if the usage and custome of the payment it selfe had not beene subject to the Ecclesiasticall cognisance for in vaine shall a man sue for that the Law allowes him no course to come by if it be denyed in the speciallest L. Finals ff de officio ejus cut mandata est turisd l. 3. ff de penu legata point belonging to that suite for this is undoubted Law where ever there is an authority or Iurisdiction granted there are in like manner granted all those things without which that authority or Jurisdiction cannot bee perfected or performed SECT 3. That customes of payment of tythes are triable onely at the Ecclesiasticall courts ANd therefore it is without question as Tythes by the said Statutes are onely recoverable by the Ecclesiasticall Law and not elsewhere so also the custome whereby they are paid is only triable at the Ecclesiasticall Law Otherwise this inconvenience will follow thereupon which in all other Lawes beside this of ours is a great absurditie Bartol l. nulli C. de iudicijs Glos. c. significaverunt de iudicijs that the connexitie of the cause which the Civilians call Continentiam causarum will be dismembred and disjoyned which by all good pollicie together with all her parts emergent or annexed ought to be handled discussed and determined before one and the selfe same Judge one I meane not in number but one in profession for otherwise I should by this assertion barre Appeales which is not mine intent Which course if it were held here in England causes should not be drawn peece-meale in such sort as Medea tore her brother limme-meale and one part of it carried to this Cicero pro Murena Court another to that like unto the rent lims of the childe that were cast here and there by Medea thereby to hinder her father from pursuing her but all should be ended in one and the selfe same Court which would be a great ease to the subject who now to his intolerable vexation and excessiue charges is compelled to runne from Court to Court and to gather up as it were one lim of his cause here and another there and yet happily in the end cannot make a whole and perfect body of it Beside it is a mighty disorder in a Common-wealth thus to jumble one Jurisdiction with another the very confusion as well of the one Law as the other for as Kingdomes are preserved by knowing their bounds and keeping their limits so also Jurisdictions are maintained and upheld by containing themselves within the lists or banks of their authoritie Further unles they will grant that there is an Ecclesiasticall custome as there is a Secular Custome and that the one is as well to be tried in the one Court as the other is in the other they will make their own Doctrine in the before rehearsed Prohibition voyde where they will have it certain that there is a Secular Custome if there be a Secular Custome then doubtlesse there is also an Ecclesiasticall or Spirituall custome for the word Secular is not put in that Glo 〈…〉 Clem. unica in verbo aternaliter de summa tâ—â—nit fide catholica place absolutely but relatively and the nature of Relatives is one to put another and one to remove another but in the Secular customes they barre the Civilian therefore they grant him the spirituall for of contrary things there are contrary reasons and contrary effects and what that which is proposed doth worke in that which is propounded L. Fin. §. plus autem de legatis 3. â—bâ— Angel the same againe that which is opposed doth worke in that which is opponed by which Rule as Temporall Lawyers are to deale in Temporall Customes and spirituall men are not to intermeddle therein so also Ecclesiasticall Lawyers are to deale in Ecclesiasticall causes and Temporall Lawyers are not to busie themselves thereabout And that this was the intent of the King when hee first received the Church into his protection with all the priviledges thereof may appeare hereby that having united both the Jurisdictions in his owne person he did not jumble them both together as now they are but kept them distinct one from the other not onely in authorising the Ecclesiasticall Courts that were before but also in using the very words and phrases that the Jurisdictionaries Ecclesiasticall did use every where in their writings even these words whereupon men now take hold to frame Prohibitions viz. according to the laudable customes and usages of the parish and places where such Tythes grow which were the words of Innocent the third in the Decretals upon the title of Tythe long before these Statutes were made or any other Statutes concerning the true payment of Tythes and Linwod in the same title of Tythes often useth the very selfe same words and phrases that the other doth so that if these words made no Prohibition before the Statute as I thinke it cannot well be shewed to the contrary neither ought they to doe it now since the Statute for that they are spoken still in the Church businesse and not in a temporall matter whose government although it be under one and the selfe same Prince that the temporall state is yet is it distinct from the same as ever it hath beene since there hath beene any setled forme of Church-government in any 1 Cor. 5. common-wealth as may appeare both by the example of S. Paul which never goeth to any temporall power to punish the incestuous person although there were sundry lawes then both in Greeke and Latin written of these matters but doth it by the spirituall sword alone and also by that that in matters of jarre for worldly causes betweene brother and brother hee forbids such as were new Christians to goe to 1 Cor. 6. law before Infidels but adviseth them rather to appoint Judges among themselves to decide such controversies which albeit in those dayes was meant as well of lay Christians as of the Ministers of the Gospell for that the number of them then was small and the causes of suit they had one against an other were not many and might easily be ended by one and the selfe same consistorie yet when the number of the Christians increased and the Church got some rest from persecution the Jurisdiction was againe divided and as there were secular Courts appointed by Princes wherein temporall mens causes and lay businesses were heard so there were also by the same authoritie erected Ecclesiasticall Courts and Bishops audiences wherein either Ecclesiasticall mens causes alone or such as they had against C. de Episcopali audienta â—ertia Lay men or Lay men against them were treated of and determined So that this was no new devise of Henry the eigth or Edward his Sonne that when they tooke upon them the supremacie over the Church as they had before over the common-wealth they did not mishmash both the States together and made one confused heape
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
is death Of such as despitefully on every light trifle sweare by God and * The crime of Blasphemy was so odious to the Emperour that he thought God would never suffer a blasphemer to goe unpunished for sins of this nature saith he the world is visited with famines plagues and pestilences therefore the Law heere provideth that a blasphemer shall undergoe ultimum suppltoium If thou meetest saith Chrysostome a man blaspheming 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 S 〈…〉 ke him a boxe on the eare give him a dash in the mouth and sanctifie thy hand with a 〈…〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a. free Hom. 1. ad Pâ—p A 〈…〉 chenum pag. 46â— edâ— Sancti blaspheme his holy name against whom also is provided the sentence of death That the Justices of Peace or other Officers to that purpose appointed speedily dispatch the businesse of those which are of their Jurisdiction that such as come as strangers and forreiners out of other countries having no just cause of their comming be sent back againe with their substance to such places as they came from but if they be idle vagabonds and rogues or other like valiant beggers they either drive them out of the place or compell them to labour yet evermore having regard to provide for such as are honest poore old sick or impotent That Clerks be first convented before their Ordinarie and that the Ordinarie doe speedily end the matter that they may not be long absent from their benefices and that they be not drawne before temporall Judges unlesse the nature of the cause doe so require it as that it be a meere civile cause or a criminall cause belonging wholely to the Temporall court wherein if a Clerke shall be found guilty he shall first be deprived from his ministerie and then shall be delivered over into the Secular hands but if the crime be solely Ecclesiasticall the Bishop alone shall take knowledge thereof and punish it according as the Canons doe require That where one dieth without issue leaving behind him brethren of the whole bloud brethren of the halfe bloud the brethren of the whole bloud have the preheminence in the lands and goods of the deceased before the brethten of the halfe bloud whether they be of the fathers side or the mothers side That no man make Armour or sell it without the Princes leave unlesse they be knives or other such like small weapons SECT 8. What is the matter of the seventh Collation THat proofe by witnesses was devised to that end that the truth should not be concealed and yet all are not fit to be witnesses but such alone as are of honest name and fame and are without all suspition of love hatred or corruption and that their dispositions be put in writing that after the witnesses be published and their depositions be knowne there be no more production of witnesses unlesse the partie sweare those proofes came a new unto his knowledge If Parents give profusely to one of their children the other notwithstanding shall have their lawfull portions unlesse they be proved to be unkinde towards their parents That women albeit they be debtors or creditors may be Tutors or Curators to their children and that there is not an oath to be exacted of them that they will not marry againe so that they renounce their priviledge granted unto them per Senatûs consultum Velleian and performe all other things as other Tutors doe That Governours of Provinces are not to leave their charges before they are called from thence by the Prince otherwise they incurre the danger of Treason That womens Dowries have a priviledge before all other kinds of debt that what Dowrie a woman had in her first marriage shee shall have the same in her second marriage neither shall it be lawfull for her father to diminish it if it returne againe unto his hand That a man shall not have the propertie of his wives dowrie neither a woman the property of that which is given her before marriage but the property of either of them shall come unto their children yea though they marry not again SECT 9. What is comprised in the eigth Collation WIls or Testaments made in the behoofe of children stand good howsoever imperfect otherwise they De Testament imperfect § Nos â—g 〈…〉 are but they are not availeable for strangers but strangers are they which are not children neither mattereth it whether the Will or Testament be writ by the fathers hand only or by some other body by his appointment and as the father divideth the goods among the children so they are to have their parts Of Hereticks and that such are Hereticks which doe refuse to receive the holy Communion at the Ministers hand in the Catholick Church That Hereticks are not to be admitted to roomes and places of honour and that women-Hereticks may not have such priviledge as other women have in their Dowries That is called marriners usurie that is wont to be lent to Marriners or Merchant-men specially such as trade by sea which kind of lending the Law calleth passage-money in which kinde of usury a man cannot goe beyond the 100. part That Churches enjoy a 100. yards prescription That such things as are litigious during the controversie are not to be sold away A litigious thing is that which is in sute betweene the plaintife and defendant That while the sute dependeth there be no Letters or Edict procured from the Prince concerning the cause in question but that the cause be decided according to the generall Lawes in use That in Divorces the children be brought up with the innocent partie but at the charges of the nocent and that Divorces be not admitted but upon causes in Law expressed That no woman whose husband is in warfare or otherwise absent shall marrie againe before she have certaine intelligence of the death of her former husband either from the Captain under whom he served or from the Governour of the place where he died and if any woman marry again without such certaine intelligence how long soever otherwise her husband be absent from her both shee and he who married her shall be punished as adulterers and if her former husband after such marriage returne back againe shee shall returne againe to her former husband if hee will receive her otherwise shee shall live apart from them both If any man beat his wife for any other cause than for which he may be justly severed or divorced from her hee De haered 〈◊〉 inteslat § Si quis autem shall for such injurie be punished If any man conceive a jealousie against his wife as that she useth any other man more familiarly than is meete shee should let him three severall times admonish him thereof before three honest and substantiall men and if after such admonition he be found to commune with her let him be accused of adultery before such a Judge who hath authority to correct such offences SECT 10. What is the
there is any right use within the Church Some other are out of use as well among the Civile as Criminall titles because the matter that is therein treated of is knowne notoriously to belong to the conusance of the Common Law at this day as the Titles of Buying and Selling of Leasing Letting and taking to Farme of Morgaging and Pledging of Giving by deed of gift of Detecting of Collusion and Cosenage of Murder of Theft and receiving of Theeves and such like SECT 2. That the Titles lastly mentioned did anciently belong unto the Court Spirituall and the reasons which moved the Author so to beleeve The first Reason ANd yet I doubt not but even these matters as well Civile as Criminall or most of them were anciently in practise and allowed in Bishops Courts in this Land among Clerks to the which I am induced by three Reasons First that I finde not onely the forrein Authours of the Decretals but also the domesticall Authours of the Legatines being all most excellent wise men as the Stories of their severall ages do report to have enacted these severall constitutions and to have inserted them not onely in the body of the Canon Law but also in the body of the Ecclesiasticall Lawes of this Land and that some wise men sundry yeares after their ages doe write and comment upon the same as things expedient and profitable for the use of the Church and the government of the Clergie in those dayes neither of which I doe presume they would have done if in those ages there had not beene good use and free practice of them SECT 3. The second Reason SEcondly that I finde in the Code of Justinian by sundry Lawes some of his owne making some others of other Emperours before his time even from the daies of Constantine the great Bishops in their Episcopall audience had the practice of these matters as well Criminall as Civile and to that end had they their Officials or Chancellours whom the Law calleth Ecclesiecdici or Episcoporum Ecditi that is Church-Lawyers or Bishops-Lawyers men trained up in the Civile and Canon Law of those ages to direct them in matters of Judgement as well in Ecclesiasticall Criminalâ— matters as Ecclesiasticall Civile matters And that these which now are Bishops Chancellours are the very selfe same persons in Office that anciently exercised Ecclesiasticall Jurisdiction under Bishops and were called Ecclesiecdici it may appeare by that which Papias an old ancient Historiographer cited by Gothofred in his Annotations upon the foresaid Law Omnem in the Code title de Episcopis and Clericis and upon the § Praeterea writeth of them who saith thus That Ecclesiecdici or Ecdici were those that were aiders assisters to the Bishops in their Jurisdictions not astrict or bound to one place but every where through the whole Diocesse supplying the absence of the Bishop which is the very right description of the Bishops Chancellours that now are who for that they carry the Bishops authority with them every where for matters of Jurisdiction and that the B. and they make but one Consistory are called the Bishops Vicars generall both in respect their authority stretcheth it selfe throughout the whole Diocesse and also to distinguish them from the Commissaries of Bishops whose authority is onely in some certaine place of the Diocesse and some certaine causes of the Jurisdiction limited unto them by the Bishops and therefore are called by the Law Judices or Officiales foranei as if you would say Officiales astricti cuidam foro dioeceseos tantùm Gloss in Clement 2. de Rescrip So that it is a very meere conceit that a certaine Gentleman very learned and eloquent of late hath written That Chancellours are men but of late upstart in the world and that the sloth of Bishops hath brought in Chancellours wheras in very deed Chancellours are equall or neer equall in time to Bishops themselves as both the Law it selfe and Baldus l. aliquando ff de officio Proconsulis Couar li. 3. variarum resolut c. 10. num 4. Shrozius lib. 1. de vicario Epis q. 46. num 2. 4. 12. 13. Stories doe shew yea Chancellours are so necessary Officers to Bishops that every Bishop must of necessitie have a Chancellour and if any Bishop would seeme to be so compleat within himselfe as that he needed not a Chancellour yet may the Archbishop of the Province wherin he is compell him to take a Chancellour or if he refuse so to doe put a Chancellour on him for that the Law doth presume it is a matter of more weight than one man is able to sustain to governe a whole Diocesse by himselfe alone and therefore howsoever the nomination of the Chancellour bee in the Bishop yet his authoritie comes from the Law and therefore Hostiensis in sumusa de officio Vicarii numero 2. in fine nominationem ab Episc potestatem verò à â—ure recipiunt he is no lesse accounted an Ordinarie by the Law than the Bishop is But truth it is not the sloth of the Bishops but the multitude and varietie of Ecclesiasticall causes brought them in which could not bee defined by like former precedents but needed every one almost a new decision And the reasons why Princes in the beginning granted to Clergie men these causes their Consistories for from Princes were derived in the beginning all these authorities as also the Religion it self is setled protected in kingdoms by Princes before there can be had a free passage thereof were First that the Clergy-men therby might not be drawn from their prayer and exercise of divine service to follow matters of suits abroad 2ly that they were like to have a more speedy better dispatch more indifferency before a Judge of their owne learning than before a Judge of an other profession for this is true and ever hath beene and I feare ever will be unto the end that is said in the Glosse and is in common saw Laici oppidò semper infesti sunt Clericis Lastly That Clerks suits and quarrels should not be divulged and spread abroad among the Lay people and that many times to the great discredit of the whole profession specially in criminall matters wherein Princes anciently so much tendered the Clergie that if any man among them had committed any thing worthy death or open shame he was not first executed or put to his publick disgrace before he was degraded by the Bishop and his Clergie and so was executed and put to shame not as a Clerk but as a Lay malefactor which regard towards Ecclesiasticall men it were well it were still reteined both because the consideration thereof is reverent and worthy the dignity of the Ministerie whose office is most honourable and also for that it is more ancient than any Papisticall immunitie is SECT 4. The third and last Reason THe third reason that moves moe that I should beleeue that these Titles sometimes were here in exercise among
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
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
the Code THe first Booke of the Code treateth of Religion and the Rites and Ceremonies thereto belonging whereof I said there was no speciall Tractate in the Digest saving that it devideth the publick right into that which concernes the Church and Church-men and the Magistrates of the Common-wealth prosecuting the later branch thereof onely and omitting the first because out of that Heathenish Religion which was used in those ancient Lawyers dayes and those superstitious Rites whereof their Bookes were full nothing could be taken that might serve for our Religion whereupon he instituted a new discourse thereof in the Code beginning first with the blessed Trinitie one in essence and three in person wherein he sets downe a briefe summe of our Christian faith agreeable to the doctrine of the Prophets and Apostles and the foure first generall Counsels the Nicene Constantinopolitan Ephesine Calcedon forbidding any man publickly to dispute or strive thereabout taking occasion upon the Nestorian heresie which not long before had sprung up and had mightily infected the Church which Justinian by this confession of Faith so published to the whole world and a penall Edict joyned thereunto hoped to represse After hee hath set downe a full and sound confession of the Christian faith conformable to the Primitive Church next hee addeth a title of the holy Church it selfe and of her priviledges which either concerne Ecclesiasticall mens persons themselves or their state and substance or the actions one Ecclesiasticall man had against an other or with or against Lay persons where also he prosecuteth the degrees of Priests or Ministers their offices orders and how the same are to be come by that is without bribes or Simonie or other worldly respect save the worth of the person onely and the rights of holy places Priests in the Law are called from the Latine Sacerdotes either because their office was Deo saera dare to sacrifice to God or else because they were consecrated and as it were severed from the rest of the people and given up to God they were also called Elders answerable to the Greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 either for that they were so in age * In Authent de sanct Episcop § Presbyterum Collat. 9. the Law having provided that no man should be promoted to the dignitie of a Priest till hee were 35 years old or else because they ought to be such in manners and carefull carriage of themselves Amongst Priests or Ministers Bishops have the first place who are as it were the †〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Overseers and Superintendents of the rest so called of their watchfulnesse care labour and faithfulnesse in teaching the people and doing other duties which they owe unto the Church The lowest degrees of men in the Ecclesiastical Hierarchy were the Clerkes as the word Clericus is restrein'd to a narrower acception For in the generall it is most properly applyed to all degrees of the Clergie and is a terme contradistinct to the Laitie and they are called Clergie from the Greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quia de sorte Domini sunt vel quia Dominus sors est part Clericornm either because God is their portion and lot or because they are his as Papias hath observed To Bishops Priests and other of that ranke did appertain the care of Hospitals whereof some were for Orphans some for Infants some for impotent and diseased persons some for poore people some for strangers and other like miserable persons and therefore together with the title of Bishops and Clerks is joyned the title of Hospitals or Almes-houses In place next after the Bishops themselves comes their power and audience for albeit the chiefest office of a Bishop is to instruct the people in the doctrine of the Word and in good example of life yet forasmuch as all will not be obedient unto the Word neither brought by the persuasion thereof to good nurture and to be kept in order and the eminencie of the degree wherein the Bishops are placed is not sufficient to keepe the people in obedience without some power and jurisdiction and because the Church it selfe is the mother and maintainer of Justice therefore there is by the Emperour himselfe and his predecessours as many as professed Christianity certain peculiar jurisdictions Ecclesiasticall assigned to the Bishops more worthy than the Civile over persons and causes Ecclesiasticall such as touch the Soule and Conscience or doe appertein to any charitable or godly uses and over the Laitie so farre forth as either the Laitie themselves have beene content to submit themselves unto their government that is so farre as either it concernes their Soules health or the outward government of the Church in things decent or comely or that it concernes poore and miserable persons such as widowes orphans captives and such other like helplesse people are or where the Civile Magistrate cannot be come by or doth voluntarily delay judgement in all which anciently a Bishop was to performe double faith and sanctity first of an uncorrupt Judge and then of a holy Bishop But in many of these matters in these dayes the Laitie will not suffer themselves to be controll'd and therefore hath taken away most of these dealings from them yea even in charitable causes Immediately followeth a title of Hereticks Manichees Samaritans Anabaptists Apostataes abusers of the Crosse of Christ Jewes and worshippers of the hoast of heaven Pagans and of their Temples and Sacrifices whom the Bishop is not onely to confute by learning but also to suppresse by authoritie for he hath not the spirituall Sword in vaine The Hereticks Jewes and Pagans shall not have Christian men and women to be their servants that such as flie to the Church for Sanctuarie or claime the ayde thereof shall not be drawne from thence unlesse the offence be haynous and done of a pretensed and purposed malice in which case no Immunity is to be allowed them but wicked people are to be punished according to their desert agreeable to the word of God it selfe which would not have his Altar to be a refuge unto the wicked And so farre of that part of publick right which appertaineth to the Priests or Ministers and their Function which was omitted in the Digest but prosecuted in the Code Now it followeth that with like brevity I run over the three last Bookes of the Code which themselves were rather shadowed in the Digest in the title of the right of the Exchequer than in any just proportion handled SECT 3. The Argument of the 10. Booke of the Code THe first therefore of them setteth out what is the right of the Exchequer and in what things it standeth as in goods excheted because there is no heire unto them or that they are forfeited by any offence worthy death or otherwise How such as are in debt to the Exchequer and their suerties are to be sued Of the right of those things which the Exchequer sels by outcry where he that offereth most
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
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
us in the Ecclesiasticall Courts is that I find Glanvill Glanvill lib. 12. cap. 15 de Legibus Angliae who himselfe lived under Henry the second and was Lord chiefe Justice of England in his dayes sort to the Ecclesiasticall Courts the plea of Tenements where the suit is betweene two Clerkes or betweene a Clerke and a Lay man and the plea is De libera eleemosina feodi Ecclesiastici non petitur inde recognitio whether the frank fee be Lay or Ecclesiasticall where also is farther added that if it be found Idem lib. 13. cap. 25. by the verdict of legall and sufficient men that it is of Ecclesiasticall fee it shall not bee after drawne to Lay fee no though it be held of the Church by services thereunto due and accustomed secondly whereas land is demaunded in Idem lib. 7. cap. 18. marriage by the husband or the wife or their heire and the demaund be against the giver or his heire then it shall be at the choice of the demander whether he will sue for the same in the court Christian or in the secular Court For saith he it pertaineth unto the Ecclesiasticall Courts to hold plea of dowries which he calleth Maritagia if so be the plaintife so make choice of those Courts for the mutuall affiance that is there made betweene the man and the wife for marriage to be had between them and there is a dowry promised unto the man by the womans friends neither shall this plea bee carried unto the temporall Courts no though the lands be of Lay fee so that it be certaine the suit is for a Dowry but if the suit be against a stranger it is otherwise Againe the Kings prohibition for bidding the Clergie the dealing in many things which are of Lay fee forbids them Anno 24. Ed. 1. no one thing that is of Ecclesiasticall fee and to shew the Princes meaning precisely therein that it was not his intent by that Prohibition to restrain the Ecclesiasticall Judges for proceeding in matters of Ecclesiasticall fee hee sets downe in very tearmes these words Recognisances touching Lay fee as though he would hereby signifie to all men that he would not touch matters of Ecclesiasticall fee which did then wholly and properly appertaine to the triall of the Christian Court as hath beene before vouched out of Glanvill who for the place he then held may be thought to have knowne the Lawes of England as then they stood and the right interpretation thereof as well as any man then or now living And yet because there were some things of Lay fee which the Clergie then had cognisance of and as yet have in some measure as causes and matters of mony chattels and debts rising out of Testaments or Matrimonie because hee would have whatsoever belonged to the Clergy to be undoubted excepteth them from those things which belong to the Crown and dignity and leaveth them to the ordering of the Christian Courts which is nothing else but an affirmance of that which Glanvill and the rest of the ancient English Lawyers Bracton and Britton said before Adde hereunto the provinciall Constitution Aeterna de poenis made in the dayes of Henry the third which plainly shewes that in those dayes all personall suits betweene either Clerk Clerk or between Lay-men complaynants Clerkes defendants for ever the Plaintife must follow the Court of the Defendant which to the Ecclesiasticall men then was the Ecclesiasticall Court were tryed by the Spirituall Law not by the Temporall Law which practise for that it doth accord with the judgement of those ancient Lawyers that have beene before cited and with the Prohibition it selfe which there restraineth onely calling of Lay men to make recognisances of matters of Lay see it may be a great argument that these things were of the Ecclesiasticall right in those dayes from which I see not how the Ecclesiasticall Courts are falne for I see neither Law nor Statute to the contrary unlesse perhaps they will say the Statute of the 25. of Henry 8. cap. 19. tooke the same away as being hurtfull to the Kings Prerogative royall and repugnant 25. H. 8. cap. 19. to the Lawes Statutes Customes of this Realme which whether they be or be not taken away by the stroake of that Statute I leave it to men of better experience in these matters than my selfe to judge But yet this I finde by experience to be true That where there are two divers jurisdictions in one Common-wealth unlesse they be carefully bounded by the Prince an equall respect carried to both of them so farre as their places and the necessary use of them in the Common-wealth requires as the advancement of the one increaseth so the practise of the other decreaseth specially if one have got the countenance of the State more than the other which is the onely cause at this day of the overflowing of the one and the ebbing of the other but it is in his Sacred Majestie to redresse it not by taking any thing from that profession that is theirs but restoring to this profession that which is their owne but hereof 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 SECT 5. That some titles of the Canon Law are granted to be of absolute use with us and that of some other there is question made FOr the rest of the matters that belong to the tryall of the Ecclesiasticall Courts some are acknowledged to be absolutely in use some other are challenged to be but in a certaine measure in use In absolute use are those which never had any opposition against them which almost are those alone which belong to the Bishops degree or order for all things which come within the compasse of the Ecclesiasticall Law are either belonging to the Bishops degree or his jurisdiction To his degree or order belong the ordering of Ministers Deacons the confirmation of Children the dedication of Churches and Churchyards and such like none of which have beene challenged at any time to belong to any other Law The second sort is of them that belong to the Bishops jurisdiction which is partly voluntary 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 have beene called in question but yet rescued and recovered againe by the wise and grave Judges themselves who have found the challenge of them to be unjust But what doth belong to either of them in private or what causes doe appertaine to the whole Jurisdiction in generall because they have beene already particularly set downe by that famous man of worthy memory Doctor Cosin in his Cosin in his Apologie part 1. c. 2. learned Apologie for certaine proceedings in Ecclesiasticall Courts I will not make a new catalogue of them but send the Reader for the knowledge thereof unto his Booke but yet in my
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
somtimes at Rome in Italy somtimes at Avignion in France sometimes in other places as by the date of the Bulls and other processe of that age may be seene which severall removes of his gave occasion to the Parliament of inserting the word Elsewhere in the body of those Statutes that thereby the Statutes providing against Processe dated at Rome they might not bee eluded by like Processe dated at Avignion or any other place of the Popes aboade and so the penaltie thereof towardes the offender might become voyde and bee frustrated Neither did the Lawes of this Land at any time whiles the Popes authoritie was in his greatest pride within this Realm ever impute a Praemunire to any Spirituall Subject dealing in any Temporall matter by any ordinary power within the Land but restrained them by Prohibition onely as it is plaine by the Kings Prohibition wherein are the greatest matters that ever the Clergie attempted by ordinary and domesticall authority and yet are refuted onely by Prohibition But when as certaine busie-headed fellowes were not content to presse upon the Kings Regall jurisdiction at home but would seeke for meanes for preferment for forrain authority to controule the Judgments given in the Kings Courts by processe from the Pope then were Praemunires decreed both to punish those audacious enterprises of those factious Subjects and also to check the Popes insolencie that hee should not venter hereafter to enterprise such designments against the King and his people But now since the feare thereof is past by reason all entercourse is taken away betweene the Kings good Subjects and the Court of Rome it is not to bee thought the meaning of good and mercifull Princes of this Land is that the cause of these Statutes being taken away the effect thereof should remain and that good and dutifull Subjects stepping happily awry in the exercise of some part of their jurisdiction but yet without prejudice of the Prince or his Regall power shall bee punished with like rigour of Law as those which were molesters greevers and disquieters of the whole estate But yet notwithstanding the edge of those Praemunires which were then framed remaine sharpe and unblunted still against Priests Jesuites and other like Runnagates which being not content with their owne naturall Princes government seeke to bring in againe that and like forraine authoritie which those Statutes made provision against but these things I leave to the reverend Judges of the Land others that are skilfull in that profession onely wishing that some which have most insight into these matters would adde some light unto them that men might not stumble at them and fall into the danger of them unawares but now to Prohibitions SECT 2. The impeachment thereof by Prohibition and what it is A Prohibition is a commandement sent out of some of the Kings higher Courts of Records where Prohibitions have beene used to be granted in the Kings name sealed with the seale of that Court and subscribed with the Teste of the chiefe Judge or Justice of the Court from whence the said Prohibition doth come at the suggestion of the Plaintife pretending himselfe to be grieved by some Ecclesiasticall or marine Judge in not admittance of some matter or doing some other thing against his right in his or their judiciall proceedings commanding the said Ecclesiasticall or marine Judge to proceed no further in that cause and if they have sent out any censure Ecclesiasticall or Marine against the Plaintife they recall it and loose him from the same under paine of the Kings high indignation upon pretence that the same cause doth not belong to the Ecclesiasticall or Marine Judge but is of the temporall cognisance and doth appertaine to the Crowne and dignitie Of 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 What are Prohibitions of Law 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 mentioned by the second of Edward the sixth where Judges Ecclesiasticall are forbid to hold plea of any matter contrary to the effect intent or meaning of the Statute of W. 2. Capite 3. The Statute of Articuli Cleri Circumspectè agatis Sylva Caedua the treaties De Regia Prohibitione the Statute Anno 1. Edwardi 3. Capite 10. or ought else wherein the Kings Court ought to have Jurisdiction Prohibitions of fact are such which have no precise word or letter of Law or Statute for them as have the other but What are Prohibitions of fact are raised up by argument out of the wit of the Devisor These for the most part are meere quirks and subtilties of law and therefore ought to have no more favour in any wise honourable or well ordered Consistorie than the equity of the cause it selfe doth deserve for such maner of shifts for the most part breed nought else but matter of vexation and have 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 provided that no Prohibition shall goe out but where the King hath the cognisance and of right ought to have and also by the fore-named Statute of Edward the sixth which forbids that any Prohibition shall be granted out but upon sight of the libell and other warie circumstances in the said Statute expressed by which it is to be intended the meaning of the Law-givers was not that every idle suggestion of every Attourney should breed a Prohibition but such onely should bee granted as the Judge in his wisdome should thinke worthy of that favour and if right and equitie did deserve it although as I must needs confesse the Statute is defective 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 upon Ecclesiasticall causes but I feare mee as emulation betweene the two Lawes in the beginning brought in these multitudes of Prohibitions either against or beside law so the gaine they bring unto the Temporall Courts maintaineth them which also makes the Judges they cesse not costs and damages in cases of consultation although the Statute precisely requires their assent and assignement therein because they would not deterre other men from suing out of Prohibitions and pursuing of the same The Prohibitions of the law as have beene before shewed are neither many nor much repined at because they containe a necessary distinction betweene Jurisdiction and Jurisdiction and imply the Kings right and Subjects benefit but the
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
uniformitie of Jurisdiction as that it is all by sea and all by land there may a thing be fained to bee done in one place that was done in another place without any mans prejudice for that in this case the place is not traversable so it bee not in Criminall matters where time and place is required that the accuser doe not wander from place to place with the injurie of the accuser for howsoever the place and the action is altered yet the truth of the cause remaineth one and the selfe same still And so farre as concerning actions of Trover in Admirall causes Now it doth follow that I should speake of like prejudices that grow to the same by actions of Trespasse but those will I passe over for that in so small a Treatise as this is I cannot goe over all and therefore will I onely put the Reader in minde that there are more devises rising out of the Common Law than one that infest the Admiralty But now to Wils and Testaments wherein they are impeached SECT 4. Concerning Wils and Testaments wherein they are impeached FOr matters of Wils and Legacies they are so proper to the triall of the Ecclesiastical Law of this Realm that the professors of the Common Law themselves doe oftentimes confesse and say they have no more to doe therewith than the Civilian hath to do with the knowledge of the matters of Franktenement and yet even these matters of Testaments and Legacies although Prohibitions be not so frequent in them as they are in the rest of Ecclesiasticall causes yet they are not quite voide of them that in some points wherein the very life and essence of a Will doth stand For whereas the ancient Romans knowing how subject matters of Wils are to forgerie and corruption on the one side and suppression and concealment on the other side to meet with all craft and subtilty whatsoever which might seize on them did most carefully provide that there should be seven witnesses at the least present at the making of every Will Testament except it were in time of some generall plague or sicknesse when so many witnesses could not conveniently be had together for fear of infection or that it were in the Countrie where there are small multitude of people And that those witnesses should be particularly required to that purpose with diverse other observations and circumstances tending all to the safe and sure making thereof which the Ecclesiasticall Law altered afterward in sundry points for that many true Wils were many times overthrowne for want of those precise solemnities It therefore reduced the whole number of those seven witnesses unto two onely agreeably to the Law of God and the Law of Nations where that number of witnesses is allowed as competent to prove any matter so that the same witnesses be honest and credible persons such whose faith is not doubted of The Common Lawyers because themselves in sundry matters very dangerously many times admit one witnesse and give him full credit and that in matters of great weight and importance as though all should bee squared to their rule and framed to their compasse if an Ecclesiasticall Judge in the probate of a Will contrary to the rules of his owne Law will not admit the testimony of one witnesse they forthwith fling out a Prohibition against him as though he had done an offence against the Crowne and dignitie in that he doth not allow those number of witnesses in the Probate of a Will that the Common Lawes of this land allow almost in every matter For answer to which if I should alleage the precise forme of the Ecclesiasticall Law which to the essence of a Will requireth this number of two witnesses or else holdeth it not for a Will but in cases inter liberos ad pios usus where the onely hand of the Father or Testator without witnesses serveth for a Will so the same be knowne to bee the Testators owne hand or so proved by comparison I would thinke to wise men I had said sufficiently but I will not rest hereupon but will convince themselves by themselves for doe they I pray you in their own proceedings where a Law or Statute requires more witnesses than one content themselves with one witnesse alone yea doe they not in all cases where a certaine number of witnesses are appointed to prove a fact by Law or Statute furnish the cause with so many witnesses as the case desires or else doe they not account the proceeding voide And will they thinke themselves so precisely bound to the keeping of the letter of the Common Law and will they not suffer the Civilian in like maner to cleave fast to the observation of the Civile Law especially when it hath the consent of the Law of God and the Law of Nations and is his Majesties Ecclesiasticall Law of this Land aswell as the other is his Temporall Law of the same I confesse it may be true many times which one man saith specially when there concurre therewith many great and violent presumptions and the party that reporteth it is of good credit but dangerous it is to open this gap to the malice of men for even so many things shall bee obtruded to the Judge for trueth which are starke lyes and many things shall bee pretended to bee gold in shew which in proofe and practise will be found to be no other thing but meere drosse And therefore well decreed the Emperour Lâ—juris urandi §. Simili modo C. de Testibus Constantine that no one mans testimony should bee heard though he were never so great a man in Court But perhaps some man will say If credit shall not be given oftentimes to one mans testimonie much wickednesse will passe away unpunished For reply to which I answer It is better to let a bad man scape than to punish a good and although it be true if a man may excuse himselfe by deniall no man will be found guilty so also it is true on the other side if it be enough to condemnation to be charged by one man alone without any other witnesses no man shall bee innocent and therefore the admittance of one witnesse in causes and the proceeding thereupon to judgement is very dangerous An other like barre to this they lay against Ecclesiasticall proceedings in matters of Testament whereas an Ecclesiasticall Judge proveth a Will wherein are Mannors Lands Tenements and other like Hereditaments bequeathed challenging this also to be of the Crowne and dignity as though the Ecclesiasticall Judge thereby took upon him to decree which lands were devisable by Will which not or would by his probate adde a strength unto the Will to make the devise good or bad whereas on the contrary part the Ecclesiasticall Judge by this act doth only testifie that such a person made such a Will that the same was proved before himselfe under his Teste for his last Will Testament but for the
supposititious I only know that they may bee so not that they are and however it be dull to entertaine any thing that shall be obtruded yet the rejection of ancient Authors and Councels should be warily concluded upon Thus much notwithstanding is recorded that by reason of the Arian incendiaries a compleat number of the Canons of this Councell was so rarely found that Athanasius himselfe who was present at the Synod was forc't to send into these parts to the Bishop of Rome that then was to desire from him a perfect copie because in the Easterne world few or none had escaped the fire of the Arians This wee have out of those Epistles which are supposed to have past betweene Pope Marke and Athanasius concerning the burning of the decrees of this first Nâ—câ—ne Councell and if these be true the Canons here are the lesse to be suspected But against the credit of those Epistles the Cardinals Bellarmine and Baronius have consented and it may well be thought they have some cause for that these Canons much availe their faction and depend not a little upon the authoritie of these Epistles yet their reasons against these Epistles are for the most part chronologicall and because such as these are subject to much hazard therefore our confidence in beleeving may be arbitrarie at our own disposing But be these Canons how they will yet a most expresse monument of this Quadripartite division of Church dues may be noted out of an Arabick Canon of the Councell of Antioch Canon 25. I say an Arabick not for curiositie but because I finde this matter more fully there set downe for the Greeke saith thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That the Bishop shall have the Church dues in his power that he may dispose of them to every one that needeth religiously and in the feare of God But the Arabick Canon more distinctly 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That the Bishop shall have at his disposing the Church dues and revenues to the end that he may divide and distribute them to his Clergie to the Parishioners for the repairing of Churches to the poore and needie and that he may take to himselfe what shall be necessarie for his owne expence c. This Quadripartite Division was used in most places but most principally in the RomaÌ„ Church For in some other the Bishop had the third part See Filesacus in his Booke De Sacra Episcoporum Authoritate Concerning the originall of a Parish in these two former Acceptions it may be acknowledged to bee a device of the ancient Roman Bishops and to have beene derived from them to other Nations But a Parish may be also taken for such a part of the Diocesse which is limited to some residentiarie incumbent allowed by the Bishop and maintained by the Church dues in his owne right And this consideration of a Parish most of all agreeth with those which we now have And it may very well be supposed that these later Parishes have had their beginning from the inconveniences of the former And the designement and limitation of these how ever it might have speciall encouragement from the devotion of lay men yet the principall stroke was alwayes given by the Ecclesiasticall to whom it pertained to consecrate the Churches and make them baptisteriall And that the dividing of Parishes should of right belong unto Ecclesiasticall men it may be the more reasonable because the first that ever divided any Parishes were the Roman Bishops and they did not onely so but also gave direction to other Prelates in their severall Provinces to doe the like ospecially if that be true which wee have formerly cited out of that Epistle of Pope Denis to the Spanish Bishop However Alexander the third C. Aâ—aritia De Prabend Dig. gave command to the Canons Regular of Yorke Diocesse that they should not presume to divide Parishes sine consensu Archiepiscops And some encouragement may he had from a decree made in a Synod holden at Westminster about the yeare 1147. which saith c. 4. Nullus Abbas nullus Prior nullus omnioò Monachuâ— aut Clericus Ecclesiam siâ—e decimam seu qualibet beneficia Ecclesiastica de dono laâ—ct accipiet sine propriâ— Episcopi authoritate consensu quòd si prasumptum fuerit irrita erit donatio hujuscemodi Chron. MS. Biblioth Bodleian And the like intimation is given in an other Councell holden at the same place in the yeare 1149. called by the most Reverend Father in God William then Lord Archbishop of Canterbury There it is said cap. 10. Vt nulla persona-Ecclesias vel decimas sen qualibet alia Ecclesiastica beneficia det vel accipeat sine consensâ— authoritate Episcopi If wee apply these decrees to the matter in hand wee may deduce some thing answerable to that which is inquired Besides Lay men were not to medle with the ordering of Tythe-payment and yet in this division of Parishes a principall respect was had to the consideration of Tythes and therefore it was that Parishes were limited with such great care and curiositie For Bartol said That if it were doubted concerning a house in what Parish it should stand it must bee conceived to bee of that into which it opens if it opened severall wayes a posterne gate was not respected but it was judged to belong unto that Parish into which it opened at the chiefe Gate At what time this last kinde of Parishes began else where wee enquire not when they began here at home wee finde not unlesse wee understand such as these in the Division of Honorius however they must be in use before the dayes of Edgar as it seemeth by the Sixon Lawes of that time See the Lawes of Edgar cap. 1. although otherwise the thing it selfe be more ancient and descends from the counsell of Saint Paul which he gave to Titus to appoint Tit. cap. 1. v. 5. Elders in every Citie But that Cities and Countries again are divided into severall Parishes it was the ordinance of Pope Dionysius about the yeare 266. and from him derived into this and other Realmes and the distinction thereof was chiefly devised that it might be knowne of what congregation every people were and that so they might be trained up in the Schoole of godlinesse under their owne Pastor or Minister But that now the division of Parishes doth serve to other politick uses it comes not of the first institution thereof which was meere Ecclesiasticall but it groweth out of a second cause that is because being so fitly and aptly primarily divided by Ecclesiasticall men as they are the Princes therefore did use the opportunity thereof for temporall services subdividing the same againe into many Tythings or like smaller divisions for the more speedy service of the King and better ordering of the common-wealth Which our ancient Fathers well knowing never called the same in question acknowledging therein the good they had received from Ecclesiasticall men by this partition of Countries into Parishes but men
of later age being lesse thankfull than they and loath to seeme beholding to Ecclesiasticall Courts for any matter of good order and disposition have arrogated the same wholly to the Temporall Courts as though the Ecclesiasticall Judge could not as well discerne what two or three honest men depose and say as concerning the limits or bounds of a Parish as twelve meane men of the countrie who are upon like depositions to give up their verdict But for the limits of Bishopricks I acknowledge that they are Temporall for that they were not primarily designed out by Ecclesiasticall men and their direction but were assigned to Provinces or Shires first described and distinguished by Princes but for Parishes neither reason nor antiquity concurres with them that they should be temporall or that they should be usurped 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 having a taste of these there may be like Judgement made of the rest SECT 5. That the clause of treble Dammages in the 13. chapter 2. Edward the sixt is to be sued in the Ecclesiasticall Courts onely OUt of the Statute of the 2. of Edward the sixt cap. 13. they raise many Prohibitions the first whereof in order of the Statute although the last in practise is the prohibition of treble dammages upon not dividing 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 meaning of this statute which would have those treble dammages in case of not justly dividing and setting out or not compounding for the Tythes before they be carried away be no lesse recoverable before an Ecclesiasticall Judge according to the Kings Ecclesiasticall Law than the forfeiture of double value by the letting and stopping of them to be carried 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 hatt it should stretch it self to the first branch of the provision as to the second and the second branch hangeth on the first by a conjunction copulative there is no hetorogeny or disparitie in the matter whereby it may not be as well 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 C. 6. tit 28. l. 1. omnia praecedentia maximè quando non resultaret intellectus contrarius juri as here it doth not for the intendment of of either branch of the Statute is to procure by their severall forfeitures a just and true payment of Tythes the recovery whereof as the precise words of the Statute in one member restraine unto the Ecclesiasticall Law so the Identitie of reason in the other member doth confirme it unto the same Law for where there is the like reason or equitie there ought to bee the like disposition or order of I. Illud ff ad l. Aquiliam Law Beside if the principall cause it selfe be triable in the Ecclesiasticall Court why should not those things which hang thereon bee tryed in the same Court for they are but as it were accessories to the principall and so not onely 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 absolving Further in that Court wherein the course of Justice already is begun the cause may with lesse labour and easier expences be ended being for the most part determinable by one sentence than that a new processe thereof should begin before another Judge who knoweth little or nothing of the principall matter and therefore cannot so easily decide the accessorie Lastly those which take this course first to surmise a forfeiture then to draw the originall suit whereupon the forfeiture grew into question bring in a proceeding far different from the common stile of all well ordered Courts in all Nations among whom the conusance of the cause and tryall thereof goeth before and the forfeiture or execution thereof followeth after But in this Hysteron proteron the execution is in the forward and the tryall is in the rereward In which doing they deale much like as Cacus the Gyant dealed with Hercules Oxen who to the intent that Hercules should not finde what way they were gon drew them backward by the tayle into his Cave but as that device served not Cacus but that Hercules had his Oxen againe so it is to be hoped the Reverend Judges of the Land will not long suffer this subtiltie to prevaile but as it came in like a Foxe and reigned as a Wolfe so in the end it shall dye and vanish away like a vaine device much like the destinie of Boniface the eigth for the reverend Judges are not onely to minister justice betweene man and man so that every man may have his owne and none be oppressed by an other but also they are to carrie an upright and indifferent hand betweene Jurisdiction Jurisdiction yea though themselves be parties to the matter in question so that one Jurisdiction eate not up an other as the Locusts in Egypt devoured up all the greene things of the land SECT 6. That the naming of Law or Statute in a Statute doth not make it to be of the Temporall cognisance if the matter thereof be Ecclesiasticall ANother rendevous they make of the words of this Proviso Law statute priviledge prescription or composition reall as though all which passeth under any of these tearms must belong to the triall of the Common Law and not to the cognisance of the Ecclesiasticall Law and that forsooth because these words and tearms are expressed in the Statute which is much like unto that as one would needes have a house to be Master Peacocks house because hee saw a Peacock sit upon 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 under the one Law or the other So that if the matter ordered in the Law or Statute be Temporall the cognisance shall bee Temporall if Spirituall then the case is determinable in the Ecclesiasticall Law for this Proviso is not prohibitorie as the last Proviso of this Satute is whereby Ecclesiasticall Judges are forbidden to
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
themselves which being once appropriated to God could be only his but to the dispensation of them according to which it was necessarie that the Bishop should dispose of the presentation and fill the places with such Inbumbents as might enjoy them in Gods Right and execute their function answerably to the Founders good purpose This Act of the Bishops being as by them it was accounted more a matter of Care than Power was usually understood by the moderate expressions of Nominare Prâ—sent 〈…〉 e or Commendare still saving the Right to God and to themselves only such a conscientious disposition thereof as might redound to his greater glorie This power the Bishops transferred to the Lay Patron yet so as it should be necessarie for the Patron to have recourse to the Bishop that hee might qualifie his Clerke for the Rectorie by ordination and that it should be lawfull for the Bishop to devest the Patron of this Right according as hee should be moved by such causes as were found to be of a considerable importance so it seemeth by the Law where the Patrons Right is said to be such a power in qua eos Ecclesia huc usque susti 〈…〉 t. De jur Patron C. Quoniam The reason that moved the Diocesan to let the Patron share with him in this prerogative was for the Patrons encouragement for so it must be conceived of this right that it was an honorable priviledge therfore the Abbot in his definition did well to call it jus honorificum This reason in respect of the Patron tooke place because of the great need which then was of those which were able and would be willing to erect or endow a Church for as much as all places at their beginnings were ever unfurnisht for we shall finde in some that they had no Churches at all but instead of a Church they were content to say prayers under a Crosse in the open field this is reported of our own Ancestors in the Peregrination of Wilibald Sic mos est Saxonica gentis 〈…〉 d in 〈…〉 ullis nobilium bonorúmque hominuÌ„ pradâ—â—s non Ecclesiam sed sanct a Crucis signum Dowino dicatum cum magno honore almum in alto erectum ad commodam diurna orationis sedulit atem solent havere Hodâ—peric Hierosolym Wilibald Ext at ad Canisium Tom. 4. Antiq. Lect. part 2 pag. 486 Edit Ingolst 1603. In other places there might perhaps be Churches but sometimes they were no better than those which are spoken of by Asser B of Shireburne in the life of K. Alured Churches of so poore and meane a structure that when the Candles were set before the Reliques they were oftentimes blowne out by the wind which got in not only per ostia Ecclesiarum but also per frequente parietum rimulas as the Author there hath said in somuch that the ingenious Prince was put to the practise of his dexteritie and by occasion of this Lanternam ex lignis bo vinis cornobus pulcherime construere imperavit by an apt composure of thâ—â— hornes in wood hee taught us the mysterie of making a Lantherne made the one by Richard the second the other by his successor These exigencies were the causes which mov'd the Bishops to give all encouragement to the Patron and admit him into the honorable imploymnet of Filling the Churches but so as upon occasion given he might resume this right to himselfe which upon the the abuse thereof hath accordingly followed That the Laitie could never yet abide the Clergie is noted in the Law for an old saying De immunit Eccl. C. Clericis lib 6. and Basil the Emperour in the 8. Synod could say of the Lay people of his time Adeo multos malitia in insaniam accendit c. ut quòd pedes sint minimè cogitantes legem ponere velint oculiâ— that malignitie had so set on fire the madnesse of some that forgetting themselves to be the feete they would needs teach their eies to see But we are more happy and need not make this our owne complaint being no otherwise troubled than with a very learned and most religious Laitie But how the Lay Patrons heretofore behaved themselves in the matter in hand we shall see Though I mention only the Lay yet I excuse not the Clergie Patrons otherwise than thus that they were but few and not so likely to wrong the Church in regard of their proper interest The Patrons abused their libertie many waies if we consult with the severall Councels which have provided against this we shall find them sometimes presenting illiterate and unworthy men Priests of the lowest of the people men that can thinke so meanly of the Ministerie as to make suit to come into the Priests office for a piece of bread 1. Sam. 2. This is noted in the Councell at Colen An. 1536. where they are said to present their owne sonnes and kindred citra ullum delectum aut discrimen scientia morum ac atatis There also it is complained that there were some qui admotis nomen tantuÌ„ relinquunt that promoted the Incumbent only to a bare name reserving the revenue to themselves ausuquodam sacrilego as they are there censured by the Councell and some were so exorbitant in this kinde that they would present their yong boyes and children as if by the same law of Nature they could beget Priests and men Concil Palent Const 14. This is litle better then that of Miâ—ha the man of mount Ephraim qui ipse sibi fecâ—â— sacrificuluÌ„ though this might be well endured that the Sonne should make the Priest when the Mother the Founder had made the Gods But this was done too when there was no King in Israel and every man did that which was right in his owne eyes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 otherwise so abominable an act could never have pass'd as the son of Gersom hath observed upon the place The Councell of Salizburgh under Martin the 5. telleth us of certaine Patrons that used to compound with the Incumbent for a Moyerie of the profits and this in the German Councell under Conrade is styled vulnus cancrosum et simontacum And see to this purpose the Councel of Wormes in 886. Vt Presbyters Others not contented with a part of the obventions made the bargain to have halfe for in the second Bracaran Councell C. 6 we finde some that built their Churches non prode v 〈…〉 fides sed pro quastus cupiditate not for devotion but filthy lucre that they might share alike with the Incumbent in the offerings of the Church Sometimes it fell out that the same Church had severall Patrons and these in the vacancie for the most part disagreed about the Presentee and this was a great inconvenience for in the interim during their discord the Bishop was to take away the Reliques and seale up the Church Some Patrons for their Presentations expected to be gratified with gifts and largesses and the like and
the Parochian Ministers of the Parishes vvhere they grew claiming the same by right Or the Temporall Judges vvhose is the Cognisance of the Tytle and Tenure of the ground as also is the setting letting buying selling and other alienating of the same For the point it selfe the Statute maketh no mention but passeth it over with silence and therefore it is to be presumed that it meant that it should there rest where it was before the making of the Statute for the Statute was not made in derogation of the Ecclesiasticall proceedings that were before but in affirmance thereof as the whole drift of the said Statute doth shew And if the Statute had meant otherwise it vvould surely have expressed it either in the proviso it self or after in the derogatory clause where it maketh an enumeration of such things as it intended should be exempted from the tryall of the Ecclesiasticall Law and by vertue of this Statute should not be comprised under the same among which there is no word of this proviso or any other in the same Statute before named Neither is it unto the purpose that the Common Law of this Land taketh knowledge of the Tenure and Title of Lands and such other complements belonging to the same for these things that are here in question are no part of those Legall Essences which the Law requireth to the Tytle and Tenure thereof as is Fee-simple Fee-taile and other of like nature according to the learning of that Law but these are certaine accidents over and beside the Tenure of the Land which may be present or absent without the injurie of the Tytle as God many times turnes flouds into wildernesse and springs of vvater againe into drinesse and a fruitfull Land makes hee barren for the wickednesse of them that dwell therein and yet the Tytle or Tenure of the ground is not changed by these changes of qualities but remaines the selfe same that it was so that these things are no more subject to the ordering of the Common Law than it is in the Common Law to judge and determine what mould is white and what is blacke what ground will beare wheat vvhat barley vvhat oats for these things are no matters of skill of Law that they need to be fetcht out of bookes but they are matters of common experience which every country man can as well skill of as the greatest Lawyer that is and therefore the Law in this case is not desirous of any curious proofe but contenteth it selfe onely vvith the depositions of two or three honest men which speake sensibly and feelingly to the point that is in hand vvhich is enough to direct any wise Judge in his sentence so that it needs not these long circumstances of twelve men to teach the Judge what and how truly the witnesses have deposed For if every qualitie of the ground resteth in the mouth of twelve men onely then should no man be able to say out of the mouth of a witnesse and pronounce thereupon this ground is mountaine this is plaine this is medowe this is arrable unlesse hee were warranted by the verdit of twelve men thereunto which if it be an absurditie to hold then sure it is a like absurditie to say that barren heath waste cannot be pronounced without a Jurie for that these things are like obvious to sense and of like qualitie as the others are And I pray you when they have drawne it unto their tryall what do they in effect otherwise than the Ecclehasticall Judge would or should have done if it had remained still under him for do they give credit simply to the conceit of the Jurie as touching that which hath beene declared and pleaded in the cause before them or do not the Judges themselves rather make a briefe of all that hath beene pleaded in the cause before them and thereof make as it were a verdit and put the same in the mouth of the twelve for their verdit before they goe from the barre So that the whole weight of the cause standeth rather in the Judges direction in such sort as it is at the Ecclesiasticall Law than it doth in the mouth of the Jurie for the Jurie men for the most part are simple people and scarce foure of the twelve understand their evidence so that it may seeme rather to be a matter of superfluitie than of good policie to referre a matter to their verdit vvhen as they say no other thing than what the Judge taught them before Stultum est enimid facere per plura quod fieri potest per pauciora for albeit perhaps some capricious fellow of the Jurie upon the confidence of his owne braine sometimes start aside from that which the Judge hath told him and draw the rest of his fellowes as so many sheepe after him yet for the most part the Judges voice is their direction their loadstone and the North pole to guide them in this businesse Besides in this Proviso as in some other precedent there is a great disadvantage offered to the Clergie which they much complaine of and that is that in cases of this nature they are compelled to suffer triall under them who are in a manner parties unto the suit by reason of the interest they have therein either in present or in consequence so that many now adayes learning too late by other mens harmes what the event in their owne cause will be chuse rather to lose their right than to venture their cause upon such partiall Judges as the twelve men are SECT 5. That the Boughes of great Trees are tytheable and so also are the bodies but in the case of the Statute onely ANd so far as concerning those prohibitions which are forced out of this Statute for naturally they grow not out thereof so that I might now passe over to the other branch of my division that is of such matters as are now held by the Common Lawyers to bee in a certaine measure onely of the Ecclesiasticall proceeding but were anciently wholly of the Ecclesiasticall cognisance but that the name of the Statute De Sylua caedua offering it selfe unto mee in the conclusion of this Statute of Edward the sixth gives mee occasion to speake somthing thereof before I come to the rest This Statute as the words thereof doe shew was made in behalfe of the Laitie against the Clergie for the exemption of great Woods of twenty yeares growth and upward from the payment of Tythes and that in three cases onely where the wood was great when it was xx yeares of age and upward where it was sold to Merchants either to the profit of the owner himselfe or in ayde of the King in his warres so that without these cases it seemeth the Statute intended no further exemption for Statutes are things of strict Law and are no further to bee extended than the words thereof give matter thereunto especially when the thing it selfe naturally was liable to ordinary course of the Law as
legge or hand are no accessaries to the body for that the legge or hand are of the same substance that the bodie is The Child neither while it is in the Mothers wombe L. 1. ff de ventre inspiciendo neither after it is borne is an accessorie to the Mother for while it is in the Mothers wombe it is part of the wombe and after it is severed from her wombe it is a man or woman like principall as her selfe is But that which is an accessory to an other must be of an other nature than the principall is so in naturall living creatures haire hoofes hornes and finnes and such other like excrements are accessories to the creature whose they are for that they are of a farre different nature from the bodies out of which they come and so in other naturall things not living as the Earth it selfe is the Trees Grasse and fruit that spring out of the same are accessories thereto Further in Civile matters expences and executions are accessories to the causes out of which they rise and in Marriages Dowries and Jointures are accounted accessories to them for that without L. dotis ff de jure dotium Marriage neither Joynture nor Dowrie can stand Usurie is said to be an accessorie to the principall not in respect that the proper subject of either of them is Money and so there is one substance or nature of them both but in regard of the dependencie the one hath of the other for hee that will make challenge to Usurie must first prove there is a principall But for the better clearing of these matters of accessorie principall we must know that in bodies whose substance is all one There are some parts like which the Philosophers call partes similares some other unlike being likewise called of them partes dissimilares which in no sort are accessories one to an other but make one continued bodie of both which the Law cals 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Similar parts are such as have one substance forme and figure as the trunke or body of a tree is all one in inward essence and outward shape Dissimilar parts are those which have one inward nature with the other but are divers in outward shew as the boughes and rootes of the Tree are divers betweene themselves and different from the body and yet all agree in one substance and have all the generall name of Wood whereby they are discharged from being accessaries the one to the other and yet they are not under one capacitie or service or one comprehension of Law because they are unlike one to the other and of unlike things there is unlike reason and unlike consequence Now upon these grounds to exempt Timber Trees wholly from the service of him that is Lord aswell of the tall woods as of the low shrubs is very hard for though himselfe dwels not in houses that are made with mans hand nor hath any need of tall Trees to repaire his Tabernacle or prop up his dwelling yet since hee hath left such behinde him as have charge of his flock and feed them in word and worke untill hee come and they dwell in earthly habitations as other men doe and their edifices and buildings have need of repaire in like sort as other mortall mens houses have being all in like manner subject to rottennesse and corruption great reason it had beene to have allowed him some proportion of these great woods towards his servants necessary uses during the time of their service here and if not in the very tenth it selfe yet in the xxx xl or l. part of the same that God thereby might have beene aswell acknowledged to be the Lord of the great Oakes of the Forrest and that by him they have their length breadth and thicknesse as he is accepted and reputed to be Lord of the small brambles and bushes of the field for as now the case standeth God may either seem to have forgot himself that hee hath not made timber trees tytheable as hee hath done other smaller woods especially having such occasion to use them both in the Chancels of Churches that are dedicated to his uses and also in the buildings and repairings of his Ministers houses who supply his roome in their severall Congregations untill hee returne to Judgement or that may well be objected against us in allowing such things for Tythes as us please and disallowing the rest as was by that ancient Father of the Church Tertullian objected against the Senate of Rome who being intreated by the Emperour Tiberius for the strange wonders and miracles he heard to be wrought by our Saviour Jesus Christ that he might bee entertained among the number of their Gods refused so to doe for that they heard that our Saviour was a Jealous God and did in no sort admit the societie and fellowship of other Gods which this grave Father hearing although many yeares after said merrily although wisely That God should be God if Man would let him And thus far of those causes which are held to be absolutely of the Ecclesiasticall cognisance and yet notwithstanding are ecclipsed by interposition of sundry contrary matters CHAP. VII SECT 1. In what cases Diffamatorie words belong to the Ecclesiasticall and what to the Common Law NOw as concerning those things which have beene accounted but in a certain measure of the Ecclesiasticall cognisance yet notwithstanding have anciently in a manner been tried wholly at the Ecclesiasticall Courts such as are matters of Diffamation and matters of Bastardie both which now adayes are much challenged by the Temporall Courts to be of their cognisance But here first of Diffamation then of Bastardie To diffame therefore is as Bartol saith to utter reproachfull Bartol l. turpâ—t ff de legat 3. speeches of another with an intent to raise up an ill fame of him and therefore himselfe expresseth the act it selfe in these words Diffamare est in mala fama ponere Albeit Diffamations properly confist in words yet may they also be done by writing as by Diffamatory Libels also by deeds as by signes gestures of reproach for these no lesse shew the malicious minde of the Diffamer than words do Diffamatory words are uttered either in some scoffing or jesting manner so as facete merry men use to doe to make Linwood c. authoritate verb. quacunque de causa in glosâ—de sent excom the company merry wherein they are or they are spoken by some that have some weakenesse or distemperature in their brain either by drink phrensie or other lightnesse or by any rashnesse in their tongue or they are poured out upon some rancor and malice by some that envy another with intent to diffame him spread abroad a matter of disgrace upon him If they be spoken in a jesting manner to make the company Arist 4. Ethic. cap. antepenult merry if it bee in a fine sort delivered it is by the Greeks called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉
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
he that is charged with the Bastardie were borne in lawfull Matrimonie or out of Matrimonie or whether he were borne before Lib. Intrâ—c fol. 35. his Father and Mother were lawfully contracted together in Matrimony or after All which the Ordinarie makes inquirie upon by his owne Ordinarie and pastorall authoritie for that matters of Bastardy doe originally belong to the Ecclesiasticall Court and not to the Temporall And as hee findes the trueth of the matter by due examination to bee this or that so hee pronounceth for the same in his owne Consistorie and makes certificate thereupon to the Kings Court accordingly and as hee pronounceth so the Temporall Judges follow his sentence in their Judgements either for or against the Inheritance that is in question Speciall Bastardy they say is that where the Matrimony Bracton is confessed but the priority or posterioritie of the Nativity of him whose birth is in question is controversed which to my thinking if I conceive aright is no other thing than the generall bastardie transported in words but agreeing in substance matter with the other for even these things which they pretend make speciall Bastardie are parts and members of the generall Bastardie and are either confessed or inquired upon by vertue of the Kings writ in the same For first for the Matrimonie that is here mentioned it is there agnised both by the Plaintife in pleading of it and the Defendant in the answering thereto and therefore the Plaintifes plea is thus Thou art a Bastard for that thou wast borne before thy parents were lawfully contracted together in Marriage or before their Marriage was solemnized in the face of the Church To which the Defendants reply is I am no Bastard for that I was borne in lawfull Matrimony or that I was borne after that my Father and Mother were lawfully married together In both which you see there is a Marriage confessed and the question onely is of the priority or posteriority of the nativity of him that is charged withall whether it happened before or after his parents marriage which as they hold is the other member of speciall Bastardie and yet this prioritie or posterioritie of nativity by vertue of the Kings writ comes no lesse in inquirie to the Ordinarie in the case of the generall Bastardie than they make it to be traversable in the speciall Bastardie and therefore the writ to the Ordinary for generall Bastardie is conceived in this manner viz. Inqutratis utrum praedictus A. pars rea genitus vel natus Lib. Intrac fol. 35. fuit anto Matrimonium contractum inter talem Patrem suum talem Matrom suam vel post So that either they Glanvill lib. 7. cap. 15. must confesse there is no such bastardie as they make shew there is diverse from that that is tried before the Ecclesiasticall Judge or that themselves doe confound the members that should divide the same and make them one or the other as them list for both simply they cannot be unlesse they be distinguished with other notes and differences than hitherto I finde they are But to say the truth if these things be well weighed and considered speciall Bastardie is nothing else but the definition of the generall and the generall againe is nothing but the definite of the speciall for whosoever is born out of or before lawfull Matrimonie hee is a Bastard and he againe is a Bastard that is borne before or out of lawfull Matrimony so that these things to bee a Bastard and to bee borne out of lawfull Matrimony are convertible one with the other so then as it were very hard to make a divorce betweene these things that are so â—eere in nature one to the other being convertiblâ— termes one to the other so hard againe it were in policie to disjoyne these things in triall that are so neere in affinitie one to the other because they are the same in substance and nature as the other are and therefore Eodem jure conseri debent And also ne continentiae causarum dividantur 〈…〉 q. c. 2. cognorimus which is no lesse absurditie in Law than it is a grossenesse in other learning to deny a principle or generall Maxime of the profession And so farre hitherto as concerning the reasons and arguments that may be brought against this speciall Bastardie Now it resteth that I shew by ancient precedents that both these sorts of Bastardy have appertained to the Ecclesiasticall Courts onely and the first precedent is in the incident the other in the principall and the precedent is no lesse ancient than Henry the seconds time as that which happened under Alexander the third about the yeare of our Lord 1160. and the case is this A certaine man of Norwich Diocesse called R. H. had issue I. H. who had a Son called C. H. I. H. deceasing before R. H. Cap. Lâ—…or ext qui filii sunt legitimi his Father C. H. succeeded in his Grandfathers Inheritance his said Grandfather being dead but M. H. Brother to the said Grandfather pretending that the said I. H. was a Bastard draweth the said C. H. into the Temporall Court upon the Inheritance whereupon C. H. called the said M. H. into the Bishop of Norwich his Court for the triall of his nativity but the Bishop long protracting the cause C. H. appealed to the Pope who delegated the same cause to the Bishop of Excester and the Abbot of Hereford with order That if the said M. H. should not within two Moneths prove that which hee objected against C. H. that then they should intimate the same to the secular Judge before whom the inheritance was in question that he should not stay any longer upon the question of legitimation but proceed to Judgement in the cause of the inheritance Which president though it be long before the Statute of Bastardie made by Henry the 6. and so no writ went from the Temporall Court for the certificate thereof yet it shewes that the Temporall Judges in those dayes did not proceed to Judgement in the principall cause before the incident were decided by the Ordinarie and that they counted bastardy then to be of the Ecclesiasticall cognisance and that it was lawfull for him that was pretended to be a Bastard to appeale from his Ordinarie if either the Ordinarie detracted the determination thereof or were suspected of partiality And thus farre of the incident There is an other much like precedent to this in the same Kings dayes but that is in the principall for that the inheritance came not first in question but the legitimation it selfe and the case is as followeth A certain man called Ralph kept one Analine the wife of one Allin by whom he was supposed to have begot one Cap. Causam ext qui fil 〈…〉 sunt legitimi Agatha who also being married had a Sonne called Richard Ralphe going beyond the Sea left Richard and his Mother Agatha in possession of all his
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 §
wherefore neere the beginning of the same Statute the Statute ordering that all persons of this Realme and other of the Kings Dominions shall truly and effectually set out and pay all and singular Tythes according to the lawfull customes and usages of the Parishes where they grow and become due because there is a question made where these customes and usages shall be tryed in the Ecclesiasticall or Temporall Law if these or the like words had beene added to the same to be proved before an Ecclesiasticall Judge after the forme of the Ecclesiasticall Law and not elsewhere the whole matter had beene cleare for that point And whereas againe in the end of the same Statute there be some good words tending to the appropriating of these matters of Tythes and obligations and other Ecclesiasticall duties to the Ecclesiasticall Court and that the remedie for them shall be had in the Spirituall Court according to the ordinance of the first part of that Act and not otherwise yet because there is no penaltie to that act busie men easilie make a breach thereinto for that Lawes without penalties for the most part are weake of no force if therefore this or the like supply were made if any man sue for these or like duties in any other Court than in the Kings Ecclesiasticall court the parties so suing to forfeit the treble value of that which he sued for to be recovered in the Kings Ecclesiasticall Court where it ought to have bin commenced by the way of Libells or Articles the one halfe thereof shall be to the King the other to the partie grieved many of these suits would easily be met withall Neither is it to the purpose that this is matter of mony and Lay-Fee that should be in this sort forfeited and therefore is not Regularly to be sued for in the Ecclesiasticall Court for seeing the cause is Ecclesiasticall upon which the matter of forfeiture ariseth it may be very well allowed Ne continentiae causarum dividantur and for that ordinarily every jurisdiction that is wronged may defend it selfe with a penaltie beside we do by the like right in the Ecclesiasticall courts recover expenses of suits in Law fees of Advocates Proctors mony for redemption of sin so that it will be no strange matter to have this kinde of suit allowed unto 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 under paine of forfeiture one of treble value for Tythes carried away before they were divided set out or agreed for The other of double value where the Tythes were hurt or impared by the partie stopping or letting him that had interest thereunto to carrie them away or by withdrawing or carrying them away himselfe the same is ordered by a clause in the second branch thereof reaching unto them both for that a clause put in the end of two sentences stretcheth it selfe indifferently unto 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 penalty had no order set down how it might be recovered that the same shall be recovered according to the Kings Ecclesiasticall Law to which if there were added this word only and not elsewhere or otherwise and they martialled in their right places there were nothing more sure or strong Moreover whereas in the first proviso of that Statute it is decreed that none shall be compelled to pay any manner of Tythes for any Hereditaments which by the Lawes or Statutes of the Realme or by any Priviledge Prescription or Composition Reall are not chargeable therewithall whereby it is doubtfull in what Court the said Exemptions are to be alledged if there were inserted these words or other of like nature the said Lawes Statutes Priviledges Prescriptions or Compositions reall to be alledged argued traversed and determined before the Ecclesiasticall Judge onely according to the forme of the Ecclesiasticall Lawes and not else-where upon like forfeiture of treble dammages as is aforesaid it would make this poynt sure unto the Ecclesiasticall Law Over and besides this whereas in the same Statute there is a discharge allowed to barren heath and waste ground in some for not payment of tythes in other for the manner of payment of them for the space of 7. yeares after the improving and converting of them into arrable ground or meadow it would make the matter plaine which Law should have the pronouncing thereupon if there were added these or the like words So the same ground be proved in forme of Law in the Ecclesiasticall Court to be barren heath and waste Lastly whereas in the said Statute among other limitations of causes wherein the Ecclesiasticall Judge is not to deale by vertue of the said Statute there is one in these words neere the end of the said Statute Ne in any matter whereof the Kings Court of right ought to have Jurisdiction which limitation is so vage large that thereout there may be forged as many divers kindes of Prohibitions as the Poets sained Vulcan ever made thunderbolts for Jupiter And therefore it were very well and consonant to the good meaning of the said Statute that this vagenesse were restrained and reduced to a more certainty of matter by these or like words By any ancient Law or Statute of this Land And so farre as concerning the imperfection of the said three Statutes and how they may be amended and made reducible to the first meaning and intent of the makers thereof by some small supply alteration or change of words the sense and ground-worke standing ever the same according to the wisdome of his Majestic and his great Councell assembled in Parliament CHAP. II. SECT 1. The second Meane to releeve the Civile Law which is by allowing it the practice of such things as are greevances in the Common-wealth and fit to be reformed by some Court but yet are not otherwise provided for And first of the greevances which concerne Parents and Children and how they may be releeved NOw it followeth that I shew wherein the practice of the Ecclesiasticall Law under which I comprise the Civile Law so farre as it is in use amongstus may bee increased to the benefite of the subject and the enlargement of the profession without the prejudice of the Common Law And that I may first begin with the piety of Fathers towards their Children children againe towards their Parents which is the beginning of all Common-wealths for even Nature it selfe hath taught that not onely in the most brutish people that bee but also setled it in the savagest kinde of beasts that are upon the earth the one to cherish that which it selfe hath brought out and the other to love againe that which hath brought it out and yet what Law is here in England which provideth for the one or the other unlesse
the Prince and Common wealth had no interest in such a subject to see hee did not waste his state and abuse his goods whereby many great houses are overthrowne and many children whom the Fathers carefully provided for never leaving raking and scraping all their life time that their children after them might live in great plentie and abundance come to great shame and beggerie But the Civile Law hath remedie for it for the Law counting such a man that is in this sort ff de curatorib furioso aliis â—â—tra minores dandis impotent in his deeds howsoever he be otherwise sensible in his words to be halfe mad and to be a young man in his manners how old soever otherwise he be in his yeares sets a Curator over them for the preserving and well ordering of their state no otherwise than if they were children or mad men indeed who so long have power over them and their goods untill they come to sane manners to which if they once returne the Curators office ceaseth The like they do to a widow or sole woman which liveth riotously having neither regard of her fame nor of her state L. et mulieri ff eod I finde an old practice auciently used in the Ecclesiasticall Courts for restraining Executors or Administrators for dealing covenously in an Executorship or Administratorship when there are more Executors named in a Will than one or more Administrators deputed by the Ordinary in an Administration than one which were well if it were recalled and brought backe to his former use againe For now as things stand many times one capricious fellow named an Executor in a Will or appointed Administrator by the Ordinary with some other well-meaning men getting a start in this businesse of the rest ingrosseth all into his owne hands and without privitie or concurrence of the other selleth releaseth and disposeth all at his owne pleasure contrary to the minde either of the Testator or the Ordinary who would not have named so many in the Will or Administration but to the intent that all might or should execute and administer and one communicate their acts with another The contrarie whereof is many times very prejudiciall and hurtfull to those that are to take benefit by the said Will or Administration who for the vvant of the due performance of this kinde of proceeding are defrauded of all that which in right or reason should have come unto them either by the Testators good-will or by the benefit of the Law And yet there is no remedie for this in Law so farre as I know for that all these making but one person in Law the Law yeelds no action to the one to sue the other but yet the ancient practise of the Ecclesiasticall Law hath remedie which would redresse all this mischiefe if it were called again to use might goe without controlmeÌ„t as the equity of the cause doth require And the remedie is this that such other of the Executors or Administrators as are in this sort interverted from the execution of the Will or Administration by the subtiltie of any like Executor or Administrator should crave the assistance of the Judge and will him by vertue of his office to call in such practique Executor or Administrator and to command him under paine of excommunication hee proceed no further in the sole execution thereof but communicate all his acts and dealings with the rest of his Coexecutors or Coadministrators which if it were so ordered would make many mens Wills and Administrations better performed than they are and a great sort of poore Orphans states more sure and certaine than commonly they are in such Executors or Administrators hands And certainly in this case there is some good use of Supervisors in dead mens Wils whom many men meerly jestar calling them candle-holders as though they could do nothing else in the execution therof but hold the candle while the Executors tell the Defuncts mony if they might be permitted to put in practise that authoritie which the Law giveth them and that is when they finde any Executor deale fraudulently in the execution of any Testators Will wherein they are named supervisors or do ingrosse all the state of the Defunct into his hands as hath beene before said they call him to a particular account that it may be seene how the administration stands and each Executor may commumunicate to other particular receipts and disbursements which if any shall refuse to do then may the Supervisor make thereof complaint unto the Judge as though the same man dealt not truly in the execution thereof who though perhaps in the beginning could not take bond of him for ff De administratione tutorum l. 3. §. 1. the true execution of the Will because the Testator had made choice of him and therein approved his faith and that no man required caution of him for any Legacie in the Will be queathed in which case the Judge might take bond of him for securitie of such Lagacies as are bequeathed in the Will yea though his faith hath beene approved by the Ordinarie as hath beene before remembred yet may the Judge in this case if hee finde him justly suspected of fraud and deceit remove him by the learning of that Law For Instit de suspectis tutorib vel curator teto tit neither the Testator himselfe if hee were alive againe would indure him in this case but would blot his name out of his Will neither ought the Judge to suffer him whose care is to see that dead mens Wills take their effect according to the Testators meaning All which the Law hath provision for and for infinite things else of like good order in these cases if they might be suffered to put them in execution without impeachment And so farre as concerning those things wherein the Civile and the Ecclesiasticall Law might be relieved without prejudice to the Common Law for because they have no practise thereof and yet do not I bring forth these as the onely causes wherein the Civile and Ecclesiasticall Law may be licenced to deale in over and besides the practise of those things that they have already but that these are few among many other which might be sorted out if so be there were any hope for the further enlargement of the profession CHAP. III. Of the necessitie of retaining the practise of the Civile and Ecclesiasticall Law in this Land BUt now to the necessitie of the maintenance of the Civile and Ecclesiasticall Law in this Realme as they are now practised or ought to be practised which was a thing first propounded but last put in execution in this worke Albeit that which hath beene already said as concerning the Civile and Ecclesiasticall Law may well imply the necessarie preservation of them both within this Land yet because it was a thing I promised to shew in the beginning of this Treatise after that I had gone over the rest of the parts of my
of Tythes 181. 182 Judgement civile criminall mixt 6. publick 22. ecclesiastick 79 80 Juglers how to be punished 21 Ivo Bishop of Carnat Compiler of the Decrees 74 Jurisdiction Ecclesiasticall wherein impeached 121. 122. 146. not to be confounded with the temporall 133. 149. 158 Jury of twelve men not requisite to determine which is barren ground 227 228. say nothing but what the Judge dictates ib. mostly partiall because possible parties 229 Jus patronatus what 196 Justices of the peace their office 41 59 Justinian why he compiled the Code 31 K Kingdomes indivisible 113 Kings their Titles given by the Law 103. their supremacie 104. Fountaines from whence is derived Ecclesiasticall jurisdiction as well as Civile 123. with whom resideth the prime power to interpret Statutes 257 258 Knights of how many kindes 105. whether they or Doctors to have precedencie 106 Knutes Lawes 140 L Lands of the Church in what cases they may be aliened let or sold 63. vid. Church what Lands may be given by Will 137 Land-markes not to be removed 21 22 Lanternes upon what occasion invented 197 Lapses upon what occasion induced 199 Lateran Councell when holden and with what successe 171 172 Law what 2. publick private of Nature of Nations ib. the object of the Law 4 5. the multitude inconvenient 32. how to be interpreted 256. without penalties of small force 259. Canon Law what 73. excused ib. how in use with us 114 115. c. Civile Law what 3. most equitable ib. Division of it 4 5. seq how farre in use in this Land 88. seq like a sword in a scabberd 97. the necessitie thereof 272. For Marine controversies ibid. commerce of Princes 273. punishment of spirituall disobedience ibid. Recoverie of Ministers right ibid. Wils Weddings Burials 274. Cases in Chauncerie 275. in the Court of Requests 276. severally impeached by the Common Law 122. in marine matters 228. in Wils 134 135. in Tythes 146. in cases of waste ground 223. of Diffamation 237. of Bastardie 243. how it may be releeved 255. Common Law wherin defective 262 264. how it may bee supplyed ib. The word Law not still taken for the Common Law 158. Law Ecclesiasticall 159. animated by the King 160. not to bee confounded with the temporall ib. of what antiquitie ibid. wherein abbridged 121. how to be releeved 255. seq Saxon Lawes 138 139 140. Salick Law refuted 109. Law of Laps 199 Lawyers why no fees assigned to them 30. Temporall and Ecclesiasticall 159 Lay-men may not celebrate divine Service 66. nor hold Impropriations 214. when they began to hold Tythes in fee 162 163. their ill will to the Clergie 198 Lay-patrons vid. Patron Leases for how long to be let 45. 63 Legacies when due 11. how taken away 12. when to be paid 51. for pious uses 67. unjustly deteined under pretence of debts unknowne 264. what remedie for that abuse 265. vid. Testaments Legataries how defrauded and how they may bee releeved 266 Legates why so called 28. 40. their priviledges ibid. usually Civilians 96 Legitimation of children 58. how made amongst the Romans 246. how with us ibid. Leige-men 72 Lent things if denied how recoverable 7 Letters dimissorie 26 Libell what 19. the Authours and Concealers how punished ibid. Liberall Sciences 29 Like Reason like Law 156 157 Litigious cases what 62 Lombards the first Authors of Feuds 71 Lucius first Christian King of England 142 Lycurgus his uprightnesse 112 M Mad persons how provided for by the Law 11 Magdeburgenses vindicated from mis-allegation 169 Magistrates office 28 29 Mahomet alloweth Tythes 175 Maiors election and office 53 Maintenance of parents and children how it might be provided for 263 264. seq Manner of Tything how to be expounded 180 Manzeres what 244 March grounds 44 Marianus Scotus imperfect 171 Marine affaires 88 89 Marriners priviledges 42 Marriage what 9. 55. within what degrees forbidden 53. why to Priests 253. within the yeare of mourning punishable 55. in the husbands absence 62. impediments of marriage 83. second marriage prejudiciall to the children of the first 263 264. 268 Charles Martel the first in the Christian world that violated the right of Tythes 164. his fact related at large ib. 165. how censured by historians ib. why denied by some omitted by some 166. related by others 167. those French-men 168. 170. whence they had the storie ib. his fact imitated in other Nations 169 170. the vision concerning him 165. whether creditable 170 171 Martiall causes of Ecclesiasticall cognisance 98 Master of the Souldiers 45. of Requests 53. of the Ship 89 Mercie triumphoth over judgement 275 Mere-balkes not to be removed 21 22 Mettals tytheable 217. arguments to the contrary answered 219 220. how they are generated 218. they may renew but seldome doe ib. Micha's Disciples 198 Militarie discipline 48 Minerals vid. Mettall Ministers at what age to bee ordained 65. vid. Clerkes Minors estates how to be disposed of 59 Miracles not so frequent now as formerly 171 Monasteries not to be builded without the licence of the Bishop 51. their priviledges 184. and the bad use of them 185. the restraint thereupon ibid. Monetaries immunitie from service 43 Money why used 224 Monkes life and conversation 51. 184. originall of cloystered Monkes 187 Mother-Church 176 177 Mother-Village 44 Mort-maine the originall of it 183. in severall Nations 185. whence the name ib. now not necessarie ib. Myners immunitie 42 N Names not to be altered 100 Naturales filii who 244 Navigation beneficiall to the Common-wealth 271. requireth the practice of the Civile Law ib. Necessitie of the Civile Law in this Land 271 New-years gifts of ancient use 38 Nicene Canons urged 153 154. hardly escaped the fire of the Arrians ib. their authoritie questioned ib. what exemplary life they require of Monkes 184 Notaries place 46 Nothi who 244. Nothae febres ib. Natalia what 226 Novelles what 50 Nundinae why so called 29 O Oathes of severall kindes 7. of the deceased when good 56. Of women tumblers of no account ibid Obligations how they may bee excepted against 7. how many sorts of them 17 18. by words how released ib. Offences publick and private 18 Officers how to be chosen 41 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 what 191 Oratories in private houses 57 Ordeall fire and water 86 Order of succession 63. who may not take orders 77 Orders of Monkes tythe-free 200 Ordination of Ministers 76 Orphanes estates ill provided for by the Common Law 264 265. but may finde releefe at the Civile 266 P Pagans why so called 215 Pandects what 4. the division thereof 5. seq Parents affection to one childe how moderated 61. greevances how to be releeved 263 Parishes their bounds of Ecclesiasticall cognisance 151. the originall of them 152. 174. the severall acceptions of the word 153 Parliament of whom it consisteth 159. hath sole power to reforme the Statutes 256 Parricides how punished 23 Parts no accessories 233. similar and dissimilar ib. Pope Paschal his