Nephew And thus much of succession of kings wherein the eldest among Males hath the prerogatiue and the like in Females if there be no Male for that a Kingdom is a dignitie vndiuisible and can come but to one bee hee Male or Female for that otherwise great gouernments would soone come to small Rules and Territories And the like that is said of Kingdoms is to be held of all Dignities vnder Kingdomes where the eldest son is to bee preferred before all his other brethren and they successiuely one before another if there be no issue left of them that goe before and the Male line is to be preferred before the Feminine and the Feminine before all the rest of the kindred so it be not a Masculine Feud and the same intailed vpon the heire Male. And thus far as concerning the matters wherein the Ciuile Law dealeth directly or incidently within this Realme Now it followeth to shew how much of all those titles of the Canon Law which haue bin before set downe are here in practise among vs. Of those Titles of the Canon Law which before haue béene recited some are out of vse here with vs in the singular or Indiuiduum by reason of the grosse Idolatry they did containe in them as the Title of the authoritie and vse of the Pal the title of the Masse the title of Reliques the worship of Saints the title of Monks and Regular Canons the title of the kéeping of the Eucharist and Creame such other of like qualitie but yet are retained in the generall for in stead of them there are substituted in their places holy worships tending to the like end of godlinesse those other did pretend but void of those superstitious meanes the other thought to please God by and so in stead of the Masse hath come in the holy Communion and in place of worshipping of Saints hath succeeded a godly remembrance and glorifying of God in his Saints and so of the rest whereof there is any right vse within the Church Some other are out of vse as well among the Ciuile 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 Giuing by déed of gift of Detecting of Collusion and Cosenage of Murder of Theft and receiuing of Théeues and such like And yet I doubt not but euen these matters as well Ciuile as Criminall or most of them were aunciently in practise and allowed in Bishops Courts in this Land among Clerkes to the which I am induced by three reasons First that I find not only the forraine Authors of the Decretals but also the domesticall Authors of the Legantines being all most excellent wise men as the Stories of their seuerall ages do report to haue inacted these seuerall constitutions and to haue inserted them not onely in the bodie of the Canon Law but also in the bodie of the Ecclesiasticall Lawes of this Land and that some wise men sundry years after their ages did write and comment vpon the same as things expedient and profitable for the vse of the Church and the gouernment of the Clergie in those daies neither of which I doe presume they would haue done if in those ages there had not béene good vse and frée practise of them Secondly that I find in the Code of Iustinian by sundry Laws some of his own making some other of other Emperors before his time euen from the daies of Constantine the great bishops in their Episcopall audience had the practise of these matters as wel Criminal as Ciuile and to that end had they their Officials or Chauncellors whom the Law calleth Ecclesiecdici or Episcoporum Ecdici that is Church Lawyers or Bishops Lawyers men trained vp in the Ciuile and Canon Law of those ages to direct them in matters of Iudgement as well in Ecclesiasticall Criminall matters as Ecclesiasticall Ciuile matters And that these which now are Bishops Chauncellers are the verie selfe same persons in Office that aunciently exercised Ecclesiasticall Iurisdiction vnder Bishops and were called Ecclesiecdici it may appeare by that which Papias an old auncient Historiographer cited by Gothofred in his Annotations vpon the foresaid Law Omnem in the Code and title de Episcopis and Clericis and vpon the § Praeterea writeth of them who saith thus that Ecclesiecdici or Ecdici were those that were ayders and assisters to the Bishops in their Iurisdictions not astrict or bound to one place but euery where through the whole Diocesse supplying the absence of the Bishop which is the very right description of the Bishops Chauncellers that now are who for that they carrie the Bishops authoritie with them euery where for matters of Iurisdiction and that the Bishop and they make but one Consistorie are called the Bishops Vicars generall both in respect their authoritie stretcheth it selfe throughout the whole Diocesse also to distinguish them from the Commissaries of Bishoppes whose authoritie is onely in some certaine place of the Diocesse and some certaine causes of the Iurisdiction limitted vnto them by the bishops and therefore are called by the Law Iudices or Officiales foranei as if you would Clem 2. ca. foraneos de rescript say Officiales astricti cuidam foro diocesis tantum So that it is a very méere conceit that a certaine gentleman very learned and eloquent of late hath written that Chauncellers are men but of late vpstart in the world and that the sloth of bishops hath brought in Chauncelors wheras in very déed Chauncellers are equall or néere equall in time to Bishops themselues as both the Law it selfe and Stories do shew yea Chauncellers are so necessarie Baldus l. aliquando ff de officio Proconsulis officers to Bishops that euery Bishop must of necessitie haue a Chaunceller and if any Bishop would séeme to be compleat within himselfe that he néeded not a Chaunceller yet may the Archbishop of the Prouince wherein he is compell Couar lib. 3. variarum resolut c. 20. num 4. S. Brâ—zâ— lâ—b 1. de vicaâ—â—o 〈◊〉 q. 46 nâ—m 1. 4. 12. 13. him to take a Chaunceller or if he refuse so to doe put a Chaunceller on him for that the Law doth presume it is a matter of more weight than one man is able to susteine to gouerne a whole Diocesse by himselfe alone and therefore howsoeuer the nomination of the Chaunceller be in the Bishop yet his aucthoritie comes from the Law and Hostiensis in sum made officio Vicarij numoro 2. in sine nomirationem ab 〈◊〉 potestatem vero a iure recipiuntur therefore he is no lesse accompted an Ordinary by the Law than the Bishop is But trueth it is not the sloth of the Bishops but the multitude and varietie of Ecclesiasticall causes brought them in which could not be defined by
the same word Elsewhere is to be ment and conceiued of the places of remoue the Popes vsed in those dayes being somtimes at Rome in Italy sometimes at Auignion in France semetimes in other places as by the date of the Bulls and other processe of that age may be séene which seuerall remoues of his gaue occasion to the Parliament of inserting the word Elsewhere in the bodie of those Statutes that thereby the Statutes prouiding against Processe dated at Rome they might not bée eluded by like Processe dated at Auignion or any other place of the Popes aboade and so the penaltie thereof towardes the offender might become voyd and be frustrated Neyther did the Lawes of this Land at any time whiles the Popes authoritie was in his greatest pride wythin this Realme euer impute Praemunire to any Spirituall Subiect dealing in anie Temporall matter by any ordinarie power wythin the land but restrained them by Prohibition only as it is plaine by the Kings Prohibition wherein are the greatest matters that euer the Clergie attempted by ordinarie and domesticall authoritie and yet are refuted only by Prohibition But when as certeine busie-headed fellowes were not content to presse vpon the kings Regall iurisdiction at home but would séek for meanes for preferment by forrein authoritie to controul the Iudgements giuen in the kings Courts by processe from the Pope then were Premunires decréed both to punish those audacious enterprises of those factious Subiects and also to check the Popes insolencie that he should not venter hereafter to enterprise such designements against the King and his people But now since the feare thereof is past by reason all entercourse is taken away betwéene the Kings good Subiects and the Court of Rome it is not to be thought the meaning of good and mercifull Princes of this land is the cause of these Statutes being taken away the effect thereof shall remaine and that good and dutifull subiects stepping happily awry in the exercise of some part of their Iurisdiction but yet without preiudice of the Prince or his Regall power shall be punished with like rigor of Law as those which were molesters gréeuers and disquieters of the whole estate But yet notwithstanding the edge of those Premunires which were then framed remaine sharpe and vnblunted still against Priests Iesuits other like Runnagates which being not content with their owne natural Princes gouernment séek to bring in againe that and like forrein authoritie which those Statutes made prouision against but these things I leaue to the reuerend Iudges of the land and others that are skilfull in that profession onely wishing that some which haue most insight into these matters would adde some light vnto them that men might not stumble at them and fall into the daunger of them vnawares but now to Prohibitions A Prohibition is a commaundement sent out of some of the Kings higher Courts of Records where Prohibitions haue bin vsed to be graunted in the Kings name sealed with the seale of that Court and subscribed with the Teste of the chiefe Iudge or Iustice of the Court from whence the said Prohibition doth come at the suggestion of the Plaintife pretending himselfe to be grieued by some Ecclesiasticall or marine Iudge in not admittance of some matter or doing some other thing against his right in his or their iudiciall procéedings commaunding the said Ecclesiasticall or marine Iudge to proceed no further in that cause if they haue sent out any censure Ecclesiasticall or Marine against the plaintife they recall it and loose him from the same vnder paine of the Kings high indignation vpon pretence that the same cause doth not belong to the Ecclesiasticall or Marine Iudge but is of the temporall cognisance and doth appertaine to the Crowne and dignitie Prohibitions some are Prohibitions of Law some other are Prohibitions of fact Prohibitions of Law are those which are set downe by any Law or Statute of this Land whereby Ecclesiasticall Courts are interdicted to deale in the matters therein contained such as are all those things which are expressed in the kings Prohibition as are also those which are mencioned by the second of Edward the sixt where Iudges Ecclesiasticall C. 13. 2. Edw. 6. are forbid to hold plea of any matter contrarie to the effect intent or meaning of the statute of W. 2. Capite 3. The statute of Articuli Cleri Circumspecte agatis Sylua Cedua the treaties De Regia Prohibitione the Statute Anno 1. Edwardi 3. Capite 10. or oght else wherein the Kings Court ought to haue Iurisdiction Prohibitions of fact are such which haue no precise word or letter of Law or Statute for them as haue the other but are raised vp by argument out of the wit of the Deuiser These for the most part are méere quirks and subtilties of law and therfore ought to haue no more fauour in any wise honourable or well ordered Consistorie than the equity of the cause it selfe doth deserue for such manner of shifts for the most part bréed nought else but matter of vexation and haue no other commendable end in them though they pretend the right of the Kings Court as those other Prohibitions of the law doe but the Kings right is not to be supposed by imagination but is to be made plaine by demonstration and so both the Statute of the 18. of Edward the third Capite 5. is where it is prouided no Prohibition shall goe out but where the King hath the cognisance and of right ought to haue and also by the forenamed Statute of Edward the sixt which forbids that any Prohibition shall bee graunted out but vpon sight of the libell and other warie circumstances in the said Statute expressed by which it is to bee intended the meaning of the Lawgiuers was not that euery idle suggestion of euery Attorney should bréed a Prohibition but such onely should bee graunted as the Iudge in his wisdome should thinke worthy of that fauour and of right and equitie did deserue it although as I must déeds confesse the Statute is defectiue in this behalfe for to exact any such precise examination of him in these cases as it is also in other points and is almost the generall imperfection of all statutes that are made vpon Ecclesiasticall causes but I feare me as emulation betwéene the two lawes in the beginning brought in these multitudes of Prohibitions either against or beside law so the gaine they bring vnto the Temporall Courts maintaineth them which also makes the Iudges they cesse not costs and damages in cases of of Consultation although the statute precisely requires their assent and and assignement therin because they would not feare other men from suing out of Prohibitions and pursuing of the same The Prohibitions of the law as haue beene before shewed are neither many nor much repined at because they containe a necessarie distinction betwéene Iurisdiction and Iurisdiction and imply the kings right and subiectes benefit but the
al should be ended in one and the selfe same Court which would be a great ease to the subiect who to his intollerable vexation and eycessiue charges is compelled to run from Court to Court and to gather vp as it were one lim of his cause here and another there and yet happily in the end cannot make a whole and perfect body of it Beside it is a mightie disorder in a common wealth thus to iumble one Iurisdiction with another the very confusion as well of the one law as the other for as kingdomes are preserued by knowing their bounds and kéeping their lymits so also Iurisdictions are maintained and vpheld by containing themselues within the lists or banks of their authoritie Further vnlesse they will graunt there is an Ecclesiastical custome as there is a Seculer Custome and that the one is as well to be tryed in the one Court as the other is in the other they will make their owne Doctrine in the before-rehearsed Prohibition void where they certaine vs there is a Seculer Custome and if there be a Seculer custome then doubtlesse there is also an Ecclesiasticall or spirituall custome for the word Seculer is not put in that place absolutely Glos in Clem. vnâ—â—a in verbo aterna â—teâ— de summa trinit f de catholica but relatiuely and the nature of Relatiues is one to put another one to remoue another but by the Seculer custom they but the Ciuilian therfore they grant him the spirituall for of contrarie things there are contrarie reasons and contrarie effects and what that which is proposed doth worke in that which is propounded the same againe that L. Fin. § pâ—us â—â—tem de legatis 3. ibi Angel which is opposed doth worke in that which is opponed by which Rule as Temporall Lawyers are to deale in Temporall Customes and spirituall men are not to intermedle therin so also Ecclesiasticall Lawyers are to deale in Ecclesiastical causes and that temporal Lawyers are not to busie themselues thereabout And that this was the intent of the king when he first receiued the Church into his protection with all the priuiledges therof may appeare hereby that hauing vnited both the Iurisdictions in his owne person hee did not iumble them both together as now they are but kept them distinct one from the other not only in authorising the Ecclesiasticall Courts that were before but also in vsing the verie words and phrases that the Iurisdictionaries Ecclesiasticall did vse euery where in their writings euen these words whereupon men now take hold to frame Prohibitions vpon viz. according to the laudable customs vsages of the parish and places where such Tythes growe which were the words of Innocent the third in the Decretals vpon the title of Tythe long before these statuts were made or any other statuts concerning the true payment of tyths and Linwod in the same title of tithes often vseth the very selfe same words and phrases that the other doth so that if these words made no Prohibition before the statute as I think it cannot well be shewed to the contrarie neither ought they to do it now since the statute for that they are taken still in the Church businesse and not in a temporall matter whose gouernment although it be vnder one and the selfe same Prince that the Temporall state is yet is it distinct from the same as euer it hath bin since there hath bin any setled forme of Church gouernment many common 1. Corinth 5. wealth as may appear both by the example of S. Paul which neuer goeth to any temporal power to punish the incestuous person although there were sundry lawes then both in Gréeke and Latine written of these matters but doth it by the spirituall sword alone and also by that that in matters of Iar for worldly causes betwéen brother and brother he forbids such as were new Christians to go to law before 1. Corinth 6. Infidels but aduiseth them rather to appoint Iudges among themselues to decide such controuersies which albeit in those daies was ment as wel of lay Christians as of the ministers of the Gospell for that the number of them then was small and the causes of suit they had one against another were not many and might easily be ended by one and the selfe same consistorie yet when the number of the Christians increased and the Church got some rest from persecution the Iurisdiction was againe diuided and as there were Seculer Courts appointed by Princes wherin Temporal mens causes and Lay businesses were heard so there were also by the same authoritie erected Ecclesiasticall Courts and Bishops C. de episcopall audienta tâ—rtis audiences wherin either Ecclesiasticall mens causes alone or such as they had against Lay men or Lay men against them were treated of and determined So that this was no new deuise of Henry the eight or Edward his sonne that when they tooke vpon them the supremacie ouer the Church as they had before ouer the common wealth they did not mishmash both the states together and made one confused heape of them both but left them seuered as they found them only affording either of them an equall proportion of protection for that by these two parts the kings Monarchie is compleat and himselfe is the head and chiefe Gouernour of the whole and entire bodie of his Realme For this was exemplaried vnto them in all former ages since the Church and common wealth had any louing and kind cohabitation together as hath béene before remembred And therefore doe they wrong to the ashes of those kings deceased which by subtill sence and strained interpretations draw these Lawes which they intended for the benefit of the Church and Church gouernment to the ouerthrow of the same as though the Positiue Lawes of the kingdome could not stand if the Lawes of the Church continued and stood vp right Vpon the same words of the same Statute if perhaps at any time there grow any controuersie about the limits or hounds of Parishes they draw the same by like importunitie from the triall of the Ecclesiasticall Law vnto the Common Law auouching the same also to bee of the Temporall cognisance and yet Linwod who liued in the daies of Henry the fift making a Catalogue of the principall matters that in his daies belonged vnto the Ecclesiasticall Courts reckoneth the bounds of Parishes for one And very like it is it should so be for that Ecclesiasticall men first in this Kingdome made diuisions of Parishes as by our owne Cronicles it appeareth and the first practise thereof within this Realme came from Honorius the fourth Archbishop of Canterbury after Augustine who himselfe died in Registro Eccle. XpÌ„i Cant. Stow. the yere of our Lord God 693. although otherwise the thing it selfe be more auncient and discends from the councell of Saint Paul he gaue to Titus to appoint Elders in euerie Citie but that Cities and Countries againe are
analogie in them and therefore the Reuerend Iudges are to be intreated because they challenge vnto themselues the opening of the statuts alone albeit peraduenture that be yet sub Iudice where the Statute of Ecclesiasticall causes is to bee interpreted that they would recall such exorbitant interpretations as haue of late gone abroad vpon these Statutes and restore them to their auncient sence and vnderstanding No man can so cunningly cloake an interpretation but another will be as cunning as he to spy it out and then the discredit will be the Lawes A small error saith Aristotle in the beginning is Lib. 1. Poliâ—iâ— a great one in the end and he that goeth out of the way a little the longer hee goeth on the further he is off from the place his voyage was to and therefore the spedier returne into the way againe is best The old Prouerbe is He that goeth plainly goeth surely which may be best verified in the exposition of the Law if any where else for commonly men offend no where more daungerously than vnder the authoritie of the Law and therefore one saith very well that There are two salts required in a Iudge the one of knowledge whereby hee may haue skill to Iudge vprightly the other of conscience whereby hee may bee willing to iudge according to that as his skill leadeth him vnto both which being in the graue Iudges it is not to bee doubted but they will bee easily induced to reuiue their owne and their predecessors interpretations and reduce such exorbitant expositions as haue scaped out thereof vnto the right and naturall sence thereof which if perhaps they shall bee loath to doe for because it makes for them or for some other like partiall respect then humble supplication is to bee made vnto his Maiestie himselfe will be pleased to giue the right sence of those things which are in controuersie betwéene both the Iurisdictions for his Maiestie by communicating his authoritie to his Iudges to expound his Lawes doth not thereby abdicate the same from himselfe but that he may assume it againe vnto him when and as often as him pleaseth Whose interpretation in that is to bee preferred before theirs first that his interpretation is impartial as hee that will not weaken his left side to make strong his right for so are these Iurisdictions as they are referred vnto his politicke bodie but will afford them equall grace and fauour that he may haue like vse of them both either in â— 1. num 8. C. 〈◊〉 L. 1. num â— C eod l omnes popuâ—â— ff de in stit iure fortaine or domesticall businesse as occasion shall serue then that his Iudges interpretation maketh right only to them betwéene whom the cause is but his highnesse exposition is a Law vnto all from which it is not lawfull for any subtect to recéed neither is reuersable by any but by himselfe vpon a second cogitation or him that hath like authoritie as himselfe hath and therefore most fit to be interposed betweene Iurisdiction and Iurisdiction that the one partie bee not Iudge against the other in his owne cause which is both absurd and dangerous And let this suffice for the right interpretation of Lawes and Statuts now it followeth that I speake something of the supplies that may be made to the defects that are in the same It is not to be doubted but it was the full minde intent of the Law-makers which made those thrée Statutes to infeoffe the Ecclesiastical Courts in the inheritance of all those causes that are comprised in those Statutes saue those that are by speciall name exempted and did by the said Statute as it were deliuer vnto them full and quiet possession of the same for euen so sundry braunches of the said Statute doe shew as I haue elswhere made it manifest and that there hath growne question vpon many points thereof and that the professors of the Ecclesiasticall law haue béene interrupted in the quiet possession thereof commeth of the vnperfect penning of the same and not of any iust title or claime that may be made by the porfessors of the other Law therunto but this is a thing not only proper to these thrée Statuts but also Common to all other Statutes which are writ of any Ecclesiasticall causes within this Land which notwithstanding may be remedied if it séem good vnto his sacred Maiestie the rest of the wisdom of the land assembled together at any time for the making of wholsome Lawes and the reforming of the same by supply of a few words in some places or periods that are defectiue and yet kéeping the true meaning and sense of the same As for example in the statute of the two and thirtieth of Henry the eight in the § wherefore néere the beginning of the same Statute the Statute ordering that all persons of this Realme and other of the Kings Dominions shall truely and effectually set out and pay all and singuler Tythes according to the lawfull customes and vsages of the Parishes where they grow and become due because there is a question made where these customes and vsages shall bee tried in the Ecclesiasticall or Temporall Law if these or the like words had beene added to the same to be prooued before an Ecclesiastical Iudge after the form of the Ecclesiastical Law not elswhere the whole matter had bin cleere for that point And whereas againe in the end of the same Statute there be some good words tending to the appropriating of these matters of Tythes and Oblations and other Ecclesiasticall duties to the Ecclesiasticall Courts as that the remedie for them shall be had in the Spirituall Court according to the ordinance of the first part of that Act and not otherwise yet because there is no penaltie to that act busie men easily make a breach thereinto for that Lawes without penalties for the most part are weake and of no force if therefore this or the like supply were made if any man sue for these or like duties in any other Court than in the Kings Ecclesiasticall Court the partie so suing to forseit the treble value of that which he sued for to be recouered in the kings Ecclesiasticall Court where it ought to haue beene commenced by the way of Libell or Articles the one halfe therof shal be to the king the other to the partie grieued many of these suits would easily be met withall Neither is it to the purpose that this is matter of mony and Lay fee that should be in this sort forfeited and therefore is not Regularly to bee sued for in the Ecclesiasticall Court yet because the cause is Ecclesiastical vpon which the matter of forfaiture ariseth it may bee verie well allowed Ne continentiae causarum diuidantur and for that ordinarily euery Iurisdiction that is wronged may defend it selfe with a penaltie beside we do by the like right in the Ecclesiasticall courts recouer expenses of suits in Law fées of Aduocats and
A VIEW OF THE CIVILE AND ECCLESIASTICAL LAW AND wherein the practise of them is streitned and may be relieued within this Land Written by THOMAS RIDLEY Doctor of the Ciuile Law Iura sua vnicuique professioni sunt seruanda alioqui nihil aliud erit quà m omnium ordinum confusio c. peruenit 11. q. 1. LONDON Printed for the Company of Stationers Anno. 1607. To the High and Mightie Prince IAMES by the grace of God King of great Britaine Fraunce and Ireland Defender of the Faith c. MOST gratious Soueraigne since it hath pleased your Maiestie of your Princely care towards the Church and your common wealth to take knowledge of some differences that are in Iudicature betweene your Ecclesiasticall and Ciuile Law and the Temporall Law of this Land by which ioyntly your Maiesties State is managed next after your owne most rare prouidence and the wisdom of such whom it hath pleased your Highnesse to associat vnto your selfe in the great affaires of your Kingdome I haue bin bold to offer vnto your Maiestie this simple Treatise as that which doth lay out the cause of those Differences more particulerly than any man hitherto hath expressed the same In comming to which because I doe speake for those parts of your Maiesties Laws which are lesse knowen vnto your people and esteemed no otherwise of them than they see the practise thereof to be here within your Land I haue thought good as it were in a briefe to set out the whole sum of both the Lawes to the view of the people that they may see there is more worth in those for whom I speake than was by many conceiued to be so that the profession of the Ecclesiasticall and Ciuile Law may appeare to the world neither to be ilde nor vnfit for the State so far as it hath pleased the Royall predecessors of your Highnesse to giue entertainment vnto it and your Maiestie your selfe to admit of it In al which there is no other thing sought than that such grieuances as haue bin of late offered by one Iurisdiction vnto the other and in consequence to all your subiects who follow any suits in the Ciuile or Ecclesiasticall Courts may by your Princely wisdome be considered and by your authoritie be redressed if they be found to be grieuances indeed for now as things are neither Iurisdiction knowes their owne bounds but one snatcheth from the other in maner as in a batable ground lying betweene two Kingdomes but so that the weaker euer goeth to the worse and that which is mightier preuailes against the other the professors thereof being rather willing to giue Lawes and interpretations to other than to take or admit of any against themselues For which the weaker appeales vnto your Highnesse humbly desiring your Maiesties vpright and sincere Iudgement to discerne where the wrong is and to redresse it accordingly which is a worke worthy your Maiesties high consideration For as the Land is yours so also the Sea is yours the Church is vnder your Highnesse protection as a child is vnder his Tutor so that all the Lawes therof appertaine vnto your Maiesties care and comfort alike For which not onely the whole profession of your Ecclesiasticall and Ciuile Lawyers that now are but those which shall succeed in those places for euer hereafter vnto the worlds end will praise and magnifie your Maiesties gratious fauour towards them and wee that now are will pray to God for the long and happie prosperitie of your Highnesse and your posteritie ouer vs during the continuance of this Heauen and this Earth and after the passing away therof a perpetual fruition of the new Heauen and the new Earth wherein righteousnesse onely shall dwell for euer Your Maiesties most humble and dutifull Subiect Thomas Ridley To the Reader GENTLE Reader I confesse as I meditated this Treatise vpon mine owne motion as I doe sometimes matters of other argument when my leasure serues me thereto so also I doe not set it out to the view of the world vpon mine owne motion but was desirous it should haue bin keept in sauing that I must obey where I am bound The thing that gaue me cause to this meditation was that I saw many times how meanly men esteemed of the Ciuile and Ecclesiasticall Law of this Land valuing them by the practise of so much of them as we haue among vs. And therefore I thought good although not wholy to vnfold the riches of them yet to make shew of them folded vp in such sort as Mercers make shew of their silkes and veluets laid vp in whole peeces in their shops whereby it may be seene what great varietie they haue of all these kind of wares although the goodnesse of the ware it selfe cannot be discerned because it is foulded vp Beside seeing how frequēt prohibitions are in these daies in causes of either cognisance more than haue bin in former time I thought it not vnworthy my labour to inquire and see vpon what iust grounds they are raised vp in this multitude not of any humour I haue to gaine say the lawfull proceedings of any court which I reuerēce most readily acknowledge their authoritie in all things belonging to their place but to know and search out the truth of those suggestions that giue cause vnto these prohibitions For whenas such Lawes as are written of these businesses are written indifferently as well for the one Iurisdiction as the other no man is to be offended if the one Iurisdiction finding it selfe pressed by the partial interpretation as it supposeth of the other inquire the groūd of such interpretation labour to redresse it if it may be by the right interpretation therof To the end that either Iurisdiction may reteine their owne right not the one be ouertopt by the other as it seemeth to be at this day And that in such matters as they cōceiue of their owne right as depend of no other authoritie but of the Prince alone which is the thing only that is sought in this little Treatise And therfore the Reuerend Iudges of this Land are to be intreated that they will vouchsafe an equal interpretation of these matters as well to the one Iurisdiction as the other for so it is comely for them to doe and if they doe it not the other are not so dull senced but they can perceiue it nor so daunted but that they can fly for succour vnto him to whose high place and wisdome the deciding of these differences doth of right appertaine PENELOPE is said to haue had many wooers comely in person and eloquent in speech but she respected none but her owne VLISSES Such should be the mind of a Iudge that whatsoeuer other apparance or shew of truth be offered one saying this is the true sence of the Law and another that yet the Iudge should respect none but the very true germane and genuine sence thereof indeed Which if it were religiously or indifferently obserued in euery
testamentarie or due to the next of kinne or datiue all which are either to be confirmed or disposed of by the Magistrate Administrations of Tutors and Curators and how farre they are indangered by their office and wherein they are to interpose their authoritie and consent and for what actes the pupils or minors may be sued done by the tutors or curators how any may be argued to be a suspected tutor or curator and how and by whom he may be remooued if there appeare iust cause of suspition against him A Tutor is chiefly set ouer the person of the childe secondly ouer his goods but the Curator or Gardian is chiefly set ouer the goods and then ouer the person of the child children their father being dead by the order of the Iudge are to be brought vp with their mother vnlesse she hath fled vnto a second marriage which if she haue done then is he to be brought vp with some of his néerest kinne such as is knowne to be an honest man and will haue a care of his good education with whom the Iudge is to allowe him such maintenance as all his stock be not spent therein but euermore something be left against he come to full age When the time of Tutelage or curatorship is ended they are to render accompt vnto the Iudge what they haue receiued and how they haue expended the same and what residue is left and according as their proofes are either by oath or otherwise so the Iudge either alloweth or disalloweth the same If the Tutors or Curators proue bankrupt or vnable to satisfie the Pupill or Minor then lieth an action against their suerties for the satisfaction of the same and if both of them faile then lieth it against the Iudge or Magistrate if either he haue not receiued any caution at all of the Tutors or Curators or hath receiued an vnsufficient caution or vnsufficient suerties knowing them to be vnsufficient otherwise he is not to secure fortune and future cases of the child the Tutors or curators are to sell nothing of those things that are the childrens sauing such things which by kéeping cannot be kept vnlesse they haue the order or decrée of the Iudge thereunto which the Iudge is not to decrée vnlesse the child be so far in debt that it cannot be satisfied without selling some part of the other goods or there be some other like iust and necessarie cause like vnto this which may not be auoided As Minors haue curators and gouernors so also mad persons and prodigall persons are appointed to haue gouernors by law for that they can no more gouerne their owne state then the others can Prodigall persons are they that know no time nor end of spending but riot or lauish out their goods without all discretion Vnder the fift Section which compriseth in it nine bookes are conteyned last Wils and Testaments and who they be that can make the same and how many kinds thereof there be solemne or militarie and they eyther put in writing or else Nuncupatiue what is an vniust or void Will what is to be thought of those things which are found eyther to be blotted out or interlyned in a Will how Heires or Executors are to be instituted or substituted in wills and vnder what conditions they may be eyther instituted or substituted in the same What time an heire hath to deliberat after the Testators death before he proue the Will what is a military testament what priuiledges it hath how the inheritance may be eyther got or lost how Testaments are to be opened published and writ out what mens Testaments are not to be opened and published Of the punishment of such which a will being extant séeke by administration or some other like meanes to possesse the goods and of those which either forbid or compell any man to make a Will Of the power or right of Codicils of Legacies and bequests as what things may be bequeathed and what not to whom any thing may be bequeathed and of the signification of the words and things which doe appertaine vnto Legacies of yéerely and monethly legacies what time they be due in the beginning of the yeere or in the end which of them be pure and which conditionall Of the vse profit and benefit of any thing bequeathed of dwelling and workes of seruants bequeathed of Dowry bequeathed and what profit the Legatorie hath thereby Of choise or election bequeathed Of wheat wine oyle bequeathed and what is contained vnder euery of them Of ground furnished bequeathed and the instruments thereto belonging and what is to be vnderstood by that bequest Of store bequeathed in Latin called Penus what is comprised vnder that word of houshold stuffe bequeathed of education bringing vp bequeathed of gold siluer womens attire ornaments and such like bequeathed and what is to be vnderstood by euery of them how Legacies may be taken awaie Of thinges that are doubtfull in a Will and how they are to be vnderstood Of those things that are left for punishment sake in a will whether they be auaylable or otherwise Of those things which being bequeathed in a Will are counted notwithstanding as not bequeathed Of those things that are taken away from the Legatories in the will as vnworthy of them Of conditions demonstrations causes what force they haue and how they prouaile in a Will Of the Law Folcidia what it is and how men thereby are restrained for bequeathing any more then the thrée parts of their goods so that a fourth part thereof should still remainewith the heire if any man had receiued in Legacie more then he might by the law Folcidia that he should put in band to restore that if any vnknowen debt after should appeare so the same were true debt at what day a Legacie becomes due that is streight from the death of the Testator vnlesse it be left to be paied vpon a certaine or vncertain day or vnder a condition and that the heire enter into band to pay the legacie when the day comes or the condition happen and if he refuse to do it then the legatorie to be put in possession therof vntill the day or condition happen The sixt part spreading it selfe ouer seauen Bookes handleth matters of possession of goods or administration thereof not growing out of the Ciuill Law which only makes heires and giueth right of succession but out of the Pretorian Law or Law of conscience which in equitie calleth sundry to the succession of other mens goods by administration where there is no Will and in some cases where there is a Will as where the will is concealed or the Erecutor renounceth the will but if the will once appeare then the administration forthwith ceaseth In cases where Administrations are to be graunted the children of the deceased haue libertie to take it within a yeare after the death of the deceased and if they be further off of kind then they haue onely a hundred dayes
man more than for 30. yeares or 3. liues vnlesse eyther the houses be so ruynated that they cannot be repayred without great charges of the Church or other religious houses or that it be ouercharged with any debts or dueties belonging to the Exchequer and thereby there commeth small reuenue to the Church or Religious place thereout in euery of which cases it is lawfull to let out the same for euer reseruing a yearely competent rent other acknowledgements of other souerainties therein That the holie vessels of the Church be not sold away vnlesse it be for the ransoming of Prisoners or that the Church be in debt in which case if they haue more holy vessels than are necessary for the seruice of the Church they may sell those which are superfluous to any other Church that néedeth them or otherwise dispose of them at their pleasure for the benefit of the Church or other holy place whose they are Where Vsurie in processe of time doth double the principall there Vsurie for the time to come doth cease and those particuler payments which afterwards do follow are reckoned in the principall What kind of men are to be chosen Bishops such as are sound in faith of honest life conuersation and are learned that such as choose them sweare before the choice they shall neyther choose any for any reward promise friendship or any other sinister cause whatsoeuer but for his worthynesse and good parts only That none be ordeined by Symonie and if there be that both the giuer taker and mediator thereof be punished according to the Ecclesiasticall Lawes and they all made vnworthie to hold or inioy any Ecclesiasticall liuing hereafter That if any at the time of any Bishops election obiect any thing against him that is to be elected the election be staid till proofe be made of that which is obiected by the aduersarie against the partie elected so that he prooue the same within 3. Moneths and if any procéeding be to the consecration of of the same Bishop in the meane time it is void That the Bishop after he is ordeyned may with out any danger of Law giue or consecrate his goods to the vse of the Church where he is made Bishop and that he may giue such fées as are due to the electors by Law or custome That Clerks be not compelled to vndergoe personall functions and seruices of the common wealth and that they busie not themselues in seculer affaires so thereby be drawen from theyr spirituall function That Bishops for no matter or cause be drawen before a temporall Iudge without the Kings speciall commaundement and if any Iudge presume to cal any without such speciall warrant the same is to loose his office and to be banished therefore That no Bishop absent himselfe from his Dioces without vrgent occasion or that he be sent for by the Prince and if any doe absent himselfe aboue one yeare that he shall lack the profit of his Bishopricke and be deposed from the same if he retorne not againe within a competent time appointed for the same What manner of men are to be made Clerks such as are learned are 〈◊〉 good Religion of honest life conuersation and are frée from suspition of incontinency that no Minister be lesse then 35. yeares of age and that no Deacon or Subdeacon be vnder 25. that all Clerks and Ministers be ordeyned fréely If any build a Church and indow the same that he may present a Clerk thereto so that he be worthy to be admitted therto but if he present an vnworthy man then it appertaineth to the Bishop to place a worthy man therein If any Clerke be conuicted to haue sworne falsely he is to be depriued his office and further to be punished at the discretion of the Bishop That Clerks be conuented before their owne Bishops and if the parties litigant stand to the B. order the Ciuill Iudge shal put it in execution but if they agrée not vpon the iudgement then the Ciuill Iudge is to examine it eyther to confirme or infirme the B. order if he confirme it then the order to stand if not then the party grieued to appeal If the cause be criminall and the Bishop find the party guiltie then the Bishop is to degrade him and after to giue him ouer to the seculer power the like course is to be held if the cause be first examined before the temporall Iudge and the partie found guiltie for then he shall be sent to the Bishop to be depriued and after againe shall be deliuered to the seculer powers to be punished That Bishops be conuented before their Metropolitans That such as in Seruice time do abuse or iniure the Bishop or any Clerk in the Church being at diuine Seruice be whipt and sent into banishment But if they trouble thereby the diuine Seruice it selfe they are to dye the death for the same That Lay men are not to say or celebrate diuine Seruice without the presence of the Minister and other Clerkes thereto required That such as goe to Law sweare in the beginning of the suit that they haue neyther promised or will giue oght to the Iudge and that vsuall fées be taken by the Aduocates Counsellers Procters or Attournies if any man take more than his ordinary fées he shall be put from his place of practise and forfeit the foure double of that he hath taken That the 4. generall Councels be holden as a Law and that which is decréed in them That the B. of Rome hath the first place of sitting in all assemblies and then the B. of Constantinople That all Clergie mens possessions be discharged from all ordinary and extraordinary payments sauing from the repairing of Bridges and High wayes where the said possessions do lye That no man buyld a Church or holy place without the leaue of the B. and before the Bishop there say Seruice and set vp the signe of the Crosse That no man in his owne house suffer Seruice to be said but by a Minister allowed by the Bishop vnder paine of confiscating of the house if it be the Lord of the house that presumeth to doe it or banishment if it be done by the tenant If any bequeath any thing to God it is to be paied to the Church where the Testator dwelled If any deuise by his last Will a Chappell or Hospitall to be made the Bishop is to compell the Executors to performe it within fiue yeares after the decease of the Testator and if the Testator name any gouernor or poore thereto they are to be admitted vnlesse the Bishop shall find them vnfit for the roome That the Bishop sée such Legacies performed as either are giuen for the redemption of Prisoners or for other godly vses That Masters of Hospitals make an accompt of their charge in such sort as Tutors doe That such as lust against nature and so become brutish receiue condigne punishment worthy their wickednesse That such as
presumed to kéep company with an other her husband yet being aliue But if they found it otherwise then they should pronounce her the said Agatha to be legitimate All which was done after the death of the said Raph and Aneline as the Decretall it selfe shewes Neyther was there any authoritie that opposed it selfe against that procéeding but held it to be good and lawfull though it were in tearmes of speciall Bastardy for then that which they now call speciall Bastardy was not borne Besides hereby it appeareth that the Ordinaries then did not only procéed in cases of Bastardy incidently that is when a suit was before begun in the Common Law vpon a triall of inheritance that by writ from the Temporall Courts but euen originally that to prepare way vnto inheritance or any other good that was like to accrue vnto a man by succession or to auoyd any inconuenience that might keep him from promotion as may appeare by this practize following Priests in the beginning of the Raigne of Henry the 3. Constitut Othâ—n innotuit de vxovatiâ— Ã Beneficijs amouendis yet married secretly their Children were counted capable of all inheritance and other benefits that might grow vnto them by lawfull Marriage so that they were able to proue that their parents were lawfully married together by witnesses or instruments which manie Children did eyther vpon hope of some preferment that by succession or otherwise was like to come vnto them or to auoid some inconuenience that otherwise might light vpon them for the want of that proofe some their parents yet liuing others their parents being dead and the procéedings before the Ordinarie was holden good to all intents purposes euen in the Common Law for otherwise they would not haue so frequented it for as yet there was made no positiue Law against Marriages of Priests or Ministers but the Church of Rome then plotting against it for that by that they pretended the cure of Soules was neglected the substance of the Church wasted and dissipated did by Otho then Legate a Latere to Gregory the 9. order by a Constitution that all such Ministers as were married should be expelled from their Benefices that their Wiues Children should be excluded from all such liuelyhood as the Fathers had got during the time of the Marriage either by themselues or by any middle person that the same should become due vnto the Church wherein they did reséed and that their children from that time forth should be disabled to inioy holy orders vnlesse they were otherwise fauorably dispenced withall which Constitution although it wrought to that effect to barre Priests for that time of their Marriage vntill the light of the Gospell burst out and shewed that that doctrine was erronious yet to all other effects the procéeding in the case of Bastardie stood good as a thing due to be done by holy Church And therefore Linwod comming long after in his Catalogue that he maketh of Ecclesiasticall causes reciteth Legitimation for one among the rest for that in those daies there was no dispute or practise to the contrarie And thus â—ar as concerning those things wherein the Ecclesiasticall Law is hindered by the Temporall in their proceedings contrarie to Law Statute and custome aunciently obserued which was the third part of my generall diuision Now it followeth that I shew wherin the Ecclesiastical law may be relieued so both the laws know their own bounds and not one to ouerbeare the other as they doe at this day to the great veration of the subiect and the intollerable confusion of them both which is the last part of this Treatise The meanes therefore to relieue the profession of the Ciuile Law are two The first is by the restoring of those things which haue bin powerfully by the Common Law taken from them the bringing of them back againe vnto their old and wonted course The other is by allowing them the practise of such things as are grieuances in the Common wealth and fit to be reformed by some court but yet are by no home-Law prouided for The first of these stands in two things whereof the one is the right interpretation of those Lawes statutes and customes which are written and deuised in the behalfe of the Ecclesiasticall Law The other consisteth in the correcting and supplying of such Lawes and Statutes that are either superfluous or defectiue in the penning made in the behalfe as it is pretended of the Ecclesiasticall profession but yet by reason of the vnperfect penning thereof are construed for the most part against them The right interpretation of the Lawes Statutes and Customes pertaining to the practise standeth as is pretended in the Iudges mouth who notwithstanding hath that authoritie from the Soueraigne and that not to iudge according as him best liketh but according as the right of the cause doth require The supply or reforming of that which is ouerplus or defectiue is in the Parliament so notwithstanding as that the Prince euermore breatheth life into that which is done Lawes Statuts or Customes are then best interpreted whenas the verie plaine and naturall sence of them is so sought after and no forraine or strained exposition is mixt with them for that turneth Iustice into wormewood and Iudgement into gall then that the Iudge be noÌ„t to subtill in his interpretation but follow such exposition of the Laws as men of former age haue vsed to make if they be not plainly absurd and erronious for oft shifting of interpretations bréedeth great variance in mens states among such as haue busie heads much discrediteth the Law it selfe as though there were no certainty in it with which although the sage Iudges of our time cannot bee charged for oght that I know yet I cannot tell how men much complaine that lawes are far otherwise construed in these daies than they were in former ages which as it is an ordinarie complaint in the Temporall Courts so it is not without cause much lamented at in the spirituall Courts where the interpretation vpon the thrée Statutes of Tiths made by King Henry the eight and Edward his son among sundry other inconstancies of other Lawes hath such great varietie of sence and vnderstanding in sundry points thereof as that if the makers thereof were now aliue and the first expositors therof sate in place of Iudgement againe the Statutes being measured by the interpretation they now make of them would hardly acknowledge them either to bee the Statuts that they made or the other did after expound and declare for euery of these Statutes and the sence that was giuen of them was wholy for the benefit of the Church according to the tenor thereof but as they now receiue explication they are not onely not beneficiall vnto the Church but the greatest hynderance to the same that may be for the words are made to iar with the sence and the sence with the words neither is there kept any right