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
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
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
goods and lands but newes being after brought that the said Ralphe was dead beyond the Sea Francis the Brother of the said Ralphe spoyled the said Richard of the possession of all the goods and lands he had of the said Ralphe his Grandfather for that he did pretend the said Agatha his Niece and Mother of the said Richard was not borne of lawfull Matrimonie so that neitheir shee her selfe nor her sonne ought to succeed the Brother of the said Francis but that the inheritance thereof did belong unto himselfe whereupon the said Richard being thus spoyled by Francis his great uncle obtained Letters of restitution to the Bishop of London the B. of Worcester and the B. of Excester under this forme That before they entred into the principall cause which was this Whether the said Agatha were borne in lawfull Matrimonie or not they should restore the said Richard to his Grandfathers inheritance But the Bishop of Rome after understanding by the said Delegates that the plea of inheritance within this Realme did not belong unto the Church but unto the King recall'd that part of his rescript which concerned the restitution of the said Richard to his inheritance and gave order to the foresaid Bishops to proceed in the cause of legitimation willing them to inquire whether the said Agatha were borne of the said Aneline in the life time of her husband Allin when she dwelt and cohabited with him as with her husband or whether the said Ralphe Father of the said Agatha kept the said Aneline openly and publickly while the said Allin yet lived And if they found it to be so then they should pronounce her the said Agatha to bee a Bastard for that Anelina her Mother could not bee counted to bee a wife but a whore which defiling her husbands bed presumed to keepe company with an other her husband yet being alive But if they found it otherwise then they should pronounce her the said Agatha to be legitimate All which was done after the death of the said Ralph and Aneline as the Decretall it selfe shewes Neither was there any authoritie that opposed it selfe against that proceeding but held it to be good and lawfull though it were in terme of speciall Bastardie for then that which they now call speciall Bastardie was not borne Besides hereby it appeareth that the Ordinaries then did not onely proceed in cases of Bastardie incidently that is when a suit was before begun in the Common Law upon a triall of inheritance and that by writ from the Temporall Courts but even originally and that to prepare way unto inheritance or any other good that was like to accrue unto a man by succession or to avoid any inconvenience that might keepe him from promotion as may appeare by this practise following Priests in the beginning of the Raigne of Henry the 3. Constitut Otho innotuit de uxoratis à benefic 〈…〉 amovendis yet married secretly and their children were counted capable of all inheritance and other benefits that might grow unto them by lawfull marriage so that they were able to prove that their parents were lawfully married together by witnesses or instruments which many children did either upon hope of some preferment that by succession or otherwise was like to come unto them or to avoid some inconvenience that otherwise might light upon them for the want of that proofe some their parents yet living others their parents being dead and the proceedings before the Ordinary was holden good to all intents and purposes even in the Common Law for otherwise they would not have so frequented it for as yet there was made no positive Law against marriages of Priests and Ministers but the Church of Rome then plotting against it for that by that they pretended the cure of Soules was neglected and the substanc of the Church wasted and dissipated did by Otho then Legate à Latere to Gregory the ninth order by a Constitution that all such Ministers as vvere married should be expelled from their Benefices and their Wives and Children should be excluded from all such livelihood as the Fathers had got during the time of the Marriage either by themselves or by any middle person and that the same should become due unto the Church wherein they did reside and that their children frō that time forth should be disabled to injoy holy orders unlesse they were otherwise favourably dispensed withall which Constitution although it wrought to that effect to barre Priests for that time of their Marriage untill the light of the Gospell burst out and shewed that that doctrine was erronious yet to all other effects the proceeding in the case of Bastardie stood good as a thing due to be done by holy Church And therefore Linwod comming long after in his Catalogue that hee maketh of Ecclesiasticall causes reciteth Legitimation for one among the rest for that in those daies there was no dispute or practise to the contrarie And thus farre as concerning those things wherein the Ecclesiasticall Laws are hindered by the Temporall in their proceedings contrary to Law Statute and custome anciently observed which was the third part of my generall division Now it followeth that I shew wherein the Ecclesiasticall Law may be relieved and so both the Lawes know their owne bounds and not one to over-beare the other as they doe at this day to the great vexation of the subject and the intolerable confusion of them both which is the last part of this Treatise PART IV. CHAP. I. SECT 1. The meanes how to relieve the Civill Law that they are of two sorts that two things are required to the first meane and that the former of these is the right interpretation of Lawes and what that is THe meanes therefore to relieve the profession of the Civile Law are two The first is by the restoring of those things which have beene powerfully by the Common-Law taken from them and the bringing of them backe againe unto their old and wonted course The other is by allowing them the practise of such things as are grievances in the Common-wealth and fit to be reformed by some Court but yet are by no home-Law provided for The first of these stands in two things whereof the one is the right interpretation of the Lawes Statutes and customes which are written and devised in the behalfe of the Ecclesiasticall Law The other consisteth in the correcting and supplying of such Lawes and Statutes that are either superfluous or defective in the penning made in the behalfe as it is pretended of the Ecclesiasticall profession but yet by reason of the unperfect pe 〈…〉 g thereof are construed for the most part against them The right interpretation of the Law Statutes and Customes pertaining to the practise standeth as is pretended in the Judges mouth who notwithstanding hath that authoritie from the Soveraigne and that not to judge according as him best liketh but according as the right of the cause doth require The supply or
reforming of that which is over-plus or defective is in the Parliament so notwithstanding as that the Prince evermore breatheth life into that which is done Lawes Statutes or Customes are then best interpreted when as the very plaine and naturall sense of them is sought after and no forraine or strained exposition is mixt with them for that turneth justice into worme-wood and judgement into gall then that the Judge be not too subtill in his interpretation but follow such exposition of the Lawes as men of former age have used to make if they be not plainly absurd and erronious for oft shifting of interpretations breedeth great variance in mens states among such as have busie heads and much discrediteth the Law it selfe as though there were no certaintie in it with which although the fage Judges of our time cannot be charged for ought that I know yet I cannot tell how men much complaine that Lawes are farre otherwise construed in these daies than they were in former ages which as it is an ordinarie complaint in the Temporall Courts so it is not without cause much lamented at the Spirituall Court where the interpretation upon the three Statutes of Tythes made by King Henry the eight and Edward his sonne among other inconstancies of other Lawes hath such great varietie of sense and understanding in sundrie points thereof as that if the makers thereof were now alive and the first expositors thereof sate in place of Judgement againe the Statutes being measured by the interpretation they now make of them vvould hardly acknowledge them either to be the Statutes that they then made or the other did after expound and declare for every of these Statutes and the sense that was given of them vvas wholy for the benefit of the Church according to the tenor thereof but as they now receive explication they are not onely not beneficiall unto the Church but the greatest hinderance to the same that may be for the words are made to jarre with the sense and the sense vvith the vvords neither is there kept any right analogie in them and therefore the Reverend Judges are to be intreated because they challenge unto themselves the opening of the Statutes alone albeit peradventure that be yet subjudice where the Statute of Ecclesiasticall causes is to be interpreted that they would recall such exorbitant interpretations as have of late gone abroad upon these Statutes and restore them to their ancient sense and understanding No man can so cunningly cloake an interpretation but another will be as cunning as hee to spie it out and then the discredit will be the Lawes Lib. 1. Politâ—â— A small errour saith Aristotle in the beginning is a great one in the end and hee that goeth out of the way a little the longer he goeth on the further he is off from the place his voyage was to and therefore the speedier returne into the way againe is best The old Proverbe is He that goeth plainly goeth surely which may be best verified in the exposition of the Law if any where else for commonly men offend no where more dangerously than under the authoritie of the Law and therefore one saith very well that There are two salts required in a Judge the one of knowledge whereby hee may have skill to Judge uprightly the other of conscience whereby hee may be willing to judge according to that as his skill leadeth him unto both which being in the grave Judges it is not to be doubted but they will be easily induced to review their owne and their predecessours interpretations and reduce such exorbitant expositions as have scaped out thereof unto the right and naturall sense thereof which if perhaps they shall be loath to do for because it makes for them or for some other like partiall respect then humble supplication is to be made unto his Majestie that hee himselfe will be pleased to give the right sense of those things which are in controversie betweene both the Jurisdictions for his Majestie by communicating his authoritie to his Judge to expound his Lawes doth not thereby abdicate the same from himselfe but that hee may assume it againe unto him when and as often as hee pleaseth Whose interpretation in that is to be preferred before theirs first for that his interpretation is impartiall as hee that will not weaken his left side to make strong his right for so are these jurisdictions as they are referred unto his politique bodie but will afford them equall grace L. 1. num 8. C. de legibus L. 1. num 7. C. codâ— omnes populi ff de justit jure and favour that hee may have like use of them both either in forraigne or domesticall businesse as occasion shall serve then that his Judges interpretation maketh right onely to them betweene whom the cause is but his highnesse exposition is a Law unto all from which it is not lawfull for any subject to recede neither is it reverseable by any but by himselfe upon a second cogitation or him that hath like authoritie as himselfe hath and therefore most fit to be interposed betweene Jurisdiction and Jurisdiction that the one partie be not Judge against the other in his owne cause which is both absurd and dangerous And let this suffice for the right interpretation of Lawes and Statutes Now it followeth that I speake something of the supplies that may be made to the defects that are in the same SECT 2. The second thing required to the first correcting of superstition and supplying of defective Statutes IT is not to be doubted but it was the full minde and intent of the Lawmakers which made those three Statutes to infeoffe the Ecclesiasticall Courts in the inheritance of all those causes that are comprised in those Statutes save those that are by speciall name exempted and that they did by the said Statute as it were deliver unto them full and quiet possession of the same for even so sundrie branches of the said Statute do shew as I have elsewhere made it manifest and that there hath growne question upon many points thereof and that the professours of the Ecclesiasticall Law have beene interupted in the quiet possession thereof commeth of the unperfect penning of the same and not of any just title or claime that may be made by the professours of the other Law thereunto but this is a thing not onely proper to these three Statutes but also common to all other Statutes which are writ of any Ecclesiasticall causes within this Land which notwithstanding may be remedied if it seeme good unto his sacred Majestie and the rest of the wisedome of the land assembled together at any time for the making of wholsome Lawes and the reforming of the same by supply of a few words in some places or periods that are defective and yet keeping the true meaning and sense of the same As for example in the Statute of the two and thirtieth of Henry the eight in the §
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
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
they are referred to the punishment of the Judge who is to punish them according to the quality of the fact age and understanding of the offender and other circumstances according as he shall thinke good so notwithstanding that he exceed not a convenient measure therein neither stretch the same to death but upon some great and weighty cause he is to be content with meaner punishment as temporall banishment whipping or some moderat pecuniary mulct For violating or defacing another mans sepulchre Imfamy was imposed besides a pecuniary mulct to be divided betweene the Prince and the party grieved but if any dig up the corse of the deceased the punishment is death If any by feare of his office or authority wring any money from any man or exact more fees in any matter than he ought to doe or cause him to marry or doe any other thing he would not doe the forfeiture is foure double the value of that which hath been taken beside further punishment at the discretion of the Judge Such as drive mens cattell out of their ground or sever them from the flock or herd with intent to steale them if they doe it with a weapon like unto a Robber are condemned to be throwne to wild beasts otherwise are more lightly punished according to the discretion of the Judge Such as in Judgement take money on both sides or taking upon them the defence of one side betray the cause and take money on the other side are infamous by law and are punished at the discretion of the Judge Such as receive theeves and other like malefactors are punished in like sort as the theeves or malefactors themselves are especially if they have assisted them in their wickednesse otherwise if they onely knew it received them they are more mildly to be punished especially if the offenders were their kinsmen for their offence is not like theirs which entertain those which are no kin to them at all when as it is naturall for every one to regard his owne blood and fathers are many times more carefull for their children than for themselves but if that hee that received them knew nothing of the offence then is he altogether to be excused Such as break prison are to be punished by death because it is a certain treason to break the Princes ward but if they scape by the negligence of the Keepers against whom the presumption lyeth ever in this case they are more lightly to be punished If any commit Burglarie breaking up a doore or wall with intent to doe a Robbery if they be base companions they are to be condemned to the Mynes or Gallies but if they be of better reckoning they are to be put from the ranke or order wherein they are or to be banished for a season Juglers and like Impostors which goe about deceiving of the people with false tricks and toyes hookes and such like which insinuate themselves into other mens houses with purpose to steale are punished at the discretion of the Judge If any steale or take away any thing out of the inheritance of another man before either the Will be proved or administration be taken an action of theft lyeth not because the inheritance during the time was counted no bodies but he is to be punished by the discretion of the Judge yea though it were the heire himselfe that did it Cosenage whereby a man craftily suppresseth some thing he should not or putteth one thing in anothers place to the deceit of him that hee dealeth withall or corrupteth such wares which hee uttereth or doth any other thing collusorily which is called of the Law Crimen Stellionatus of a little vermin or creature called Stellio much like to a Lisard most Crimen Stellionatus envious to man is censured by some ignominious shamful punishment or by disgracing the person by putting him out of the Office Place or Order he is in or by injoyning him some servile worke or by banishing him for a time or by some like punishment at the discretion of the Judge If any plough up a Mere balke or remove any other marke which hath accustomed to be a Marke or bound betweene ground and grounds which anciently was counted reverend and religious among men the offence is punished either by a pecuniarie mulct or by banishment or whipping at the discretion of the Judge Unlawfull Colledges Corporations and assemblies gathered together to bad uses as to eating drinking wantonnesse heresie conspiracie are punished as publick Routs or Riots otherwise at the discretion of the Judge All these before recited are called Popular Actions because not onely he that is injured but every other honest subject may pursue and prosecute the same Publick Judgements are such which immediatly pertain Publick Judgements to the punishment of the common-wealth for example sake and are examined tried and punished by a publick order appointed by Law the partie grieved making himselfe partie to the suite and following the same the party accused in the meane while remaining in prison or putting in suerties for his appearance and the partie grieved for the prosecuting of the same The chiefest of which sort is Treason which is a diminishing or derogation of the Majestie of the people or Prince on whom the people have collated all their power which is punished with death and confiscation of the Lands and goods of the offender and the eternall abolishment of his memorie The next is Adultery which is violating of an other mans bed whose punishment anciently was death both in the man and in the woman but after it was mitigated in the woman shee being first whipt and then shut up in a Monasterie but by the Canons other paines are inflicted Under Adulterie are contained Incest Sodomy Baudery and all the rest of the sins of that kinde Publick force is that which is done by a company of armed men collected together and the correction thereof is perpetuall banishment Private which is done without Arms the paine thereof is the losse of halfe the parties goods and the infamie of his name Murtherers and Poysoners Witches and Sorcerers the crime being proved dye the death such as set mens houses a fire are to be consumed with fire themselves such as kill either Father or Mother or those that are in the place of Father or Mother or any that are of next a kin their punishment is death and in case of the Father and Mother beside the pain of death the Parricide being first well whipt so that the blood doe follow in good plenty hee being sowed up into a sack together with a Dogge a Cock and an Ape is thrown into the depth of the Sea Such as make false Certificates forge false Wils Depose false wittingly suborne witnesses take money either to say or not to say their knowledge of that which they are demanded of in Judgement corrupt Judgement or cause it to be corrupted interline put in or raze out any thing out of any
the time to present the same to the Judge is at the discretion of the Judge from whom the time of prosecuting the same is a year or upon just cause two years in which time if the sute be not ended the cause is deserted and to be sent back unto the Judge from whom the Appeale was first made while the Appeale hangeth nothing is to bee innovated because by the Appeale the Judges hands are as it were bound but if the former Sentence were voyde by law as in sundry cases they are then there needeth no Appeale for such Sentences never passe into a case judged Appeales in criminall cases cannot be justified by a Proctor but it is otherwise in Civile Causes An Appeale in one cause doth not exempt the party appellant from his owne Judge in other causes If the appellant die during the time of the Appeale and leave no heire behinde him the Appeale ceaseth but if he leave an heire behinde him and the matter of the Appeale concernes none but himselfe he is not to be compelled to follow it for every one may renounce his owne sute but if it concerne the Exchequer or any other body then may hee be compelled to follow it The Exchequer is the Princes Treasurie and the patrimony of the common-wealth and hath many and singular prerogatives which private men have not Such as are taken captive by the enemy become their servants who have taken them unlesse either they escape home again themselves or be ransomed by their friends in both which cases they recover all right and priviledges they had in their owne common-wealth before By the Law all Subjects whatsoever are bound to serve the common-wealth in warre in so much that if any being prest withdraw himselfe or his childe from it he is to be counted as a rebell and for his punishment is to be banished and mulcted or fined in the greatest part of his goods As the priviledges and rewards of Souldiers were many to encourage them to vertue and manhood so their shames and punishments were great to feare them from cowardice and vice But among the rest of the priviledges of Souldiers the old Souldiers were the greatest Of Subjects some dwelt in Shires and lived after their owne Lawes and yet neverthelesse were made partakers of the honours of the Citie some other were inhabitants onely in the common-wealth and had onely a house in the same place to dwell in and had no right to bear office some other were strangers brought in which were ruled by the Law of them among whom they dwelt Amongst those that dwelt in Shires the chiefest Magistrate was he whom they called Decurio who was not sent by the people of Rome thither for he was a Magistrate of Magistrates but elected by the people there and his office was to keepe the treasurie of the Countrey to provide victuall exact tribute govern the state there in maner as our Sherifes doe here His office was onely annuall lest by liberty and lust of government and continuance thereof it might grow into a tyrannie Such as are Subjects are to serve the common-wealth in such offices places and services as their abilitie is fit for and the necessitie of the common-wealth requires The services of the common-wealth were of three sorts Patrimoniall such as belong to every mans patrimony to performe which stood chiefly upon payment and charges which were to goe out of every mans inheritance towards the performance of such burthen as lay upon him by law custome or command of him that had power thereto Personall which were to be performed by the care and industrie of the partie and his corporall labour without expence of his purse Mixt which required both care of the minde and labour of the body and expence of the purse and are imposed as well in consideration of the thing as the person which every subject is to undergoe unlesse by the Law or by the indulgence of the Prince they are excused as some are excused by reason of old age some by young age some for their dignity some for their calling some for their state of body some for that they serve in the necessarie services of the common-wealth at home or abroad as Embassadours do some for that they are in necessary places of services for Gods Religion as cathedrall Churches and other Churches are some for that they are of good and necessary places for Seminaries for the common-wealth for learning and such othe imployments as Colledges Societies and Schooles of learning and nurture are Legates and Embassadours had immunitie from all publick servivices not onely the time of their embassage but also two years after their returne They were called Legates in that they were chosen as fit men out of many their person was sacred both at home and abroad so that no man might lay violent hands on them without breach of the Law of Nations Such as are Magistrates of Cities ought so to governe that no negligence may bee justly imputed unto them otherwise they are to answer it and that when their office is expired they give up a just account both of what they have received and what they have layd out and pay in the residue if there bee any Governours of Cities together with the consent of the Burgesses thereof may set downe such orders and decrees as are for the benefit and well ordering thereof which are to be observed of all those which are Inhabitants thereof and being once well and duely set downe are not to be reversed but to the good of the Citie or Commonalty New publick workes such as are good for the Common-weale every one may make without the leave of the Prince unlesse it be done for aemulation or cause of discord but for old works in which stands the security of the Common-wealth as Castles Towers Gates and Wals of Cities nothing is to be done or innovated in them without the Princes warrant neither is it lawfull for any man to grave his name in any publick Worke unlesse it be his at whose cost the worke is done Faires are authorized by Princes onely and are invented for trade of merchandize and uttering of wares which Country-men have cause to buy or sell and have their priviledges that no man in any Faire can be arrested for any private debt they were called Nundinae because that among the Romans they were anciently holden in one place or other upon every ninth day Hee that for ten years space intermitteth to use his Faire loseth the priviledge thereof If any make any promise to a Citie or Common-wealth to do any thing upon certain cause as that hee might be made Consul or that he would repair some part of the Citie that was burnt he shall by the Law be compelled to performe his promise for it is not meet that such promises should be satisfied with repentance Such as professe liberall Sciences in any Common-wealth whereby youth is instructed brought up to knowledge or be
carrieth it away and how the same may be revoked unlesse all rights and ceremonies be solemnly performed therein How things that are in Common betweene the Ecchequer and private men may be sold and that the Exchequer evict nothing that it hath once sold for that it were a thing against the dignity of the Exchequer and would terrifie private men for bargaining with it Of those that have borrowed money out of the publick receipts and what penalty they incurre if they repay it not at their dayes covenanted somtimes the forfeiture of foure double of that they have borrowed somtimes danger of life it selfe That in cases of penalties the Exchequer be not preferred before such as the Offender was truely indebted unto but that they be first served and then the Exchequer have onely that which is left What usurie the Exchequer may take that is for money lent and not for such summes as grow out of Mulcts and Penalties That such sentences that are given against the Exchequer may be retracted within three years following although ordinarily all other Sentences are irrevocable after ten dayes neither can be reformed after that time either by rescript of the Prince or by pretence of new proofe Of the goods of such as excheat by reason they have made no Will and of the goods of Incorporations that is of such as dye without heires that they come not to the common banke of the citie but that they excheat unto the Prince Of Promoters by whose informations any goods are confiscate either by reason of the goods themselves for that they are adulterine or that they are prohibited to be exported or imported or upon some other like cause or by reason of the persons that have offended and crimes wherein they have offended and their punishment if they give in any wrong information or other than such as they are bound unto by vertue of their Office and that they give no information in but by advise of the Attourney of the Exchequer and that they make no information against their Lord and Master but in case of Treason That it shall be lawfull for no man to make sute unto the Prince for those things that are confiscated unto the Exchequer as though it were more Honourable for the Prince to bestow such things on his Courtiers than to keepe them to himselfe and therefore such as are the Princes Secretaries his Masters of Requests and others that are of his remembrance are forbidden to make any Acts Instruments or other writings hereof unlesse the Prince of his owne motion and at no other mans sute will or command the same Of such as put themselves into the Exchequer upon any confession made against themselves Of such to whom the Prince joyntly hath given any farme or like thing that where one of them dyeth without an heire the other may succeed him Of Treasure found that the Exchequer be made acquainted with it and that if it be found in a publick place halfe goeth to the Exchequer the other to the finder but if it be in a private place then halfe to the Lord of the soyle and the other to the finder Of provision for Corne and such other like Of Tribute which was an ordinary payment Of imposition and super-impositions which were payments laid upon the subject above ordinarie taxe for some present necessity to which charges the ordinary taxe doth not suffice which was not to be done but upon great and urgent cause by a Councell called together and with the consent of the subject Of Collectors of the Subsidies and in what manner they are to be collected and brought into the Exchequer and of the punishment of those that in the collection thereof extort more than is due that it shall be lawfull to distrain for Tribute unpaid that such acquittances as the Exchequer shall deliver unto the accomptants shall be their full and finall discharge and that the Subsidie Bookes shalt every quarter be sent up into the Exchequer with the account of the Collectors that thereby it may appear how much every man hath paid or oweth unto the Exchequer and that nothing may be done for the grievance of the poore or the favour of the rich Of the Booke of accounts of yearly gifts that commonly Subjects present unto the Prince at New-years-tide and otherwise and that they be divided from the accounts of the Exchequer That no man be freed from the payment of Tribute Of spending out such ancient gain and other like provision as is laid up in the common store-house and making provision for a new and compelling the subjects such as have plenty of such grain if it happen to be vinoed and mustie to buy the same that the whole losse thereof may not lye upon the Exchequer What pension such Mannors as the Prince hath given or released from payment of Subsidies shall give and that no man be so hardy to beg such a matter of the Prince lest the revenues of the Exchequer be thereby diminished Of Manners that have beene translated from the payment of one kinde of provision to an other or that have beene in their taxation over-rated Of Brasse that Minerall Countries are to yeeld or money in lieu thereof Of Controllers whose Office it was to cast over again such accounts as were brought into the Exchequer or to examine them a-new lest perhaps there might be an errour in them And so farre as concerning those things which doe appertain to the account of the Exchequer or the patrimony thereof or such pensions or payments as are due unto the same Now followeth the other part of this tenth Booke which conteineth the burthens duties or offices imposed on the subject by the Exchequer and what excuse the subject might alleage in this behalfe Burthens or duties were either personall as places of Honour which were not to be continued from the father to the childe or they be Patrimoniall which are charged upon mens inheritance either for the good of the common-wealth or to enrich the Exchequer against dangers that are like to ensue which are undertooke and performed either by those which are of necessity to obey that which is enjoyned them or by those which offer themselves voluntarily thereto which seldome happeneth in patrimoniall charges but in matters of Honour and personall services it many times commeth to passe that men excuse not themselves from bearing of Offices or doing of personall services although they have an immunitie from them either by the grant of the Prince which is to be understood of extraordinary service only and not of ordinary or by the benefit of the Law for by the Law men are many times upon just causes excused from Personall services so it be not from such services as no man can excuse himselfe from such as are Postings and carriages when the Prince passeth by or the Tenure of his Inheritance doe so require it and the erecting and repairing of Bridges Wayes and Wals the provision and
and that no poast-horse or carriage be taken but for publick use of poast-letters to whom they are to be granted and for what time Of the Apparitors Sergeants Sumners or Baylifes Of sundry great officers and of their Scribes and Registers and of their trials Of the fees of Advocates and of the extortion of Apparitors And this is the summe of those things which are specially conteined in the Code besides other things which it hath common with the Digest the knowledge whereof at this day is not so necessary for the Civilian who in this age hath little use thereof as it is expedient for Councellours of State and such as are called to place in Court who may there-out marke many things to direct them in their place as the variety of those things which are herein handled doth very well shew CHAP. III. SECT 1. What the Authenticks are and why they are so called THe third Volume of the Law is called the Authenticks of the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 either because they have authority in themselves as proceeding from the Emperors owne mouth or that they are originals to other writings that are transcribed out of them The Authenticks therefore are a Volume of new Constitutions set out by Justinian the Emperor after the Code and brought into the body of the Law under one Booke In the Authenticks is not that order observed in the disposition of the Lawes as is either in the Digest or the Code but as occasion was offered of any doubt wherein the Princes resolution was necessary to every thing so it is set downe without any other methode or forme The whole Volume is divided into * In the Latine translation for the Greeke text acknowledgeth not this division into Collations 9. Collations Constitutions or Sections and they again into 168. Novels which also are distributed into certaine Chapters They were called †quòd novissimè promulgatae sint post Cod. Justin. Repetitae Praeâ—ectionis and therefore the Greeke calleth them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 so likewise the constitutions of the Emperours which were newly published after the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 were called the Novels of Leo Nirephorus Michael c. Novels because they were new Lawes compared to the Lawes of the Digest or the Code Of these Constitutions some were generall and did concerne all who had like cause of doubt some other were private and did concerne only the place or persons they were writ for which I will overpasse with silence SECT 2. The summe of the first Collation OF the generall the first title and first Novell of the first Collation is that Heires Feoffees Executors Administrators and their Successors shall fulfill the Will of the deceased and within one yeare after his decease shall pay his Legacies and Bequests and if they be once sued for it they shall forthwith pay that which is due upon the Will deducting onely a fourth part which is due unto the heire by the Law Falcidia or else to lose such bequests as themselves have in the Will That it shall not be lawfull for a Widow comming to a second marriage after her first husband is dead to sequester one of her children from the rest upon whom shee will bestow such things as her first husband gave her before marriage but that the benefit thereof shall be common to them all Neither that shee convey it over to her second husband or his children and so defraud her first husbands children And that a man in like sort surviving his wife shall doe the like toward his first wives children as concerning such Dowry as the first wife brought to her husband Of Suerties and Warranties that the Creditors shall first sue their Debtors and take execution against their goods and finding them not payable shall then take their remedy against the Suerties Of Monkes that they build no Monasteries but with the leave of the Bishop who is there with prayer to * lay But the Emperour maketh no mention of this Rite for thus saith the Law None shall presume to erect a Church or Monasterie till the Bishop of the place beloved of God having beene made acquainted with it shall come and lift up his hands to heaven and consecrate the place to God by prayer 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and there erect the Symbole of our Salvation wee meane the venerable and truely pretious Rood In Auth. De Monach. § Illudigitur Coll. 1. See also Novell 123. 131. And the like is commanded in the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Yet that this Ceremony of laying the first stone hath beene of ancient use in the Greeke Church may be observed out of their Euchologue where it is said that the Bishop after some other Rites performed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 standing in the place where the holy Altar shall be set saith a prayer which being ended he giveth the Ite Missaest and then taketh up one of the stones and having cut a Crosse upon it himselfe with his owne hands layeth it upon the Ground-worke then hee pronounceth the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. and so the work-men begin the building That which followeth in the Euchologue discovereth the forme and manner of setting up the Crucifixe which the Law calleth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Reader may see 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of the Euchologue The like Ceremonies are used in the Latine Church at this day as may bee seene in their Pontificale page the 281. of that which Clement the 8. set out at Rome in the yeare 1565. the first stone And that the Bishop shall appoint such an Abbot over the Monkes as in vertue and in merit excels the rest And besides of their habit conversation professions and change of life and who is to succeed them in their goods and inheritance Of Bishops and Clerks that is that Bishops and Clerks be of good fame of competent learning and age and that they be ordeined and promoted without Simonie or briberie or the injury of the present Incumbent And that there be a set number of Clerkes in every Church lest the Church and Parishioners thereby be over-charged SECT 3. What is conteined in the second Collation THe second Collation treateth of the Churches State that the lands of the Church be neither sold aliened nor changed away but upon necessity or that they be let to farme for a time or upon other just cause no not with the Prince himselfe unlesse the change be as good or better than that which hee receiveth from the Church and if any man presume contrary to this forme to change with the Church hee shall lose both the thing he changed and the thing he would have changed for it and both of them shall remaine in the right of the Church And that no man give or change a barren peece of ground with the Church That Judges and Rulers of Provinces bee made without gifts of their office power authoritie
of Divine Service and the Eucharist of Baptisme and the effect thereof of a Priest not baptized of Fasting Purification of women and other like ceremonies pertaining to Ecclesiasticall discipline Of building and repairing Churches and of their Church-yards and the immunitie that belongs to them both and of sundry other things in like sort pertaining to the Church That Clerks and other Ecclesiasticall men trouble not themselves about Civile matters contrarie to their office and profession SECT 6. What is conteined in the fourth Booke of the Decretals THe fourth Booke disposeth of matters of Espousals and Matrimonie and sheweth what words make Espousals what Matrimonie of the Betrothing of such as are under age of clandestine Espousals and Contracts and of what account they are to be had of in the Church and how they may be made good Of her that hath betrothed her selfe to two men whose wife shee shall be what conditions may be put in Espousals and what not what Clerks or Votaries may marrie and what not Of him that hath married her with whom before he hath committed adulterie and whether the same second Matrimonie be good whereupon the resolution of the Law is that if the woman knew not that he had an other wife hee cannot leave her his first wife being dead under pretence he had an other wife alive when he married her but if shee knew of it and did joyne with him in practise for making away his wife he cannot marry her no though he were seperated from the other as concerning bed and boord Whether leprous men and other which are infected with like contagious diseases may marrie and whether being married the marriage may not be dissolved upon this point Of kinred Spirituall or Legall and in what sort they hinder marriage of him that hath knowne his owne wifes sister or his owne cousin german and whether this offence doe breake the Matrimonie that is contracted or doe hinder the Matrimonie that is to be contracted Within what degrees of consanguinitie or affinitie a man may marrie Of such as are cold of Nature or inchanted by Sorcery whether they may marrie the like respect is of women who are unfit for men Of such as marrie against the Interdict or prohibition of the Church and what penaltie they incurre What children be held legitimate who they be that may be accusers or witnesses in cases of dissolution of Marriages betweene man and wife Of Divorces betweene man and wife which are caused by the diversitie of mindes that are then betweene them for that one seeketh to goe apart from the other and in what cases divorces are allowed and how many kinds there be of them of gifts betweene man and wife what securitie they have in Law and that the Dowrie after the divorce be restored to the woman so that it be not in case of Adultery and other such like filthinesse Of second Marriages in what cases they are to be permitted in what not SECT 7. What is the subject of the fifth Booke of the Decretals THe fifth Booke treateth of such Criminall matters as are handled in Ecclesiasticall Courts wherin the proceeding is either by accusation whereto the Accuser doth subscribe his name because it tendeth to punishment or else by denunciation whereto the Informer doth not subscribe his name because it tendeth only to the amendment of the party or by Inquisition which for the most part is not used but upon fame precedent albeit somtimes it be without fame if once the fame be proved then may enquirie be had of the trueth of the fact but yet without malice or slander The Criminall matters which are prosecuted in the Ecclesiasticall Courts and censured by Canonicall punishments are Symonie and selling of Ecclesiasticall graces and benefices whereupon Prelates are forbid to let out their Jurisdictions under an annuall rent and Masters and Preachers to teach for money The punishment of Jewes and Saracens and their servants that is If a Jew have a servant that desireth to be a Christian the Jew shall be compell'd to sell him to the Christian for xij pence That it shall not be lawfull for them to take any Christian to be their servant That they may repaire their old Synagogues but not build new That it shall not be lawfull for them upon good Friday to open either their doores or windowes That their wives neither have Christian Nurces nor themselves be nurces to Christian women That they weare divers apparell from the Christians whereby they may be knowne and other ignominies of like sort Who be Hereticks and what be their punishments who be Schismaticks and what be their punishments Of Apostates Anabaptists and their punishments Of those that kill their owne children and their punishments Of such as lay out young children and other feeble persons to other mens pitie which themselves have not and how they are to be punished Of voluntarie or casuall murthers Of Tilts Barriers and Tornament Of Clerks that fight in combate Of Archers that fight against Christians Of whoredome and adulterie and how they are to be punished Of such as ravish women and their punishment Of Theeves and Robbers Of usurie and the paine thereof Of deceit and falshood Of Sorcerie Of collusion and cosenage and the revealing of the same Of childrens offences and that they are not to be punished with the like severitie as mens offences are Of Clerks hunters or hawkers who if they often times use and sport themselves therein if they be Bishops they are to be suspended from the Communion three moneths if Ministers or Priests two but if he be a Deacon he is to be suspended from his office If a Clerk often times strike other men and being admonished to forbeare such kind of violence doe neverthelesse continue in his folly he is to be deposed If a Bishop cause any man rigorously to be whipt he is to be suspended from saying service two moneths Such as speak ill of Princes and other like great persons spirituall or temporall are to be punished so that others by their example may take heed to speake ill specially such as blaspheme the Majestie of the Almighty God If Clerks excommunicated deposed or interdicted or that came to the highest order without passing thorough the inferiour orders or that came to the same order covenously and deceitfully or being not ordered at all or at the least not ordered lawfully dare take upon thē either to minister the holy Sacraments or to say divine Service they are to be deposed from their office and from their benefice and never after to be ordered Prelates are not to greeve their subjects either with rash suspension or excommunication of their persons or interdicting of their Churches but they are to execute all those censures of the Church in judiciall order they are not easily to suffer any man to hold two Benefices where one may suffice or to reteine any thing to his owne use in a Church wherein he hath collation or
else but robberie and bloud-shed or they are so termed of the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is of their wandring up and downe and resting in no place but coasting hither and thither to doe mischiefe A Pirate is a Sea-thiefe who for to enrich himselfe either by subtilty or open force setteth upon Merchants and others trading by sea ever spoyling them of their loading if they get the upper hand and somtimes bereaving them of their life and sinking of their ships The proceeding of these Criminall matters is by accusation and information and after by triall of twelve men upon the evidence according to the lawes of this land and the lawes of the ancient Feudes of Lombardie where the like triall is and from whence it seemeth this of ours was first derived But here must wee note that matters of reprisals are no piracies although many times there fals out no lesse outrage in them for spoyling and slaying of men than doth in the other for that Reprisals are done by the Princes commission granted to the subject for redresse of some injurie done to himselfe or his subject by some other forreine Prince or subject and amends hath beene required by law and cannot be had whereupon licence is given to the subiect to releeve himselfe by what way he can against the other Prince or any of his subiects by taking so much goods of his as himselfe was indamaged which course is held among Princes the rather to afford Justice where it is lawfully demanded Bartol l. nullus num 2. C. de Judeis Coelicolis SECT 4. That the things which extraordinarily belong unto the Cognisance of the Civile Law are of three sorts and concerning the first which respecteth treaties betweene Prince and Prince ANd thus much of the causes which ordinarily doe belong unto the Cognisance of the Civile Law within this land Now it followeth that I speake somewhat of those things wherein the Civile Law dealeth incidently and by authoritie of the Prince is not the ordinarie object of the Civile law howsoever otherwise they cannot be handsomly dealt in but by such as have the skill of the Civile Law Whereof there be three sorts the first is matters of forrein treatie betweene one Prince and another the second is the ordering of martiall causes whether they be Civile or Criminall in an Army the last is the Judgements of Ensignes and Armes and the decisions for challenges of rights of Honour and precedencie where any of them is in controversie For the first whereas all other Nations in compasse round about us be governed by the Civile Law and treaties are to be decided by Law both for those things which are in question and to be concluded by Law and for those things which are determined by consultation and agreed upon who is thereto to be chosen rather than a Civilian to whom their law is knowne as well as to themselves and if perhaps he understand not their language yet hee understandeth that language wherein the lawes themselves are written and is the fittest tongue for treatises betweene Princes and Princes because it is a common tongue to the learned of all the West part of the world and thereby every Prince shall reteine his owne Majestie in parlying as it were in his owne language and not be forced to speake in an other Princes tongue which no doubt is a great disadvantage to him that shall treat for that every Nation hath some proper Idiom not so well discerned by the booke-speaker as perceived by the Natives of the countrey where it is spoken and wherein a stranger may easily be deceived How much forreine Princes doe esteeme of the skill of a Civilian in these matters it may be understood thereby that they never for the most part send any Embassage for the treatie of any league or matter of commerce but that one or moe of them are Civilians And if the care of these things be so great with them surely the estimation of the same ought not to be light with us for by what lawes their leagues and negotiations use to bee directed by the same must ours bee ordered so that for that point one kinde of learning must serve for both for that otherwise one Nation will not be convinced by the other what their capitulations are Surely such as over and besides their owne experience have the knowledge of the Civill Law have herein a double helpe above another man that wanteth the same First their owne understanding which for the most part is of like proportion as other folks is Then the skill of the Lawes themselves which are a quintessence of wit above other humane learning and were either wholly composed of the mature and deliberate resolutions of such Emperours as then swayed the whole world or were the doomes judgments of such wise men as then managed the whole world and the affaires thereof under them But who when hee seeth a sword in it's scaberd knoweth whether it will cut or not although the forme thereof be a presumption that it will but doe but draw it out of the scaberd and try the blade thereof and then shall you see the sharpenesse of it I make no application hereof for that my meaning by my words may be well enough knowne But in these matters the wisdome of the State knowes best what is to be done and I onely remember what other Nations doe leaving the rest to their gravest considerations who by precedents of former times and men of experience furnished with exoticke tongues have carried this part of pollicie very well and safely hitherto but now to the or 〈…〉 g of Martiall causes SECT 5. What are Martiall causes which are the second extraordinary matter belonging to the Cognisance of the Civill Law with us MArtiall causes are either Civill or Criminall whereof both are determinable by the Civill law A Civill Martiall cause is where either the Captaine or the Souldier requireth some thing that is due and withholden from him as his stipend his apparell which among the Romans was due twice a yeare that is their Sommer apparell from the first day of April to the first of September and their Winter from thence to Aprill his diet which among the Romans was two dayes hard bisket the third softer bread one day wine an other day vineger one day bacon and two dayes mutton his priviledges either in cases of preferment as to be removed from one degree to another or in cases of immunitie as to be freed from all servile functions If. de re militari Câ—eod tit l. 12. ff de privilegio veteranorum de castrensi peculio C. eodemtit l. 12. C. de erogatione militaris annonae C. de vest militari and sundry other like which a diligent reader may gather out of the titles of the Digest and Code of militarie affaires and other like titles which accompany them Souldiers faults are either proper to themselves or
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
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