wythin a little time after the destruction of Ierusalem and the subuersion of the Iewes policie vnto the Christian Church and Common wealth void of all these incumbrances as shall appeare after by the testimonie of sundrie of the auncient Fathers which were néere the Apostles time how it comes to passe since Tythes are no lesse the Lords porcion now than they were then and in the Patriarkes time before them that these gréeuances haue come vpon them more vnder the Gospell than euer they did vnder the Law for then neuer any Lay man durst stretch out his hand vnto them to diminish any part thereof but he was charged Malach. 3. with robberie by the Lords owne mouth and in punishment thereof the Heauens were shut vp for gyuing raine vnto the earth and the Palmer worme and Grashopper were sent to deuour all the gréene things vpon the earth And for Ecclesiasticall men it is not read any where in the Scripture that euer they attempted to graunt out anie priuiledge of Tythes to any person other than to whom they were disposed by the Law or to make anie composition thereof betwéene the Lay Iew and the Lords Leuites euery of the which haue beene not only attempted agaynst the Church in Christianitie but executed with great greedynesse so far worse hath béene the state of the Ministerie vnder the Gospell than was the condition of the Priestes and Leuites vnder the Law The beginning whereof although it be hard for me to finde out because there is small memory thereof left in Stories yet as far as I can by all probabilities coniecture this great alteration in Ecclesiasticall matters came by two occasions the one by the violence of the Laitie thrusting themselues into these Ecclesiasticall rights contrarie to the first institution thereof for when they were first receyued into the Christian world they were receyued and yéelded to for the benefit of the Clergie only as in former time vnder the Law they had béen for the vse of the Priestes and Leuites only The other was the too too much curiositie of Schoolmen who beeing not content with the simple entertaynment of Tythes into the Church as the auncient fathers
presumed to kéep company with an other her husband yet being aliue 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 Raph and Aneline as the Decretall it selfe shewes Neyther was there any authoritie that opposed it selfe against that procéeding but held it to be good and lawfull though it were in tearmes of speciall Bastardy for then that which they now call speciall Bastardy was not borne Besides hereby it appeareth that the Ordinaries then did not only procéed in cases of Bastardy incidently that is when a suit was before begun in the Common Law vpon a triall of inheritance that by writ from the Temporall Courts but euen originally that to prepare way vnto inheritance or any other good that was like to accrue vnto a man by succession or to auoyd any inconuenience that might keep him from promotion as may appeare by this practize following Priests in the beginning of the Raigne of Henry the 3. Constitut Othâ—n innotuit de vxovatiâ— Ã Beneficijs amouendis yet married secretly their Children were counted capable of all inheritance and other benefits that might grow vnto them by lawfull Marriage so that they were able to proue that their parents were lawfully married together by witnesses or instruments which manie Children did eyther vpon hope of some preferment that by succession or otherwise was like to come vnto them or to auoid some inconuenience that otherwise might light vpon them for the want of that proofe some their parents yet liuing others their parents being dead and the procéedings before the Ordinarie was holden good to all intents purposes euen in the Common Law for otherwise they would not haue so frequented it for as yet there was made no positiue Law against Marriages of Priests or Ministers but the Church of Rome then plotting against it for that by that they pretended the cure of Soules was neglected the substance of the Church wasted and dissipated did by Otho then Legate a Latere to Gregory the 9. order by a Constitution that all such Ministers as were married should be expelled from their Benefices that their Wiues Children should be excluded from all such liuelyhood as the Fathers had got during the time of the Marriage either by themselues or by any middle person that the same should become due vnto the Church wherein they did reséed and that their children from that time forth should be disabled to inioy holy orders vnlesse they were otherwise fauorably dispenced withall which Constitution although it wrought to that effect to barre Priests for that time of their Marriage vntill the light of the Gospell burst out and shewed that that doctrine was erronious yet to all other effects the procéeding 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 he 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 â—ar as concerning those things wherein the Ecclesiasticall Law is hindered by the Temporall in their proceedings contrarie to Law Statute and custome aunciently obserued which was the third part of my generall diuision Now it followeth that I shew wherin the Ecclesiastical law may be relieued so both the laws know their own bounds and not one to ouerbeare the other as they doe at this day to the great veration of the subiect and the intollerable confusion of them both which is the last part of this Treatise The meanes therefore to relieue the profession of the Ciuile Law are two The first is by the restoring of those things which haue bin powerfully by the Common Law taken from them the bringing of them back againe vnto their old and wonted course The other is by allowing them the practise of such things as are grieuances in the Common wealth and fit to be reformed by some court but yet are by no home-Law prouided for The first of these stands in two things whereof the one is the right interpretation of those Lawes statutes and customes which are written and deuised 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 defectiue in the penning made in the behalfe as it is pretended of the Ecclesiasticall profession but yet by reason of the vnperfect penning thereof are construed for the most part against them The right interpretation of the Lawes Statutes and Customes pertaining to the practise standeth as is pretended in the Iudges mouth who notwithstanding hath that authoritie from the Soueraigne and that not to iudge according as him best liketh but according as the right of the cause doth require The supply or reforming of that which is ouerplus or defectiue is in the Parliament so notwithstanding as that the Prince euermore breatheth life into that which is done Lawes Statuts or Customes are then best interpreted whenas the verie plaine and naturall sence of them is so sought after and no forraine or strained exposition is mixt with them for that turneth Iustice into wormewood and Iudgement into gall then that the Iudge be noÌ„t to subtill in his interpretation but follow such exposition of the Laws as men of former age haue vsed to make if they be not plainly absurd and erronious for oft shifting of interpretations bréedeth great variance in mens states among such as haue busie heads much discrediteth the Law it selfe as though there were no certainty in it with which although the sage Iudges of our time cannot bee charged for oght that I know yet I cannot tell how men much complaine that lawes are far 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 in the spirituall Courts where the interpretation vpon the thrée Statutes of Tiths made by King Henry the eight and Edward his son among sundry other inconstancies of other Lawes hath such great varietie of sence and vnderstanding in sundry points thereof as that if the makers thereof were now aliue and the first expositors therof sate in place of Iudgement againe the Statutes being measured by the interpretation they now make of them would hardly acknowledge them either to bee the Statuts that they made or the other did after expound and declare for euery of these Statutes and the sence that was giuen of them was wholy for the benefit of the Church according to the tenor thereof but as they now receiue explication they are not onely not beneficiall vnto the Church but the greatest hynderance to the same that may be for the words are made to iar with the sence and the sence with the words neither is there kept any right
procters and money for redemption of sin so that it will be no strange matter to haue this kind of suit allowed vnto the Ecclesiasticall Court Further whereas there are in the Statute of Edward the sixt chapter 13. in the beginning almost of the said Statute two clauses vnder paine of for faiture one of treble value for Tythes carried away before they were diuided set out or agreed for The other of double value where the Tythes were hurt or impaired by the partie stopping or letting him that had interest therunto to carrie them away or by withdrawing or carrying them away himselfe and the same is ordered by a clause in the second braunch thereof reaching vnto them both for that a clause put in the end of two sentences streacheth it selfe indifferently vnto them both if there be no more reason it should belong to the one than the other as there is not in this case for if it were not so the first penaltie had no order set downe how it might be recouered that the same shall be recouered according to the Kings Ecclesiastical Law to which if there were added this word onely and not elswhere or otherwise and they martialed in their right places there were nothing more sure or strong Moreouer whereas in the first prouiso of that Statut it is decréed that none shall be compelled to pay any manner of Tythes for any Here ditaments which by the Laws or Statutes of this Realme or by any Priuiledge Prescription or composition Reall are not chargeable therewithall whereby it is doubtfull in what Court the said Exemptions are to be alleaged if there were inserted these words or other of like nature the said Lawes Statutes Priuiledges Prescriptions or Compositions Real to be alledged argued trauersed and determined before the Ecclesiasticall Iudge only according to the forme of the Ecclesiasticall Lawes and not elswhere vpon like for faiture of treble damages as is aforesaid it would make this point sure vnto the Ecclesiasticall Law Ouer and beside this whereas in the same statute there is a discharge allowed to barren heath wast ground in some for not paiment of tithes in other for the manner of paiment of them for the space of seauen yeares after the improuing and conuerting of them into Arrable ground or meadowe it would make the matter plaine which lawe shoulde haue the pronouncing thereupon if there were added these or the like wordes so the same ground be proued in forme of law in the Ecclesiasticall Court to be barren heath and wast Lastly wheras in the said Statut among other limitations of causes wherin the Ecclesiasticall Iudge is not to deale by vertue of the said statut there is one in these words néer the end of the said statut ne in any matter wherof the Kings Court of right ought to haue Iurisdiction which limitation is so vage large that therout there may be forged as many diuers kinds of Prohibitions as the Poets fained Vulcan euer made thunderboults for Iupiter And therfore it were very wel coÌ„sonant to the good meaning of the said statut this vagenes were restrained reduced to a more certainty of matter by these or like words By any antient law or statut of this land And so far as concerning the imperfection of the said three Statuts and how they may be amended and made reducible to the first meaning and intent of the makers therof by some smale supplie alteration or change of wordes the sence and ground-work standing euer the same according to the wisdom of his Maiestie his great counsel assembled in parliament Now it followeth I shewe wherein the practise of the Ecclesiastical Law vnder which I comprise the Ciuile Lawe so far as it is in vse among vs may be increased to the benefit of the subiect the inlargement of the profession without the preiudice of the common law And that I may first begin of the pietie of Fathers towards children children againe towards their parents which is the beginning of all common wealths for euen Nature it selfe hath taught that not only in the most brutish people that be but also setled it in the sauagest kind of beasts that are vpon the earth the one to cherish that which it selfe hath brought out and the other to loue againe that which hath brought it out and yet what Law is here in England which prouideth for the one or the other vnlesse it be the statut of the eight of Elizabeth that is but for poore folks children onely where otherwise they should be a burthen to the Parish but for the Parents themselues or other children that are cast off either by the negligence or the vnnaturalnesse of the one toward the other there is no prouision at all Yet by the Ciuile Law there is a purueiance made whereby both the Father is compelled to acknowledge his child if ff de agnoscend alendu liberis vel parentib C. de alâ—ndis liberis vel parentib ff de ventre inspiciendo custodieÌ„doque partu ff de offiâ—io proconsuâ—is l. nequic quam §. de pâ—ano there be any variance betwéene the husband and the wife vpon any Iealousie or suspicion of Adulterie if the same cannot be prooued by the womans owne confession by witnesses by the act it selfe or some other violent presumption and to norish and maintaine the same but if the fault appeare against her and it be so sentenced by the Iudge then may he as well refuse the one as the other but for other children vpon whom there is no such doubt the Parents may be constrained to maintaine cloth and féed them and to set them out a Porcion of their goods so that either the state and facultie of the Parents will beare it or the children haue not deserued to the contrarie wherefore they should not in that sort be prouided for And as the Father in this sort is bound vnto the Child so the child againe is obliged vnto his Parents to prouid for their sustenance so far forth as their abilitie will reach vnto for it is very vnnaturall the Parents should want so long as the children haue meanes to relieue them In both which cases if either the Parents refuse to admit of their Children or the Children againe refuse to yéeld comfort vnto their Parents the Iudge may interpose his authoritie and inioyne each to maintaine other according to their abilitie and as to his discretion shall séeme meet which if any of them should deny to yéeld vnto the Iudge may by Distresse of their goods taken and sold to the value thereof compell them to performe his order and yet that onely in case of Maintenance and not to discharge debts wherein either of them stand bound vnto their creditors A man here in England dying and leauing his wife Executrix shée after marrying carrieth away all his state vnto her second busband who giues spends therof as him listeth without any regard