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
the Code THe first Booke of the Code treateth of Religion and the Rites and Ceremonies thereto belonging whereof I said there was no speciall Tractate in the Digest saving that it devideth the publick right into that which concernes the Church and Church-men and the Magistrates of the Common-wealth prosecuting the later branch thereof onely and omitting the first because out of that Heathenish Religion which was used in those ancient Lawyers dayes and those superstitious Rites whereof their Bookes were full nothing could be taken that might serve for our Religion whereupon he instituted a new discourse thereof in the Code beginning first with the blessed Trinitie one in essence and three in person wherein he sets downe a briefe summe of our Christian faith agreeable to the doctrine of the Prophets and Apostles and the foure first generall Counsels the Nicene Constantinopolitan Ephesine Calcedon forbidding any man publickly to dispute or strive thereabout taking occasion upon the Nestorian heresie which not long before had sprung up and had mightily infected the Church which Justinian by this confession of Faith so published to the whole world and a penall Edict joyned thereunto hoped to represse After hee hath set downe a full and sound confession of the Christian faith conformable to the Primitive Church next hee addeth a title of the holy Church it selfe and of her priviledges which either concerne Ecclesiasticall mens persons themselves or their state and substance or the actions one Ecclesiasticall man had against an other or with or against Lay persons where also he prosecuteth the degrees of Priests or Ministers their offices orders and how the same are to be come by that is without bribes or Simonie or other worldly respect save the worth of the person onely and the rights of holy places Priests in the Law are called from the Latine Sacerdotes either because their office was Deo saera dare to sacrifice to God or else because they were consecrated and as it were severed from the rest of the people and given up to God they were also called Elders answerable to the Greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 either for that they were so in age * In Authent de sanct Episcop § Presbyterum Collat. 9. the Law having provided that no man should be promoted to the dignitie of a Priest till hee were 35 years old or else because they ought to be such in manners and carefull carriage of themselves Amongst Priests or Ministers Bishops have the first place who are as it were the †〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Overseers and Superintendents of the rest so called of their watchfulnesse care labour and faithfulnesse in teaching the people and doing other duties which they owe unto the Church The lowest degrees of men in the Ecclesiastical Hierarchy were the Clerkes as the word Clericus is restrein'd to a narrower acception For in the generall it is most properly applyed to all degrees of the Clergie and is a terme contradistinct to the Laitie and they are called Clergie from the Greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quia de sorte Domini sunt vel quia Dominus sors est part Clericornm either because God is their portion and lot or because they are his as Papias hath observed To Bishops Priests and other of that ranke did appertain the care of Hospitals whereof some were for Orphans some for Infants some for impotent and diseased persons some for poore people some for strangers and other like miserable persons and therefore together with the title of Bishops and Clerks is joyned the title of Hospitals or Almes-houses In place next after the Bishops themselves comes their power and audience for albeit the chiefest office of a Bishop is to instruct the people in the doctrine of the Word and in good example of life yet forasmuch as all will not be obedient unto the Word neither brought by the persuasion thereof to good nurture and to be kept in order and the eminencie of the degree wherein the Bishops are placed is not sufficient to keepe the people in obedience without some power and jurisdiction and because the Church it selfe is the mother and maintainer of Justice therefore there is by the Emperour himselfe and his predecessours as many as professed Christianity certain peculiar jurisdictions Ecclesiasticall assigned to the Bishops more worthy than the Civile over persons and causes Ecclesiasticall such as touch the Soule and Conscience or doe appertein to any charitable or godly uses and over the Laitie so farre forth as either the Laitie themselves have beene content to submit themselves unto their government that is so farre as either it concernes their Soules health or the outward government of the Church in things decent or comely or that it concernes poore and miserable persons such as widowes orphans captives and such other like helplesse people are or where the Civile Magistrate cannot be come by or doth voluntarily delay judgement in all which anciently a Bishop was to performe double faith and sanctity first of an uncorrupt Judge and then of a holy Bishop But in many of these matters in these dayes the Laitie will not suffer themselves to be controll'd and therefore hath taken away most of these dealings from them yea even in charitable causes Immediately followeth a title of Hereticks Manichees Samaritans Anabaptists Apostataes abusers of the Crosse of Christ Jewes and worshippers of the hoast of heaven Pagans and of their Temples and Sacrifices whom the Bishop is not onely to confute by learning but also to suppresse by authoritie for he hath not the spirituall Sword in vaine The Hereticks Jewes and Pagans shall not have Christian men and women to be their servants that such as flie to the Church for Sanctuarie or claime the ayde thereof shall not be drawne from thence unlesse the offence be haynous and done of a pretensed and purposed malice in which case no Immunity is to be allowed them but wicked people are to be punished according to their desert agreeable to the word of God it selfe which would not have his Altar to be a refuge unto the wicked And so farre of that part of publick right which appertaineth to the Priests or Ministers and their Function which was omitted in the Digest but prosecuted in the Code Now it followeth that with like brevity I run over the three last Bookes of the Code which themselves were rather shadowed in the Digest in the title of the right of the Exchequer than in any just proportion handled SECT 3. The Argument of the 10. Booke of the Code THe first therefore of them setteth out what is the right of the Exchequer and in what things it standeth as in goods excheted because there is no heire unto them or that they are forfeited by any offence worthy death or otherwise How such as are in debt to the Exchequer and their suerties are to be sued Of the right of those things which the Exchequer sels by outcry where he that offereth most
holy place Further it provideth that the name of the Prince for the time being be put in all instruments and the day and yeare when the instrument was made That the Oath of the deceased as concerning the quantitie of his goods so farre as it toucheth the division of the same among his children be holden for good but that it be in no sort prejudiciall to the creditors Of women tumblers and such other of like sort which with the feats of their body maintaine themselves that no oath or suertie be taken of them that will not leave that kind of life since such oath is against good manners and is of no value in Law That such gifts as are given by private men to their Prince need no record but are good without enrolling of them and in like sort such things as are given by the Princes to private men That no person thing or gold of an other man be arested for an other mans debt which they now call reprisals and that he which is hurt by such reprisals shall recover the foure double of the damages that he hath suffered thereby and that one man be not beaten or stricken for another That he that cals a man into law out of his Territorie or Province where he dwelleth shall enter caution if he obteine not in the sute against him hee shall pay him so much as the Judge of the Court shall condemne him in And that he who hath given his oath in Judgement shall pay the whole costs of the sute but after shall be admitted to prosecute the same if he will so that he put in suerties to performe it That such women as are unindowed shall have the fourth part of their husbands substance after his death and in like sort the man in the womans if the man or woman that surviveth be poore That Churches or Religious persons may change grounds one with an other for that one priviledged persons right ceaseth against an other that is in like sort priviledged That such changes of Mannors Lands Tenements and Hereditaments as are made by Church-men to the Prince be not fained matters and so by the Prince come to other mens hands who have set on the Prince to make this change and that the change be made to the Princes house onely and if the Prince after convey or confer the same upon any private man it shall be lawfull for the Church to reenter upon the same again and to repossesse it as in her former right That in greater Churches Clerks may pay something for their first admittance but in lesser Churches it is not lawfull That such as build found or endow Churches which must goe before the rest doe the same by the authoritie of the Bishop and that such as are called Patrons may present their Clerks unto the Bishop but that they cannot make or ordaine Clerks therein themselves That the sacred mysteries or ministeries be not done in private houses but bee celebrated in publick places lest thereby things be done contrary to the Catholick and Apostolick faith unlesse they call to the celebrating of the same such Clerks of whose faith conformitie there is no doubt made or those who are deputed thereto by the good will of the Bishop But places to pray in every man may have in his owne house if any thing be done to the contrary the house wherein these things are done shall be confiscated and themselves shall be punished at the discretion of the Prince That neither such as be dead nor the Corse or Funerall of them be injured by the creditors but that they be buried in peace That womens Joyntures be not sold or made away no not even with their owne consent In what place number forme maner and order the Princes Councell is to sit and come together That hee that is convented in judgement if hee wilfully absent himselfe may be condemned after issue is joyned That no man build a Chappell or Oratorie in his house without the leave of the Bishop and before hee consecrate the place by prayer and set up the Crosse there and make Procession in the place and that before he build it he allot out lands necessarie for the maintenance of the same and those that shall attend on Gods service in the place and that Bishops be not non-residents in their Churches That all obey the Princes Judges whether the cause bee Civile or Criminall they judge in and that the causes be examined before them without respect of persons and in what sort the Proces is to be framed against such as be present and how against those that be absent SECT 7. What is the matter of the sixth Collation THe sixth Collation sheweth by what meanes children illegitimate may be made legitimate that is either by the Princes dispensation or by the fathers Testament or by making instruments of marriage betweene the Mother and Father of the children so that the Mother die not before the perfecting of them or that shee live riotousâ—y with other men and so make her selfe unworthy to be a wife That Noble personages marrie not without instruments of Dowrie and such other solemnities as are usuall in this behalfe that is that they professe the same before the Bishop or minister of the place and three or foure witnesses at the least and that a remembrance thereof be left in writing and kept with the Monuments of the Church but that it shall not be needfull for meaner persons to observe the former solemnities That such as were indebted to the Testator or they to whom the Testator was indebted bee not left Tutors or Guardians to their children that if any such be appointed a Tutor a Curator be joyned to him to have an oversight of his dealing that Tutors or Curators are not bound by Law to let out the Minors money but if they doe the interest shall be the Minors and the Tutor shall have every year two moneths to finde out sufficient men to whom he may let the money out to hyer for that it is let out at his perill that if the Minors state be great so that there will be a yearely profit above his finding the Tutor shall lay up the residue for a stock against he comes to age or buy land therewith if he can finde out a good bargaine and a sure title but if the childes portion be small so that it will not find him then the Tutor or Curatot shall dispose of the Minors state as hee would dispose of his owne to which also hee is bound by oath How such instruments as are inrolled before Judges concerning matters of borrowing and lending and such like may have credit how men may safely bargain either with writing or without writing if themselves be ignorant men and of the comparison of Letters and what credit there is to be given to an instrument when the writings and witnesses doe varie among themselves Of unchaste people and such as riot against nature whose punishment
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
or forced to forbeare for want of Characters As the Bishop was to be look't after by those that would come into a Religious House so also by those that would goe out So it seemeth by the Law of Alfred 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Nunnan 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 If any leade a Nanne out of a Monasterie without the Kings leave or the Bishops hee shall pay 120 Shillings In the filling of Appropriations which were made over to the Religious Houses the Law saith that the Bishop had this power That he could binde the Proprietaries to set out for the Vicar Incumbent such a Convenable Portion of the Incomes as the Bishop in his judgement should be pleased to allot See Alexand. 3. to the * Bishop of Worcester De Prab dig C. De Monach. And there be that are well enough perswaded that the B. even now also ought in this Right to be acknowledged and the ground is for that it may be likely to stand without injurie to the Statute of Dissolution For it seemeth by the 27. of H. 8. c. 28. that these Lands are to be holden in as large and ample manner as the Proprietaries did then hold them or ought to have done And an other Clause of the same Statute Saveth to every Person and Persons and bodies politique c. other than Abbots c. all such right title interest c. as they or any of them hath ought or might have had c. But the consideration of this I restore to him from whom I had it The late learned Civilian in the Poore Vicars Plea where the Reader who desireth more of it may be further satisfied Now it is to bee observed how farre forth the Patron was to depend upon the Bishop for the filling of any other Church or Oratorie Most proper to this purpose is the Emperours Novell which was decreed litle lesse then eleven hundred yeares past about the latter end of the 5 Centurie 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is If any man shall erect an Oratorie and his desire be to present a Clerke thereunto by himselfe or his heires if they furnish the Clerke with a Competencie and nominate to the Bishop such as are worthy they may be ordain'd But if those who are intimated by them be rejected by the Canons as unworthy of the Ministrie then let it be the care of the most Reverent Diocesan of the place to present such as in his discretion he shall conceive better of That we may the more certainly know what the Emperours minde is it must be considered out of Panormitan what is the meaning and originall of the Patrons Right which by the Canon is called Ius Patronatus and by the Common Law Advouson The Abbot out of the Law saith that this is Ius honorificum onerosum utile alicus competens in Ecclesia pro eo quod Diocesani consensu Ecclesiam fundavit construxit veldotavit ipse vel is à quo causam habuit Abb. in Rubric He therefore that founded a Church that is fundum dedit gave a piece of ground De Ier. Pat. C. Nobu He also that built a Church upon it 16. q. 7. c. Monasterium Or lastly he that endowed the Church built C. Piae Mentesibid was thenceforth qualified with this Right of Patronage But all this while it is especially to be noted that all this was done Consensu Dioesanâ— which seemeth to have beene so requisite by that of Clement C. Nobis De Iur. Patron Si quis Ecclesiam cum assensu Dioecesanâ— construxit ex eo lus Patronatus acquirit that if Ex eo should be referr'd to assensu nothing makes a Patron but the Will of the Diocesan And it is to bee understood that when a man dispendeth of his temporall estate towards the Founding Erecting or Endowing of a Church whatsoever shall be so conferred after consecration is actually delivered up and made over to God himselfe therefore it must needs be that from henceforth these things cannot properly belong either to the Bishop or the Patron for the Emperour saith Quod Divini juris est id nullius est in bonis Instit de Rerum Divisione §. Nullius rate that neither of them should presse too much the one upon the other and therefore in the beginning the usuall rate that they set downe betweene the beneficed man and the Religious person was the one halfe of the Benefice for that it was not thought that the Pope would charge a Church above that rate But after by the covetousnesse of Monkes and Friers themselves and the remisnesse of Bishops who had the managing of this businesse under the Apostolique See the Incumbents part came to so small a portion that Vrban the fifth by Othobon his Legate here in England in the yeare of Salvation 1262. was faine to make a Legantine whereby he forbad all Bishops of this Land to appropriate any more Churches to any Monasterie or other religious houses but in cases onely where the persons or places to whom they were appropriated were so poore as that otherwise they were not able to sustaine themselves or that the cause were so just that it might be taken rather to be a worke of charitie than any inforcement against Law and that beside with this provisâ— as that if the new proprietaries within sixe moneths next after should not set out a competent portion for the Minister of the fruits of the Benefice themselves should assigne out a sufficience thereout according to the quantitie thereof Which constitution because it tooke not the effect that was hoped there were two Statutes Only the dispensation of those things must be referr'd to Men And to that purpose who of all men could be more fit then the Bishop It seemeth therefore that the right of Presentation may be originally in the Diocesan and wee shall finde it hath beene so by a certaine passage recorded in the life of Bishop Vlrick where the Author faith That when any would build a Church in his Territorie the Bishop freely consented both to the Erection and Consecration Si confestim ille consecrata Ecclesia legitimam dotem in terrâ—s mancip 〈…〉 s in manum ejus celsitudinis dare non differret c. which is answerable to what was before said concerning the dowrie of a Church It followeth in the Author Consecrationeque per act à doteque contradita comprobato illic Prâ—sbytero altaris Procurationem commendarit Ecclesia Advocationem firmiter legitimo hareds panno imposito commendavit that the Consecration being ended and the Endowment delivered up the care of the Altar was committed to the Priest allowed and the Advouson firmely conveighed to the lawfull heire by the putting on of a Robe Author vita Vdalrici C. 7. p. 52. edit August Vindel. 1595. It is now time to consider how farre forth the Bishop departed with this Right to the Lay Patron and for what causes Wee have said that the Bishops Right was not to the things
matter of the ninth Collation THe ninth and last Collation conteineth matter of succession in goods that as long as there be any Descendent either Male or Female so long neither any Ascendent or any Collaterall can succeed and that if there be no Descendent then the Ascendent be preferred before the Collateral unles they be brethren or sisters of the whole blood who are to succeed together with the Ascendent but in Ascendents those are first called which are in the next degree to the deceased then after those which are in a more remote degree that in Collaterals all be equally admitted which are in the same degree and of the same Parents whether they be male or female That the lands of any Church Hospitall or other like Religious place be not sold aliened or changed unlesse it be to the Princes house or to or with an other like Religious place and that in equall goodnesse and quantitie or that it be for the redemption of Prisoners and that they be not let out to any private man more than for 30. years or 3. lives unlesse either the houses be so ruinated that they cannot be repaired without great charges of the Church or other religious houses or that it be overcharged with any debt or duties belonging to the Exchequer and thereby there commeth small revenue to the Church or Religious place there-out in every of which cases it is lawfull to let out the same for ever reserving a yearly competent rent and other acknowledgement of other soveraignty therein That the holy vessels of the Church be not sold away unlesse it be for the ransoming of Prisoners or that the Church be in debt in which case if they have more holy vessels than are necessary for the service of the Church they may sell those which are superfluous to any other Church that needeth them or otherwise dispose of them at their pleasure for the benefit of the Church or other holy place whose they are Where Usurie in processe of time doth double the principall there Usurie for the time to come doth cease and those particular payments which afterwards doe follow are reckoned in the principall What kinde of men are to be chosen Bishops such as are sound in faith of honest life and conversation and are learned that such as chuse them sweare before the choyce they shall neither chuse any for any reward promise friendship or any other sinister cause whatsoever but for his worthinesse and good parts onely That none be ordeined by Symonie and if there be that both the giver taker and mediator thereof be punished according to the Ecclesiasticall Lawes and they all made unworthy to hold or enjoy any Ecclesiasticall living hereafter That if any at the time of any Bishops election object any thing against him that is to be elected the election be staid till proofe be made of that which is objected by the adversarie against the partie elected so that he prove the same within three Moneths and if any proceeding be to the consecration of the same Bishop in the meane time it is void That the Bishop after he is ordeined may with out any danger of Law give or consecrate his goods to the use of the Church where he is made Bishop and that he may give such fees as are due to the electors by law or custome That Clerks be not compelled to undergoe personall functions and services of the common-wealth and that they busie not themselves in secular affaires and so thereby be drawn from their spirituall function That Bishops for no matter or cause be drawne before a temporall Judge without the Kings speciall commandement and if any Judge presume to call any without such speciall warrant the same is to lose his office and to be banished therefore That no Bishop absent himselfe from his Dioces without urgent occasion or that he be sent for by the Prince and if any doe absent himselfe above one yeare that he shall lack the profit of his Bishoprick and be deposed from the same if he returne not againe within a competent time appointed for the same What maner of men are to be made Clerks such as are learned and are of good Religion of honest life and conversation and are free from suspition of incontinencie that no Minister be lesse than 35. yeares of age and that no Deacon or Subdeacon be under 25. that all Clerks and Ministers be ordeined freely If any build a Church and indow the same that he may present a Clerk thereto so that he be worthy to be admitted thereto but if he present an unworthy man then it apperteineth to the Bishop to place a worthy man therein If any Clerke be convicted to have sworne falsely hee is to be deprived of his office and further to be punished at the discretion of the Bishop That Clerks be convented before their owne Bishops and if the parties litigant stand to the Bishops order the Civile Judge shall put it in execution but if they agree not upon the judgement then the Civile Judge is to examine it and either to confirme or infirme the Bishops order and if he confirme it then the order to stand and if not then the party grieved to appeale If the cause be criminall and the Bishop finde the party guiltie then the Bishop is to degrade him and after to give him over to the secular power the like course is to be held if the cause be first examined before the temporall Judge and the partie found guiltie for then hee shall be sent to the Bishop to be deprived and after againe shall be delivered to the secular powers to be punished That Bishops be convented before their Metropolitans That such as in Service time do abuse or injure the Bishop Si vero etiam Litaniam concusserit capitale periculum sustinebit De Sanctissim Episcop Deo § Si quis cum sacra minist or any Cleark in the Church being at divine service be whipt and sent into banishment But if they trouble thereby the divine Service it selfe they are to dye the death for the same That Lay men are not to say or celebrate divine Service without the presence of the Minister and other Clerkes thereto required That such as goe to Law sweare in the beginning of the suit that they haue neither promised or will giue ought to the Judge and that usuall fees be taken by the Advocates Counsellours Procters or Attournies and if any man take more than his ordinary fees he shall be put from his place of practise and forfeit the foure double of that he hath taken That the 4. generall Councels be holden as a Law and that which is decreed in them That the Bishop of Rome hath the first place of sitting in all assemblies and then the Bishop of Constantinople That all Clergy mens possessions be discharged from all ordinary and extraordinary payments saving from the repairing of Bridges and High wayes where the said possessions doe
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
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
passage will I note which of them have beene most chiefly oppugned and as occasion shall fall out speake of them PART III. CHAP. I. SECT 1. How the Jurisdiction which is of Civile and Ecclesiasticall cognisance is impeached by the Common Law of this Land and first of the impeachment thereof by the Statute of Praemunire facias ANd thus much as concerning those parts of the Ecclesiasticall Law which are here in use with us Now it followeth to shew wherby the exercise of that Jurisdiction which is granted to bee of the Civile and Ecclesiasticall cognisance is defeated and impeached by the Common Law of this Land which is the third part of this Division The impeachment therefore is by one of these meanes by Praemunire by Prohibition by Injunction by Supersedeas by Indicavit or Quare impedit but because the foure last are nothing so frequent nor so harmfull as the others and that this Booke would grow into a huge volume if I should prosecute them all I will onely treat of the two first and put over the rest unto some better opportunitie A Praemunire therefore is a writ awarded out of the Kings What is a Praemunire Bench against one who hath procured out any Bull or like proces of the Pope from Rome or else-where for any Ecclesiasticall place or preferment within this Realme or doth sue in any forreine Ecclesiasticall Court to defeat or impeach any Judgement given in the Kings Court whereby the body of the offender is to bee imprisoned during the Kings pleasure his goods forfeited and his lands seized into the Kings hand so long as the offender liveth This writ was much in use during the time the Bishop of Rome's authoritie was in credit in this land and very necessarie it was it should be so for being then two like principall authorities acknowledged within this Land the Spirituall in the Pope and the Temporall in the King the Spirituall 25. Ed. 2. 27. Ed. 3 c. 1. 38 Ed. 3. c 1. 2. 7. Rich. 2. c. 12. 13. Rich 2. c. 2. 2. H. 4 cap. 3. grew on so fast on the Temporall that it was to be feared had not * Neverthelesse even out of these Statutes have our Professours of the Common Law wrought many dangers to the Jurisdiction Ecclesiasticall threatning the punishment conteined in the Statute Ann. 27. Edw. 3. 38. ejusdem almost to every thing that the Court Christian dealeth in pretending all things dealt with in those Courts to be the disherison of the Crowne from the which and none other fountaine all Ecclesiasticall Jurisdiction is now derived whereas in trueth Sir Thomas Smith saith very rightly and charitably that the uniting of the Supremacie Ecclesiasticall and Temporall in the King utterly voideth the use of all those Statutes Nam cessante ratione cessat lex and whatsoever is now wrought or threatned against the Jurisdiction Ecclesiasticall is but in emulation of one Court to an other and by consequent a derogation of that authority from which all Jurisdiction is now derived and the maintenance whereof was by those Princes especially purposed D. Cowel in the Interpreter these Statutes beene provided to restraine the Popes enterprises the spirituall Jurisdiction had devoured up the temporall as the temporall now on the contrary side hath almost swallowed up the spirituall But since the forreine authoritie in spirituall matters is abolished and either Jurisdiction is agnised to be setled wholly and onely in the Prince of this land sundry wise mens opinion is there can lye no Praemunire by those Statutes at this day against any man exercising any subordinate Jurisdiction under the King whether the same bee in the Kings name or in his name who hath the same immediatly from the King for that now all Jurisdiction whether it be Temporall or Ecclesiasticall is the Kings and such Ecclesiasticall Lawes as now are in force are called the Kings Ecclesiasticall Lawes and the Kings Ecclesiasticall Courts for that the King cannot have in himselfe a contrarietie of Jurisdiction fighting one against the other as it was in the case betweene himselfe and the Pope although hee may have diversitie of Jurisdiction within himselfe which for order sake and for avoyding of confusion in government hee may restraine to certaine severall kindes of causes and inflict punishment upon those that shall goe beyond the bounds or limits that are prescribed them but to take them as enimies or underminers of his state he cannot for the question here is not who is head of the cause or Jurisdiction in controversie but who is to hold plea thereof or exercise the Jurisdiction under that head the Ecclesiasticall or Temporall Judge Neither is that to move any man that the Statutes made in former times against such Provisors which vexed the King and people of this land with such unjust suits doe not only provide against such Proces as came from Rome but against all others that came else-where being like conditioned as they for that it was not the meaning of those Statutes or any of them therby to taxe the Bishops Courts or any Consistory within this land for that none of them ever used such malepert sawcinesse against the King as to call the Judgements of his Courts into question although they went farre in strayning upon those things and causes which were held to be of the Kings temporall cognisance as may appeare by the Kings Prohibition thereon framed And beside the Archbishops Bishops and other prelates of this Land in the greatest heat of all this businesse being then present in the Parliament with the rest of the Nobility disavowed the Popes insolencie toward the King in this behalfe and assured him they would and ought to stand with his Majestie against the Pope in these and all other cases touching his Crowne and Regalitie as they were bound by their allegeance so that they being not guilty of these enterprises against the King but in as great a measure troubled in their owne jurisdiction by the Pope as the King himselfe was in the right of his Crowne as may appeare out of the course of the said Statutes The word Elsewhere can in no right sence be understood of them or in their Consistories although Et le stat est in Curia Romana vel alibi le quel alibi est a entender en la Court l'Euesque issint que si hōme soit sue la pur chose que appent al Commen ley il aura Praemunire Fitzherb Nat. Bre. Tit. Praemunire facias some of late time thinking all is good service to the Realme that is done for the advancement of the Common Law and depressing of the Civile Law have so interpreted it but without ground or warrant of the Statutes themselves who wholly make provision against forreine authority and speake no word of domesticall proceedings But the same word Elsewhere is to be meant and conceived of the places of remove the Popes used in those dayes being
Christ or an Apostle all Stories would be Legends almost every discourse too strange to be true But it seemeth very convenient for the satisfaction of reasonable Creatures that these things should be so for if God did not somtimes interrupt the common course wee should dote upon the ordinarie meanes and begin to think that Nature had no supreamer cause than it selfe If the Storie of this vision should not be true wee will not say in every circumstance for wee have promised to doubt of the damnation of Charles yet I say if some thing like to this hath not been then what shall be thought of all those ancient testimonies of grave and learned men who are engaged to make this good To let passe the rest what shall we thinke of the Relation of Fauchet that a Chronologer should say Que de son temps plusi urs gens l'asseuroyent comme a yans esté presens a la visitation de ladite sepulture les Evesques des Provinces de Rheimes Rouen assemblez en un parlement tenu l'an huit 〈…〉 ns cinquante huit l'alleguerent pour exemple a Louyis ' Roy de Germanie comme histoire veritable adjoustans que Charles estoit damné That wee may know what Fauchet saith wee must observe that in the yeare 858. the Bishops that then were of Rhemes and Roan were summoned to a Councell by Lewis the third but fearing for good causes what the successe might bee they appeared not neverthelesse they wrote an Epistle to the Emperour where amongst other matters advising him to vindicate the Church they peremptorily alledged the damnation of Martel and that when he was look't for in his grave by Boniface and Fulrade he could not be found but that in stead of him there issued forth a fearfull Dragon leaving the place all black as if it had beene burn'd And that the Emperor might make no doubt they enforce the credite of the Storie with this undeniable testimonie Nos autem illos vâ—dâ—mus nempe Bonifacium Fulradum qui ad nostram usque atatem duraverunt nobis viva voce veraciter sunt testati qua audierunt viderunt The entire Epistle is extant and the preservation of it we owe to the learned Baronius in whose Annals wee may finde it Ad annum Christi 858. So much of it as concern'd the Storie of Martel was cited by Gratian 16. q. 1. post Can. 59. It is also related by Martanus Scotus ad annum Christi 764. but not to bee look't for in the printed Copies for we reade it in a manuscript of our publick Librarie which hath much more of Marian to shew than ever yet came forth for it exceedeth those that are printed by a third part and which is more to be noted by us it is constantly interposed with the Synchronismes of our owne Storie Yet it would be enquired whether Marian bee Authour of all that hee is there entituled to because at the yeare 1054. pag. 351. the manuscript saith thus Eodem anno natus est Marianus Hibernensis probabilie Scottus caâ—us studio laborchee Chronicon pracellens est de diversis libris câ—adunatum The French Historians for the most part disparage this vision for feare of Martels damnation yet Nichol Gilles in Belleforest relating the Storie concludeth it with a sober demurre Maâ—s cequ'il en est je ne scay riâ—n cest a Dien ale sâ—avoir But saith hee what to thinke of this I cannot tell God he knoweth But of Charles Martel thus farre this onely may briefly and confidently bee added That as he came improperly into the world so he went unusually out for he was borne a Bastard and died miserably notwithstanding came neere five hundred yeares after for this fact of Martellus was done about the sixe hundreth and threescore yeare after the Nativitie of our Saviour Jesus Christ but the Councell that reformed it and was holden uuder Alexander the third was not celebrated before the yeare of the Incarnation 1189. neither was the reformation thereof at that time totall nor suitable to the first institution of Tythe among Christians For neither could many wilfull and refractarious persons bee then brought to obey the Canons of the Councell in restoring any part thereof againe unto the Church although they were charged so to do under paine of * Irreligious people have alwayes beene so backward to do the Church this great right that they have oftentimes bin overtaken with the Curses both of God and Men. Severall anathemae's out of severall Synods might be urged but the most notable proceeding against this Sacriledge may be found in the Generall sentence of Execration denounced foure times every yeare Somthing to this purpose was said before Chap. 2. Sect. 1. out of an ancient Booke which I have where those Church-robbers are branded with the More and the Lasse Curs It remaineth that in this place wee declare that matter more fully out of the old English Festiuall and out of the Articles of the Generall greater Curse found in S. Pauls Church at Canterbury in the yeare 1562. according as it is related by Thomas Becon in the Reliques of Rome And first wee will observe what our Ancestours understood by these kindes of Execrations and what was their More Lesse Curse The Festivall saith that Cursing is such a vengeance-taking that it departeth a man from the blisse of Heaven from housel shrift all the Sacraments of holy Church and betaketh him to the Devill and to the paines of Hell without end The Canterbury Booke saith thus Wherefore yee Shullen vnderstand at the beginning that this word Curse is thus much to say as departing from God and all good works Of two manner of Cursing holy Church telleth the one is cleped the Lasse Curse the other is cleped the More Curse That wee clepen the lasse Curse is of this strength that every man woman that falleth therein it departeth him froe all the Sacramentes that bene in holy Church that they may none of hem receaue til they bee assoyled c. The More Curse is much worse and is of this strength for to depart a man froe God and froe all holy Church and also froe the company of all Christen folke never to be saved by the passion of Christ ne to be holpen by the Sacramentes that bene done in holy Church ne to haue part with any Christen man c. Concerning those that debarre the Church of any rights or dues whatsoever the Priest in the Festivall pronounceth thus By the authority of God the Sonne and the Holy Ghost and his glorious Mother and mayden our Lady Saint Mary and the blessed Apostles Peter and Paul and al Apostles Martyrs Confessours and Virgins and the halowes of God I denounce and shew for accursed al thoe that franches of holy Church breake or distrouble or bene against the State of holy Church or thereto assent with deed or councell And alsoe all thoe that priue holy
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
Abbates de decimis orders should acquire and get after the said generall Councell they should pay Tythes or compound for them as other men did yea though they laboured them with their owne hands or manured them at their owne charges Which consideration also moved Henry 4. King of this Realme to provide by Statute first that such of the order of Cystertians An. 2. H 4. c. 4. as had purchased Buls to be discharged of Tythes should be reduced into that state as they were before Then that no person Religious or Secular by colour of any Bulls containing any priviledges to be discharged An. 7. H. 4. ca. 6. of Dismes pertaining to any Parish Church nor put in execution should put the same in execution or should purchase the like in time to come Wherby it is very probable that few of those lands which are 31. Hen. 8. c. 13. now challenged to be free of Tythes by the Statute of the 31. of Hen. 8. are free of Tythes in deed for that they are no otherwise freed by that Statute than that they were first freed in the Religious mens hands so that if they were never freed in their hands they remaine still charged with Tythes But betweene this interruption of not paying of Tythes wrought by Innocent in the second Lateran Councell and the dissolution of Monasteries effected by Henry the viij are three hundred and thirty yeares and betweene the foresaid Statute made in the seventh yeare of Henry the fourth and the subversion of the Monasteries brought to passe by Henry the eight as hath beene before remembred are one hundred and thirty yeares In which long distance of time the one from the other it is not to bee doubted but many of those Religious Houses were built and indowed which by no possible meanes could bee partakers of those priviledges which were abolished before the time of their erection neither was there any reviving or renewing of these priviledges by any Pope of Rome or Prince in this Realme after they were thus first repealed by the Pope and Prince aforesaid for ought that I have read or heard to the contrarie So that if this matter were well understood and the ages and orders of those Religious persons from whom the clayme is made were rightly conceived it would give great light unto the Judges to discerne what lands were exempted from the payment of Tythes and what not for now many are pretended to bee exempted from Tythes which never were of any of those foure Orders and if they were yet were they not before the time of the interruption but since SECT 6. That reall compositions for Tythes are the devise of Ecclesiasticall Lawyers and are to be tried by the Ecclesinsticall Courts ANd so farre as concerning the second effect of these Priviledges Now it followeth that I speake a word or two of Compositions which are agreements betweene persons litigant whereby either partie may know their owne â—ight and not strive againe about doubtfull matters As good Lawes have growne out of ill manners so Compositions have risen out of quarrels caused by priviledges and other like exemption for matter of Tythe whereof although there bee no speciall Treatise in the Law as there is of the rest yet they are so often mentioned by the Decretals themselves as that it is not to bee doubted but that they are part of the Ecclesiasticall Law as well as the rest are and that they are the devise of the Ecclesiasticall Lawyers and not the conceit of the Common Lawyers the forme and stile of them doth well shew which savoureth wholly the manner and phrase of writing of the Ecclesiasticall men and hath no touch of the Common Law at all And if the devise bee the Ecclesiasticall mens as all Bishops Registers every where doe shew which are full of these compositions why should not also the triall be theirs that every cause might have his ending where it hath his beginning Eorum eniÌ„m est legem interpretari quorum est condere SECT 7. That the curiositie of School-men in their distinctions upon Tythes have helped forward Appropriations and Exemptions from Tythes The Opinion examined as concerning the Quotitie of Tythes whether it be Morall Ceremoniall or Judiciall ANd these are those greevances of the Church which I said the School-mens curiositie in their distinctions either invented or gave strength unto them after they were invented but invent them all I thinke they did not for that these Acts of Appropriations of benefices were somewhat more ancient than the School-men themselves are t 〈…〉 but the rest of the Priviledges they either came into the world with them or ensued anon afterthem so that I may well say they much strengthened this iniquitie For when that every man understood by their Doctrine the quotitie of Tythes or the 〈◊〉 part thereof was not precisely by Gods Law since the light of the Gospel sprang out as the day light unto the Christians who before sate in darkenesse and in the shadow of death but that it was by the institution of the Church only then began they freely to spoyle the Church of her due Tythes and to give away that to one Church that was due to an other And the reason that perswadeth the School-men to this was that after much adoe dividing the whole Law of Moses into three parts the Morall the Judiciall and the Ceremoniall they did conclude that there were three parts likewise in the Tythe the one Morall which was a necessarie maintenance for the Minister and therefore was naturall and perpetuall the other Judiciall which was the number of ten fit as they taught for that people onely and therefore was positive and remotive the last Ceremoniall and that was the mysterie contained in this Quotitie or number of Ten which being but a shadow onely was abolished with the Law it selfe whereby they did inferre the precise number of Ten being taken away by reason of the Ceremonie it selfe a competencie now onely doth remaine for the Minister out of the Tythes which opinion hath beene well confuted of late by a very learned man as his Treatise thereof doth well shew but I feare with lesse successe than the truth of the cause doth deserve for this is a point that toucheth many mens private benefite and therefore shall have no more favour than it needs must But the devise whereon the School-men did build this Thom. in quodlibet part 3. art 6. q. 6. Ceremonie is this that as all Digits under ten are unperfect and doe tend to ten as to their perfectnesse so all men save Christ alone are unperfect and have need of Christs righteousnesse to make them perfect Which Abraham well knowing paid Tythes to Melchisedech who was the figure of Christ as therein acknowledging that himselfe and all mankinde who were represented by the other nine Digits were unperfect by reason of Originall Sin dwelling in them and therefore had need to bee perfected by Christ
Idem part 22. q. 87. art 1. who was figured by the tenth number All which that we may grant to be true betweene Christ and all mankinde as it is true indeed and that ten is the perfection of the other numbers under ten for that all the rest of the Digits when they come to ten returne back againe to ten and are multiplied by the coupling of themselves with ten yet where is this proportion betweene Christ and ten in the Scripture that should make this Ceremonie which if it cannot be found any where nor any consent of the primitive Church shewed for it as I thinke it cannot be then may it with as good authoritie be rejected as it is received For albeit Thomas Aquinas himselfe was tearmed a Seraphicall Doctor that is such a one as had a sense in the understanding of the holy Scripture above all others of his age and that he did much profit the studie of Divinity with his wittie distinctions yet is not his authoritie such that it must prevaile in cases of Divinitie without the authoritie of the Scripture and the consent of the ancient Fathers of the primitive Church interpreting this peece of Scripture in that sense as he doth which would make a sweet harmony if it might be had And therefore as to my poore sense better said a learned man of our time to this point writing upon the Sabbath day Iunius in 2. c. 3. Geneseo◠in the second of Genesis which may be also proportionably understood of the tenth for that they were both before the Law in their very number and were but repeated by Moses under the Law because they had beene approved by God before the Law in the selfe same numbers and that which hee saith of the Sabbath is this that albeit it hath a Ceremoniall designation of the day that is that it doth figure unto us our perpetuall rest which we shall have in heaven after that there is a new heaven and a new earth yet there is therein two parts the one naturall the other positive as that God should have a seventh day of worship this is Naturall and therefore doth remaine because it is perpetuall but that this seventh day of the Lords worship should bee the seventh after the Creation of the world this was positive and therefore was changed by the Apostles and blessed men of the primitive Church into the seventh day after the Resurrection of our Saviour Jesus Christ which as it is verified by him in the Sabbath so may it be in like sort vouched by like reason in the tenth wherein also by like semblance there are two parts the one naturall the other positive The naturall is this that God our of all the fruits of the earth the increase of cattell that are worthy of him and fit for mans use should have a tenth both in the acknowledgement of his universall government over us and also for the provision of his ministers and therefore this remaineth in that sence immediately after the disolution of the Jews policie the good Christians of the Primitive Church as soone as they could get any outward forme of a Church peace from persecution received it in the very quotitie as a thing no lesse belonging to their Ministers than it did appertaine to the Priests Levites of the Law But that the Lord annexed these Tythes by Moses to the Priest Levites for their maintenance during the time of the dispensing of the mysteries under the Law this is positive and therefore changed by the good Christians in the Primitive Church frō the Jewes Ecclesiastiques to the Christian Ecclesiastiques Neither can it be thought that this number came frō the Judiciall part of the Law as a fit proportion to maintain one Tribe out of the revenues of the other eleven Tribes for that this number or quotitie was revealed to be Gods long before the Law and before there were any such division of Tribes among the people of Israell which then were not but were parted afterward by Moses into families according to the number of the twelve sonnes of Jacob. And therefore it is not to be presumed that the Law which came long after imprinted a forme upon that which was so long in beeing before there was any Law or Ceremony But as the Apostles or prime Christians vvhen as they did first change the day of the Sabbath by divine inspiration or otherwise from the day of the Creation to the day of the Resurrection durst not substitute any other day into the place of the first day than a seaventh for that the Lord had revealed his pleasure in many places of the Scripture as concerning that number for his day of vvorship so that no other day could be appointed for his day of worship than a seaventh So neither durst the good Christians of the Primitive Church moved no doubt with no other instinct then the other were when they translated this provision of Tythes for their ministery from the Jewish Church unto their owne Church change the number of ten into another number besides more or lesse For that God had no lesse manifested his will in sundry parts of the Scripture as concerning this number to be a number for the maintenance of his ministrie than he had declared his pleasure as concerning that other number to be a day for his honour challenging it every where in the Scripture in the very quotitie for his owne right and counting it robberie if it were at any time with-holden from him And therfore it may be well thought the School-men herein did great wrong to the Church who by their quaint distinctions brought this certaintie into an uncertaintie which is no where to be found in the Scripture Which I am more bold to speake for that I see some have trod this path before me and shewed by good demonstration that the turning of this quotitie into a competencie is a thing nothing warrantable by the word of God but that the quotitie ought still to stand as a perpetuall right due to God and his Church But hereof hitherto CHAP. V. SECT 1. That a Bishop being Lord of a manor and prime Founder of a Benefice could not in the first erection thereof by his own capacitie retaine any Tythes in his hand and passe the same after in Lay fee to his Tenant and so give cause to his Tenants of prescriptions against the Parson ANd so having passed over this whole proviso of Law Statute Priviledge Prescription and Composition I might well leave the turning of this stone any more but that yet there remaineth one Prohibition of prescription to be handled which in my fancie is worse then all therest for that it draweth away from the Parochian Church her maintenance transferreth it upon Lay and that which is worse it makes Bishops to be instruments hereof who are to be patrons and defenders of Churches and not pillers or powlers of the same And yet the authors thereof do
he that is charged with the Bastardie were borne in lawfull Matrimonie or out of Matrimonie or whether he were borne before Lib. Intrâ—c fol. 35. his Father and Mother were lawfully contracted together in Matrimony or after All which the Ordinarie makes inquirie upon by his owne Ordinarie and pastorall authoritie for that matters of Bastardy doe originally belong to the Ecclesiasticall Court and not to the Temporall And as hee findes the trueth of the matter by due examination to bee this or that so hee pronounceth for the same in his owne Consistorie and makes certificate thereupon to the Kings Court accordingly and as hee pronounceth so the Temporall Judges follow his sentence in their Judgements either for or against the Inheritance that is in question Speciall Bastardy they say is that where the Matrimony Bracton is confessed but the priority or posterioritie of the Nativity of him whose birth is in question is controversed which to my thinking if I conceive aright is no other thing than the generall bastardie transported in words but agreeing in substance matter with the other for even these things which they pretend make speciall Bastardie are parts and members of the generall Bastardie and are either confessed or inquired upon by vertue of the Kings writ in the same For first for the Matrimonie that is here mentioned it is there agnised both by the Plaintife in pleading of it and the Defendant in the answering thereto and therefore the Plaintifes plea is thus Thou art a Bastard for that thou wast borne before thy parents were lawfully contracted together in Marriage or before their Marriage was solemnized in the face of the Church To which the Defendants reply is I am no Bastard for that I was borne in lawfull Matrimony or that I was borne after that my Father and Mother were lawfully married together In both which you see there is a Marriage confessed and the question onely is of the priority or posteriority of the nativity of him that is charged withall whether it happened before or after his parents marriage which as they hold is the other member of speciall Bastardie and yet this prioritie or posterioritie of nativity by vertue of the Kings writ comes no lesse in inquirie to the Ordinarie in the case of the generall Bastardie than they make it to be traversable in the speciall Bastardie and therefore the writ to the Ordinary for generall Bastardie is conceived in this manner viz. Inqutratis utrum praedictus A. pars rea genitus vel natus Lib. Intrac fol. 35. fuit anto Matrimonium contractum inter talem Patrem suum talem Matrom suam vel post So that either they Glanvill lib. 7. cap. 15. must confesse there is no such bastardie as they make shew there is diverse from that that is tried before the Ecclesiasticall Judge or that themselves doe confound the members that should divide the same and make them one or the other as them list for both simply they cannot be unlesse they be distinguished with other notes and differences than hitherto I finde they are But to say the truth if these things be well weighed and considered speciall Bastardie is nothing else but the definition of the generall and the generall againe is nothing but the definite of the speciall for whosoever is born out of or before lawfull Matrimonie hee is a Bastard and he againe is a Bastard that is borne before or out of lawfull Matrimony so that these things to bee a Bastard and to bee borne out of lawfull Matrimony are convertible one with the other so then as it were very hard to make a divorce betweene these things that are so â—eere in nature one to the other being convertiblâ— termes one to the other so hard againe it were in policie to disjoyne these things in triall that are so neere in affinitie one to the other because they are the same in substance and nature as the other are and therefore Eodem jure conseri debent And also ne continentiae causarum dividantur 〈…〉 q. c. 2. cognorimus which is no lesse absurditie in Law than it is a grossenesse in other learning to deny a principle or generall Maxime of the profession And so farre hitherto as concerning the reasons and arguments that may be brought against this speciall Bastardie Now it resteth that I shew by ancient precedents that both these sorts of Bastardy have appertained to the Ecclesiasticall Courts onely and the first precedent is in the incident the other in the principall and the precedent is no lesse ancient than Henry the seconds time as that which happened under Alexander the third about the yeare of our Lord 1160. and the case is this A certaine man of Norwich Diocesse called R. H. had issue I. H. who had a Son called C. H. I. H. deceasing before R. H. Cap. Lâ—…or ext qui filii sunt legitimi his Father C. H. succeeded in his Grandfathers Inheritance his said Grandfather being dead but M. H. Brother to the said Grandfather pretending that the said I. H. was a Bastard draweth the said C. H. into the Temporall Court upon the Inheritance whereupon C. H. called the said M. H. into the Bishop of Norwich his Court for the triall of his nativity but the Bishop long protracting the cause C. H. appealed to the Pope who delegated the same cause to the Bishop of Excester and the Abbot of Hereford with order That if the said M. H. should not within two Moneths prove that which hee objected against C. H. that then they should intimate the same to the secular Judge before whom the inheritance was in question that he should not stay any longer upon the question of legitimation but proceed to Judgement in the cause of the inheritance Which president though it be long before the Statute of Bastardie made by Henry the 6. and so no writ went from the Temporall Court for the certificate thereof yet it shewes that the Temporall Judges in those dayes did not proceed to Judgement in the principall cause before the incident were decided by the Ordinarie and that they counted bastardy then to be of the Ecclesiasticall cognisance and that it was lawfull for him that was pretended to be a Bastard to appeale from his Ordinarie if either the Ordinarie detracted the determination thereof or were suspected of partiality And thus farre of the incident There is an other much like precedent to this in the same Kings dayes but that is in the principall for that the inheritance came not first in question but the legitimation it selfe and the case is as followeth A certain man called Ralph kept one Analine the wife of one Allin by whom he was supposed to have begot one Cap. Causam ext qui fil 〈…〉 sunt legitimi Agatha who also being married had a Sonne called Richard Ralphe going beyond the Sea left Richard and his Mother Agatha in possession of all his