al should be ended in one and the selfe same Court which would be a great ease to the subiect who to his intollerable vexation and eycessiue charges is compelled to run from Court to Court and to gather vp as it were one lim of his cause here and another there and yet happily in the end cannot make a whole and perfect body of it Beside it is a mightie disorder in a common wealth thus to iumble one Iurisdiction with another the very confusion as well of the one law as the other for as kingdomes are preserued by knowing their bounds and kéeping their lymits so also Iurisdictions are maintained and vpheld by containing themselues within the lists or banks of their authoritie Further vnlesse they will graunt there is an Ecclesiastical custome as there is a Seculer Custome and that the one is as well to be tryed in the one Court as the other is in the other they will make their owne Doctrine in the before-rehearsed Prohibition void where they certaine vs there is a Seculer Custome and if there be a Seculer custome then doubtlesse there is also an Ecclesiasticall or spirituall custome for the word Seculer is not put in that place absolutely Glos in Clem. vnâ—â—a in verbo aterna â—teâ— de summa trinit f de catholica but relatiuely and the nature of Relatiues is one to put another one to remoue another but by the Seculer custom they but the Ciuilian therfore they grant him the spirituall for of contrarie things there are contrarie reasons and contrarie effects and what that which is proposed doth worke in that which is propounded the same againe that L. Fin. § pâ—us â—â—tem de legatis 3. ibi Angel which is opposed doth worke in that which is opponed by which Rule as Temporall Lawyers are to deale in Temporall Customes and spirituall men are not to intermedle therin so also Ecclesiasticall Lawyers are to deale in Ecclesiastical causes and that temporal Lawyers are not to busie themselues thereabout And that this was the intent of the king when he first receiued the Church into his protection with all the priuiledges therof may appeare hereby that hauing vnited both the Iurisdictions in his owne person hee did not iumble them both together as now they are but kept them distinct one from the other not only in authorising the Ecclesiasticall Courts that were before but also in vsing the verie words and phrases that the Iurisdictionaries Ecclesiasticall did vse euery where in their writings euen these words whereupon men now take hold to frame Prohibitions vpon viz. according to the laudable customs vsages of the parish and places where such Tythes growe which were the words of Innocent the third in the Decretals vpon the title of Tythe long before these statuts were made or any other statuts concerning the true payment of tyths and Linwod in the same title of tithes often vseth the very selfe same words and phrases that the other doth so that if these words made no Prohibition before the statute as I think it cannot well be shewed to the contrarie neither ought they to do it now since the statute for that they are taken still in the Church businesse and not in a temporall matter whose gouernment although it be vnder one and the selfe same Prince that the Temporall state is yet is it distinct from the same as euer it hath bin since there hath bin any setled forme of Church gouernment many common 1. Corinth 5. wealth as may appear both by the example of S. Paul which neuer goeth to any temporal power to punish the incestuous person although there were sundry lawes then both in Gréeke and Latine written of these matters but doth it by the spirituall sword alone and also by that that in matters of Iar for worldly causes betwéen brother and brother he forbids such as were new Christians to go to law before 1. Corinth 6. Infidels but aduiseth them rather to appoint Iudges among themselues to decide such controuersies which albeit in those daies was ment as wel of lay Christians as of the ministers of the Gospell for that the number of them then was small and the causes of suit they had one against another were not many and might easily be ended by one and the selfe same consistorie yet when the number of the Christians increased and the Church got some rest from persecution the Iurisdiction was againe diuided and as there were Seculer Courts appointed by Princes wherin Temporal mens causes and Lay businesses were heard so there were also by the same authoritie erected Ecclesiasticall Courts and Bishops C. de episcopall audienta tâ—rtis audiences wherin either Ecclesiasticall mens causes alone or such as they had against Lay men or Lay men against them were treated of and determined So that this was no new deuise of Henry the eight or Edward his sonne that when they tooke vpon them the supremacie ouer the Church as they had before ouer the common wealth they did not mishmash both the states together and made one confused heape of them both but left them seuered as they found them only affording either of them an equall proportion of protection for that by these two parts the kings Monarchie is compleat and himselfe is the head and chiefe Gouernour of the whole and entire bodie of his Realme For this was exemplaried vnto them in all former ages since the Church and common wealth had any louing and kind cohabitation together as hath béene before remembred And therefore doe they wrong to the ashes of those kings deceased which by subtill sence and strained interpretations draw these Lawes which they intended for the benefit of the Church and Church gouernment to the ouerthrow of the same as though the Positiue Lawes of the kingdome could not stand if the Lawes of the Church continued and stood vp right Vpon the same words of the same Statute if perhaps at any time there grow any controuersie about the limits or hounds of Parishes they draw the same by like importunitie from the triall of the Ecclesiasticall Law vnto the Common Law auouching the same also to bee of the Temporall cognisance and yet Linwod who liued in the daies of Henry the fift making a Catalogue of the principall matters that in his daies belonged vnto the Ecclesiasticall Courts reckoneth the bounds of Parishes for one And very like it is it should so be for that Ecclesiasticall men first in this Kingdome made diuisions of Parishes as by our owne Cronicles it appeareth and the first practise thereof within this Realme came from Honorius the fourth Archbishop of Canterbury after Augustine who himselfe died in Registro Eccle. XpÌ„i Cant. Stow. the yere of our Lord God 693. although otherwise the thing it selfe be more auncient and discends from the councell of Saint Paul he gaue to Titus to appoint Elders in euerie Citie but that Cities and Countries againe are
Kings Ecclesiasticall Courts here within the Land 111 What is a Prohibition and how many sorts are thereof 113 Of Admirall causes and in what sort they are hindered 115 Of Actions of Trouer and how far Fictions in Law are to be admitted and how far not 116. c. Wherein last Wils and Testaments are impeached 121 Of the care that Princes of this Realme haue had for the due payment of Tythes vnto the Church and the preseruing of the cognisance thereof vnto the Ecclesiasticall Courts of this Land both before the conquest and since 124 c. That the Statutes of the xxvii and xxxii of H. the viii and the 2. of Edward the vi c. 13. intended for the true paiment of Tythe and the preseruation of the triall therof vnto the Ecclesiasticall Courts are now turned to the hinderance of them both 128. c. That customes of payment of tythes are triable onely at the Ecclesiasticall courts 131. c. That the lymits and bounds of Parishes are of the Ecclesiasticall cognisance onely 135 That the clause of treble Damages in the 13. chapter 2. Edw. 6. is to be sued in the Ecclesiasticall courts only 137. That the naming of law or Statute in a statut doth not make it to be of the Temporall cognisance if the matter therof be Ecclesiasticall 139. c. How it comes to passe that when tythes were neuer clogged with custome prescription or composition vnder the Law they are clogged with the same vnder the Gospel and the causes thereof 142 Tythes anon after the dissolution of the Iewes policie were entertained by the Christians as a naturall prouision for the Ministers of the Gospell and leased out by God vnto the Iewes for the time of their policie only 142 That Charles Martell Father of King Pippin was the first that euer toke tythes from the Church and assigned them ouer to Lay men in fee and vpon what occasion 145 That to the imitation of this fact of Martell other Princes did the like euery one in his Kingdome 145 That this fact of Martel being done about the yeare 606. stood vnreuersed vntill the Lateran councell vnder Alexander Anno 1189. and that the reformation was then but in part 146 That Ecclesiasticall Iudges admit pleas in discharge of tithes and the maner of tything contrarie to the conceit that is had of them 149 Of Priuiledges and how they came in 150 That by reason of the frequence of priuiledges Statutes of Mortmaine came in 150 Of the beginning of cloistered monks in the west Church of Christendome and that the author thereof was one Benedict a Roman about the yeare 606. 153 That from Benedict and his order flowed all the rest of the orders of Religious men 153. c. That the admiration that these Religious men did breed of themselues in the head of Princes and Popes did procure appropriations of parsonages and immunities from Tiths 153 That the ouer conceit that men had of praier aboue preaching in the church was an adiuuant cause therunto 154 Whether Appropriations came first from Princes or Popes it is questionable 155 Exemptions from tythes brought in by Pope Paschall in fauour towards all sorts of Religious men 158 The same restrained by Pope Adrian and limited to the Cystertians Hospitallers Templers and the Knights of Saint Iohn of Ierusalem onely sauing to the other the Tythes of grounds laboured with their owne hands onely 159 That Innocent the third in the third Lateran Councell 1120. restrained those foure orders from immunitie of Tythes for such grounds as they should acquire after that councel which Henry the fourth imitating prouided by two Statutes of this Land against their immunitie 159 That if this reuocation of Immunitie by Innocent the third these two Acts of Henry the fourth were wel weighed they would ouerturne many of the priuiledges chalenged by the Statut of 31. H. 8. c. 13. for exemption of Monasterie Lands from Tithes 160 That Reall compositions for Tythes are the deuise of Ecclesiasticall Lawyers and are to be tried by the Ecclesiasticall Courts 160 That the curiositie of Schoolemen in their distinctions vpon Tythes haue helped forward Appropriations and Exemptions from Tythes 161 The opinion examined as concerning the quotitie of tithes whether it be Morall Ceremoniall or Iudiciall 161. c. That a Bishop being Lord of a Manor and prime founder of a Benefice could not in the first erection thereof by his owne capacitie retaine any Tythes in his hand and passe the same after in lay-fee to his tenants and so giue cause to his tenants of prescription against the parson 165 That Bishops indowments in the beginning stood not in Tythes but in finable Lands 167 That the turning of Bishops indowments into tenthes or tythes for impropriat parsonages is vnsutable to the first institution and very dangerous 168 That it had bin a worthy worke in the first reformers of Religion if they had returned to euery parish their owne parsonage and the dislike that God may seeme to haue conceiued of that 169 That tythes are a Parochian right and how Parishes in the Christian world came first to be instituted 171 That tythes of Minerals are due 174 That tythes of Turues be due 178 That the cognisance of barren heath and wast grounds belongeth to the Ecclesiasticall courts and what euery of them are 180 That the boughes of great trees are tythable and so also are the bodies but in the case of the Statute only 185 In what cases diffamatorie words belong to the Ecclesiastical and in what to the common law 191 That the suit of bastardie aswell in the principall as in the incident belongs vnto the Ecclesiasticall Law 199 The meanes to relieue the Ecclesiasticall courts 209 The right interpretation of Lawes and Statuts 209 Wherein the three Statutes for tythes may be supplied 212 What things may bee ordered by the Ciuile Law yet not prouided for by the common Law and others of like nature to those that are expressed 215 Of the necessitie of retaining the practise of the Ciuile and Ecclesiasticall law within this Land 224. c. FINIS A VIEW OF THE Ciuile and Ecclesiasticall Law also wherein it is straighted and wherein it may be relieued BEFORE I shew how necessarie it is for his Maiestie and the Realme to maintaine the Ciuile and Ecclesiasticall Law as they are now practised among vs in this Realme I will set down as it were in a briefe what the Ciuile and the Ecclesiasticall Lawes are then will I shew how farre forth they are here in vse and practise among vs thirdly wherein we are abridged and put beside the vse and possession thereof by the Common Lawe euen contrarie to the old practise thereof and the true sence and meaning of the Lawes of this Realme and the Statutes in this behalfe prouided and lastly wherein we might be relieued and admitted to the practise of many things in the Ciuile Law without preiudice to the Common Lawe and
whereof I said there was no special Tractat in the Digest sauing that it deuideth the publike right into that which concernes the Church and Church men the Magistrates of the Common wealth prosecuting the latter branch thereof only omitting the first because out of that heathenish Religion which was vsed in those ancient Lawyers daies and those supersticious Rites whereof their Bookes were full nothing could be taken that might serue for our Religion wherupon he instituted a new discourse thereof in the Code beginning first with the blessed Trinitie one in essence and thrée in person wherein he sets downe a briefe summe of our Christian faith agréeable to the doctrine of the Prophets Apostles and the fower first generall Counsels the Nicene Constantinopolitan Ephesine and Calcedon forbidding any man publikely to dispute or striue thereabout taking occasion vpon the Nestorian Heresie which not long before had sprung vp and had mightily infected the Church which Iustinian by this confession of Fayth so published to the whole world and penall Edict ioyned thereunto hoped to represse After he hath set downe a full and sound confession of the Christian faith conformable to the Primitiue Church next he addeth a title of the holie Church it selfe and of her priuiledges which either concerne Ecclesiasticall mens persons themselues 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 degrées 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 saue the worth of the person onely and the rights of holie places Priests are so called because they were consecrated and as it were seuered from the rest of the people and giuen vp to God which also were called Elders eyther because they were so in age or ought to be in such manners and carefull cariage of themselues Amongest Priests or Ministers Bishops haue the first place who are as it were the Ouerseers and Superintendents of the rest so called of their watchfulnesse care labour and faithfulnesse in teaching the people and doing other dueties which they owe vnto the Church The lowest degrée of men among the Ecclesiasticall hierarchy were the Clarkes so called of their lot by which they were chosen and allotted to Gods seruice To Bishops Priests and other of that rank did appertaine 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 other like miserable persons therefore together with the title of Bishops Clarks is ioyned the title of Hospitals or Almes-houses In place next after the Bishops themselues comes their power audience for albeit the chiefest office of a Bishop is to instruct the people in the doctrine of the word in good example of life yet forasmuch as all will not be obedient vnto the word neither brought by the persuasion thereof to good nurture to be kept in order the eminency of the degrée wherin the Bishops are placed is not sufficient to kéepe the people in obedience without some power iurisdiction and because the Church it selfe is the mother and maintainer of Iustice therefore there is by the Emperor himselfe and his predecessors as many as professed Christianitie certaine peculiar iurisdictions Ecclesiasticall assigned to the Bishops more worthy then the Ciuill ouer persons and causes Ecclesiasticall such as touch the Soule and Conscience or do appertaine to any charitable or godlie vses and ouer the Laitie so far forth as eyther the Laitie themselues haue bin content to submit themselues vnto their gouernment that is so far as eyther it concernes their Soules health or the outward gouernment of the Church in things decent or comly or that it concernes poore and miserable persons such as widowes orphans captiues and such other like helplesse people are or where the Ciuile Magistrates cannot be come by or doth voluntarily delay iudgement in all which anciently a Bishop was to performe double fayth and sanctitie first of an vncorrupt Iudge and then of a holy Bishop But in many of these matters in these dayes the Laitie will not suffer themselues to be controld and therefore hath taken away most of these dealings from them yea euen in charitable causes Immediatly followeth a title of Heretickes Maniches Samaritans Anabaptists Apostataes abusers of the Crosse of Christ Iewes and worshippers of the hoast of heauen Pagans and of theyr Temples and Sacrifices whom the Bishop is not only to confute by learning but also to suppresse by authoritie for he hath not the Spirituall sword in vaine The Heretickes Iewes and Pagans shall not haue Christian men and women to be their seruants that such as flie to the Church for Sanctuarie or claime the ayde thereof shall not be drawen from thence vnlesse the offence be haynous and done of a pretensed and purposed malice in which case no Immunitie is to be allowed them but wicked people are to be punished according to their desert agréeable to the word of God it selfe which would not haue his Altar be a refuge vnto the wicked And so far of that part of publike right which appertayneth to the Priestes or Ministers and their Function which was omitted in the Digest but prosecuted in the Code Now it followeth that wyth like breuitie I run ouer the thrée last Bookes of the Code which themselues were rather shadowed in the Digest in the title of the right of the Exchequer then in any iust proportion handled 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 vnto them or that they are forfeyted by any offence worthie 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 carrieth it away and how the same may be reuoked vnlesse all rights and ceremonies bee solemnly performed therein How things that are in Common betwéen the Exchequer and priuat men may be sold and that the Exchequer euict nothing that it hath once sold for that it were a thing against the dignitie of the Exchequer would terrifie priuat men for bargaining with it Of those that haue borrowed money out of the publicke receipts and what penaltie they incurre if they repay it not at their daies couenanted sometimes the forfaiture of foure double of that they haue borrowed sometimes danger of life it selfe That in cases of penalties the Exchequer be not preferred before such as the Offender was truely indebted vnto but that they be first serued and then the Exchequer haue onely that which is left What vsurie the Exchequer may take that is for money lent and not for such sums as grow out of Mulcts and
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 far as it toucheth the diuision of the same among his children be holden for good but that it be in no sort preiudicial to the creditors Of women tumblers such other of like sort which with the feates of their body maintaine themselues that no oath or suertie be taken of them that they wil not leaue that kind of life since such oath is against good maners and is of no validitie in Law That such gifts as are giuen by priuat men to their Prince néed no record but are good without inrolling of them and in like sort such things as are giuen by the Princes to priuat men That no person thing or gold of an other man be arested for another mans debt which they now call reprisals that he which is hurt by such reprisals shall recouer the foure double of the damages that he hath suffered therby and that one man be not beaten or stricken for another That he that cals a man into law out of his Territorie or Prouince where he dwelleth shall enter caution if hee obteine not in the suite against him he shall pay him so much as the Iudge of the Court shall condemne him in And that he who hath giuen his oath in Iudgemēt shal pay the whole costs of the suite but after shall bee admitted to prosecute the same if hee will so that hee put in suerties to performe it That such women as are vnindowed shal haue 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 suruiueth be poore That Churches or Religious persons may change grounds one with another For that one priuiledged persons right ceaseth against another that is in like sort priuiledged That such changes of manors Lands Tenements and Hereditaments as are made by Churchmen to the Prince be not fained matters and so by the Prince come to other mens hands who haue set on the prince to make this change and that the change be made to the Princes house only and if the Prince after conuey or confer the same vpon any priuat man it shall be lawfull for the Church to reenter vpon the same againe and to reposseed it as in her former right That in greater Churches Clerkes may pay something for their first admittance but in lesser Churches it is not lawfull That such as build found or indowe 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 Clarkes vnto the Bishop but that they cannot make or ordaine Clerkes therein themselues That the sacred misteries or ministeries bee not done in priuate houses but bee celebrated in publicke places lest thereby things be done contrarie to the Catholicke and Apostolicke faith vnlesse they call to the celebrating of the same such Clerkes of whose faith and conformitie there is no doubt made or are deputed thereto by the good will of the Bishop but places to pray in euery man may haue in his owne house if any thing be done to the contrarie the house wherein these things are done shall be confiscated and themselues shall be punished at the discretion of the Prince That neither such as be dead nor the Corse or Funerall of them be iniured by the creditors but that they bee buried in peace That womens Ioyntures be not sold or made away no not euen with their owne consent In what place number forme maner and order the princes counsell is to sit and come together That he that is conuented in iudgement if he wilfully absent himselfe may be condemned after issue is ioyned That no man build a Chappell or Oratorie in his house without the leaue of the bishop and before he consecrate the place by praier and set vp the Crosse there and make Procession in the place and that before he builde it he allot out lands necessarie for the maintenance of the same those that shall attend on Gods seruice in the place and that Bishops be not non-residents in their Churches That all obey the Princes Iudges whether the cause bee Ciuill or Criminall they iudge in and that the causes be examined before them without respect of persons and in what sort the Processe is to be framed against such as be present and how against those that be absent The sixt Collation sheweth by what means children illegitimate may be made legitimat that is either by the Princes dispensation or by the fathers Testament or by making instruments of marriage betwéene the Mother and Father of the children so that the Mother die not before the perfecting of them or that she liue riotously with other men and so make her selfe vnworthie to be a wife That Noble personages marry not without instruments of Dowrie and such other solemnities as are vsuall in this behalfe that is that they professe the same before the bishop or minister of the place and thrée 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 bee needfull for meaner persons to obserue the former solemnities That such as were indebted to the Testator or they to whom the Testator was indebted bee not left Tutors or Gardeins to their children that if any such bee appointed a Tutor a Curator bee ioyned to him to haue an ouersight of his dealing that Tutors or Curators are not bound by Law to let out the Minors money but if they do the interest shall be the Minors and the Tutor shall haue euery yeare two moneths to find out sufficient men to whom hee 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 bee a yearely profit aboue his finding the Tutor shall lay vp the residue for a stock against he comes to age or buy land therwith if he can find out a good bargaine and a sure title but if the childs portion be small so that it will not find him then the Tutor or Curator shall dispose of the Minors state as he would dispose of his owne to which also hee is bound by oath How such instruments are inrolled before Iudges as concerning matters of borrowing and lending and such like may haue credit how men may safely bargaine either with writing or without writing if themselues be ignorant men and of the comparison of Letters and what credit there is to be giuen to an instrument when the writings and witnesses doe varie among themselues Of vnchaste people and such as Riot against nature whose punishment is death Of such as dispitefully on euery light trifle sweare by God and blaspheme his holy name against whom also is prouided the sentence of death That the
right of Patronage of Synodals and Procurations of consecration of Churches of Celebration of Diuine seruice and the Eucharist of Baptisme and the effect thereof of a Priest not baptized of Fasting Purification of women and other like Ceremonies pertayning to Ecclesiasticall discipline Of buylding and repayring Churches and of their Church-yards and the immunitie that belongs to them both and of sundry other things in like sort pertayning to the Church That Clerks and other Ecclesiasticall men trouble not themselues about Ciuile matters contrarie to their office and profession The fourth Booke disposeth of matters of Espousals and Matrimonie sheweth what words make espousals what Matrimonie of the Betrothing of such as are vnder age of clandestine Espousals and Contracts and of what accompt 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 marry 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 women knew not that he had an other wife he cannot leaue her his fiâ—st 〈…〉 under pretence he had an other wiâ—e 〈…〉 that if shee knew of it and did ioyne with him 〈…〉 â—â—king away his wife he cannot 〈◊〉 her 〈…〉 he were seperated from the other as 〈…〉 Whether Leprose men other which are 〈…〉 with like contagious diseases may marry and whether being married the marriage may not be dissolued vpon this point Of kindred spiritual or legall and in what sort they hinder marriage of him that hath knowen his owne wiues sister or his owne cosen german whether this offence do break the Matrimony that is contracted or do hinder the Matrimony 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 vnfit for men Of such as marrie against the Interdict or prohibition of the Church and what penalty they incur What Children be held legitimat who they be that may be accusers or witnesses in cases of dissolution of Marriages betweene man and wife Of Diuorces betwéene man and wife which are called of the diuersitie of mindes that are then betweene them for that one seeketh to go apart from the other and in what cases diuorces are allowed and how many kinds there be of them of gifts betweene man wife what securitie they haue in Law and that the Dowrie after the diuorce be restored to the woman so that it be not in case of Adultery and other such like filthynesse Of second Marriages in what cases they are to be permitted in what not The fifth Booke treateth of such Criminall matters as are handled in Ecclesiasticall Courts wherein the proceeding is eyther 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 vsed but vpon fame precedent albeit sometimes it be without fame if once the fame be proued then may inquirie be had of the trueth of the fact but yet without malice or slaunder The Criminall matters which are prosecuted in the Ecclesiasticall Courts and censured by Canonicall punishments are Symonie and selling of Ecclesiasticall graces and Benefices wherupon Prelates are forbyd to let out their Iurisdictions vnder an annuall rent and Masters and Preachers to teach for money The punishment of Iewes and Saracens and their seruants that is if a Iew haue a seruant that desireth to be a Christian the Iew shall be compeld to sell him to the Christian for xij pence That it shall not be lawfull for them to take any Christian to be their seruant that they may repaire their old Synagogues but not build new that it shall not be lawfull for them vpon good Friday to open either their dores or windowes that their wiues neither haue Christian Nurces nor themselues be nurces to Christian women that they weare diuers apparell from the Christians whereby they may be knowen and other ignominies of like sort Who be Heretickes what be their punishments who be Schismatickes what be their punishments Of Apostataes Anabaptists their punishments of those that kill their owne Children their punishments of such as lay out yong children and other féeble persons to other mens pitie which themselues haue not and how they are to be punished of voluntarie or casual murders of Tilts Barriers Tornament of Clerkes that fight in combat of Archers that fight against Christians of Whoredome and adultery and how they are to be punnished of such as rauish women and theyr punishment of Théeues and Robbers of vsury and the payne thereof of deceipt and falshood of Sorcery of collusion and Cosonage and the reuealing of the same of Childrens offences and that they are not to be punished with the like seueritie as mens offences are of Clerks hunters or hawkers who if they often times vse and sport themselues therein if they be Bishops they are to be suspended from the Communion thrée 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 neuerthelesse 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 seruice two monethes Such as speake ill of Princes and other like great persons spirituall or temporall are to be punished so that other by their example may take héed to speake ill specially such as blaspheme the Maiestie of the almighty God If Clerks excommunicated deposed or interdicted in that they came to the highest order without passing thorough the inferior orders or that they came to the same order couenously and deceiptfully or being not ordered at all or at the lest not ordered lawfully dare take vpon them eyther to Minister the holy Sacraments or to say diuine Seruice are to be deposed from their office and from their benefice and neuer after to be ordered Prelats are not to gréeue their subiects eyther 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 iudiciall 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 vse in a Church wherein he hath collation or subiection and that he is not to bestow any benefice vpon any that is vnworthy for the same eyther in life or doctrine with
Nephew And thus much of succession of kings wherein the eldest among Males hath the prerogatiue and the like in Females if there be no Male for that a Kingdom is a dignitie vndiuisible and can come but to one bee hee Male or Female for that otherwise great gouernments would soone come to small Rules and Territories And the like that is said of Kingdoms is to be held of all Dignities vnder Kingdomes where the eldest son is to bee preferred before all his other brethren and they successiuely one before another if there be no issue left of them that goe before and the Male line is to be preferred before the Feminine and the Feminine before all the rest of the kindred so it be not a Masculine Feud and the same intailed vpon the heire Male. And thus far as concerning the matters wherein the Ciuile Law dealeth directly or incidently within this Realme Now it followeth to shew how much of all those titles of the Canon Law which haue bin before set downe are here in practise among vs. Of those Titles of the Canon Law which before haue béene recited some are out of vse here with vs in the singular or Indiuiduum by reason of the grosse Idolatry they did containe in them as the Title of the authoritie and vse of the Pal the title of the Masse the title of Reliques the worship of Saints the title of Monks and Regular Canons the title of the kéeping of the Eucharist and Creame such other of like qualitie but yet are retained in the generall for in stead of them there are substituted in their places holy worships tending to the like end of godlinesse those other did pretend but void of those superstitious meanes the other thought to please God by and so in stead of the Masse hath come in the holy Communion and in place of worshipping of Saints hath succeeded a godly remembrance and glorifying of God in his Saints and so of the rest whereof there is any right vse within the Church Some other are out of vse as well among the Ciuile as Criminall titles because the matter that is therein treated of is knowne notoriously to belong to the conusance of the Common Law at this day as the titles of Buying and Selling of Leasing Letting and taking to Farme of Morgaging and pledging of Giuing by déed of gift of Detecting of Collusion and Cosenage of Murder of Theft and receiuing of Théeues and such like And yet I doubt not but euen these matters as well Ciuile as Criminall or most of them were aunciently in practise and allowed in Bishops Courts in this Land among Clerkes to the which I am induced by three reasons First that I find not only the forraine Authors of the Decretals but also the domesticall Authors of the Legantines being all most excellent wise men as the Stories of their seuerall ages do report to haue inacted these seuerall constitutions and to haue inserted them not onely in the bodie of the Canon Law but also in the bodie of the Ecclesiasticall Lawes of this Land and that some wise men sundry years after their ages did write and comment vpon the same as things expedient and profitable for the vse of the Church and the gouernment of the Clergie in those daies neither of which I doe presume they would haue done if in those ages there had not béene good vse and frée practise of them Secondly that I find in the Code of Iustinian by sundry Laws some of his own making some other of other Emperors before his time euen from the daies of Constantine the great bishops in their Episcopall audience had the practise of these matters as wel Criminal as Ciuile and to that end had they their Officials or Chauncellors whom the Law calleth Ecclesiecdici or Episcoporum Ecdici that is Church Lawyers or Bishops Lawyers men trained vp in the Ciuile and Canon Law of those ages to direct them in matters of Iudgement as well in Ecclesiasticall Criminall matters as Ecclesiasticall Ciuile matters And that these which now are Bishops Chauncellers are the verie selfe same persons in Office that aunciently exercised Ecclesiasticall Iurisdiction vnder Bishops and were called Ecclesiecdici it may appeare by that which Papias an old auncient Historiographer cited by Gothofred in his Annotations vpon the foresaid Law Omnem in the Code and title de Episcopis and Clericis and vpon the § Praeterea writeth of them who saith thus that Ecclesiecdici or Ecdici were those that were ayders and assisters to the Bishops in their Iurisdictions not astrict or bound to one place but euery where through the whole Diocesse supplying the absence of the Bishop which is the very right description of the Bishops Chauncellers that now are who for that they carrie the Bishops authoritie with them euery where for matters of Iurisdiction and that the Bishop and they make but one Consistorie are called the Bishops Vicars generall both in respect their authoritie stretcheth it selfe throughout the whole Diocesse also to distinguish them from the Commissaries of Bishoppes whose authoritie is onely in some certaine place of the Diocesse and some certaine causes of the Iurisdiction limitted vnto them by the bishops and therefore are called by the Law Iudices or Officiales foranei as if you would Clem 2. ca. foraneos de rescript say Officiales astricti cuidam foro diocesis tantum So that it is a very méere conceit that a certaine gentleman very learned and eloquent of late hath written that Chauncellers are men but of late vpstart in the world and that the sloth of bishops hath brought in Chauncelors wheras in very déed Chauncellers are equall or néere equall in time to Bishops themselues as both the Law it selfe and Stories do shew yea Chauncellers are so necessarie Baldus l. aliquando ff de officio Proconsulis officers to Bishops that euery Bishop must of necessitie haue a Chaunceller and if any Bishop would séeme to be compleat within himselfe that he néeded not a Chaunceller yet may the Archbishop of the Prouince wherein he is compell Couar lib. 3. variarum resolut c. 20. num 4. S. Brâ—zâ— lâ—b 1. de vicaâ—â—o 〈◊〉 q. 46 nâ—m 1. 4. 12. 13. him to take a Chaunceller or if he refuse so to doe put a Chaunceller on him for that the Law doth presume it is a matter of more weight than one man is able to susteine to gouerne a whole Diocesse by himselfe alone and therefore howsoeuer the nomination of the Chaunceller be in the Bishop yet his aucthoritie comes from the Law and Hostiensis in sum made officio Vicarij numoro 2. in sine nomirationem ab 〈◊〉 potestatem vero a iure recipiuntur therefore he is no lesse accompted an Ordinary by the Law than the Bishop is But trueth it is not the sloth of the Bishops but the multitude and varietie of Ecclesiasticall causes brought them in which could not be defined by
diuided into Tit. cap. 1. v. 5. seueral Parishes it was the ordinance of Pope Dionisius about the yere 266. frō him deriued into this other realms the distinction thereof was chiefely deuised that it might be knowne of what congregation euery people were and that so they might be trained vp in the Schole of godlinesse vnder their owne Pastor or Minister But that now the diuision of Parishes doth serue to other politike vses it comes not of the first institution thereof which was méere Ecclesiastical but it groweth out of a second cause that is because beeing so fitly and aptly primarily diuided by Ecclesiasticall men as they are the Princes therefore did vse the opportunitie thereof for Temporall seruices subdiuiding the same againe into many Tythings or like smaller diuisions for the more spéedie seruice of the king and better ordering of the common wealth Which our auncient Fathers well knowing neuer called the same in question acknowledging therein the good they had receiued from Ecclesiasticall men by this partition of Countries into Parishes but men of later age being lesse thankfull than they and loath to séeme beholding to Ecclesiasticall Courts for any matter of good order and disposition haue arrogated the same wholy to the Temporall Courts as though the Ecclesiastical Iudge could not as well discerne what two or thrée honest men depose and say as concerning the limits or bounds of a Parish as twelue meane men of the countrie who are vpon like depositions to giue vp their verdict But for the limits of Bishoprickes I acknowledge that they are Temporall for that they were not primarily designed out by Ecclesiasticall men and theyr direction but were assigned to Prouinces or Shires first described and distynguished by Princes but for Parishes neyther reason nor antiquitie concurs with them that they should be temporall or that they should be vsurped or challenged to be of the temporall cognisance And so much for those Prohibitions which they commonly frame out of the 27. and 32. of Henry the eight not that there are no more but these but that hauing a taste of these there may be like Iudgement made of the rest Out of the statute of the 2. of Edward the 6. cap. 13. they vpstart many Prohibitions the first whereof in order of the Statute although the last in practise is the prohibition of treble damages vpon not diuiding and setting out of Tythes or at the least for the not compounding for them before they be carried away Which forfeiture they suggest and thereupon bring a Prohibition and so draw the whole suit of Tythes into their Courts contrary to the true meanning of this Statute which would those treble dammages in case of not iustly diuiding and setting out or not compounding for the Tythes before they be carried away be no lesse recouerable before an Ecclesiastical Iudge according to the Kings Ecclesiasticall Law than the forfeyture of double value by the letting and stopping of them to be caried away whereby they are lost with the costs thereon growing is remediable at the same Law For albeit the clause which is to redresse this wrong be put after that part of the Statute which concernes the stopping and letting of Tythes to be carried away yet when there is as great reason it should stretch it selfe to the first branch of the prouision as to the second and the second branch hangeth on the first by a coniunction copulatiue and there is no hetorogeny or disparitie in the matter whereby it may not be aswell verified in the one branch as in the other I see no reason why it should not equally respect them both according to the rule of the Law Clausula in fine posita refertur ad omnia C. 6. tit 28. l. 1. precedentia maximè quando non resultaret intellectus contratius iuri as here it doth not for the intendment of eyther branch of the Statute is to procure by theyr seuerall forfeytures a iust and true payment of Tythes the recouerie whereof as the precise words of the Statute in one member restrayne vnto the Ecclesiasticall Law so the Identitie of reason in the other member doth confirme it vnto the same Law for where there is the like reason L. Illud ff ad l. Aquiliam or equitie there ought to bee the like disposition or order of Law Beside if the principall cause it selfe be triable in the Ecclesiasticall Court why should not those things which hang thereon be tried in the same Court for they are but as it were accessaries to the principall and so not only follow the nature of the principall but also belong to the Court of the principall and are determinable where the principall is for otherwise happily there might fall out contrary sentences of one and the selfe same thing the one condemning the other absoluing Further in that Court wherein the course of Iustice already is begun the cause may with lesse labour and easier expences be ended being both for the most part determinable by one sentence than that a new processe thereof should begin before an other Iudge who knoweth little or nothing of the principall matter and therefore cannot so easilie decide the accessarie Lastly those which take this course first to surmise a forfeyture then to draw the originall suit whereupon the forfeyture grew into question bring in a proceeding far different from the common style of all well ordered Courts in all Nations among whom the cognusance of the cause triall thereof goeth before and the forfeyture or execution thereof followeth after But in this Hysteron proteron the execution is in the foreward and the triall is in the rereward In which doing they deal much like as Cacus the Giant dealed with Hercules oxen who to thintent that Hercules should not find what way they were gon drew them backward by the tayle into his Caue but as that deuise setued not Cacus but that Hercules had his oxen againe so it is to be hoped the Reuerend Iudges of the land will not long suffer this subtiltie to preuaile but as it came in like a Fore and raigned as a Wolfe so in the end it shall dye and vanish away like a vaine deuise much like the destinie of Boniface the eight for the reuerend Iudges are not only to minister Iustice betweene man man so that euery man may haue his owne and none be eppressed of an other but also they are to carrie an vpright and indifferent hand betwéene Iurisdiction and Iurisdiction yea though themselues be parties to the matter in question so that one Iurisdiction eat not vp an other as the Locusts in Egipt deuoured vp all the greene things of the land An other Rendeuous they make of the words of this Prouiso Law statute priuiledge prescription or composition reall as though all which passeth vnder any or these tearmes belongeth to the triall of the Common Law and not to the cognisance of the Ecclesiasticall Law and that
meanes of these Priuiledges ordered in the second Lateran Councell holden in the yeare of grace 1120. that for such lands as any of the Ca. nuper Abbates de decimis said fower Priuiledged 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 wyth their owne hands or manured them at their owne charges Which consideration also moued Henry the fourth a king of this Realme to prouide by Statute first that such of the order of Cystertians as had purchased An. 2. H. 4. ca. 4. Bulls to be discharged of Tythes should be reduced into that state as they were before Then that no An. 7. H. 4. ca. 6. person Religious or Secular by colour of any Bulls conteyning any priuiledges to be discharged of Dismes pertayning to any Parish Church not put in execution should put the same in execution or should purchase the like in time to come Whereby it is verie probable that few of those landes which are now challenged to be frée of Tythe by the Statute of the xxxj of Henry the eight are frée of Tythes in 31. Hen. 8. cap. 13. déed for that they are no otherwise fréed by that Statute than that they were first fréed in the Religious mens hands so that if they were neuer fréed in their hands they remaine still charged with Tithes But betwéene 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 thrée hundred and thirty yeares and betwéene the foresaid Statute made in the seuenth yeare of Henry the fourth and the subuersion of the Monasteries brought to passe by Henry the eight as hath bin before remembred are one hundred and thirty yeares In which long distance of time the one from the other it is not to be doubted but many of those Religious houses were built and indowed which by no possible meanes could be partakers of those priuiledges which were abolished before the time of their erection neither was there any reuyuing or renewing of these priuiledges by any Pope of Rome or Prince in this Realme after they were thus first repealed by the Pope and Prince aforesaid for oght that I haue read or heard to the contrarie So that if this matter were well vnderstood and the ages and orders of those Religious persons from whom the clayme is made were rightly conceiued it would giue great light vnto the Iudges to discerne what lands were exempted from the payment of Tithes and what not for now many are pretended to bée exempted from Tythes which neuer were of any of those fower orders and if they were yet were they not before the time of the interruption but since And so far as concerning the second effect of these Priuiledges Now it followeth that I speake a word or two of compositions which are agréements betwéene persons litigant whereby eyther partie may know their owne right and not striue againe about doubtfull matters As good Lawes haue growen out of ill manners so compositions haue risen out of quarrels caused by priuiledges and other like exemption for matter of Tythe whereof although there be no speciall Treatise in the Law as there is of the rest yet they are so often mencioned by the Decretals themselues as that it is not to be doubted but that they are part of the Ecclesiasticall Law aswell as the rest are that they are the deuise of the Ecclesiasticall Lawyers and not the conceipt of the Common Lawyers the forme and stile of them doth wel shew which sauoureth wholly the maner and phrase of writing of the Ecclesiastical men hath no touch of the Common Law at all And if the deuise bee the Ecclesiastical mens as all Bishops Registers euery where do shew which are full of these compositions why should not also the totall be theirs that euery cause might haue his ending where it hath his beginning Eorum enim est legem interpretaâ—i quorum est conâ—â—râ— And these are those grieuances of the Church which I said the Schoolemens curiositie in their distinctions either inuented or gaue strength vnto them after they were inuented but inuent them all I thinke they did not for that these Acts of appropriations of benefices were somewhat more antient than the Schoolemen themselues are but the rest of the Priuiledges they either came into the world with them or insued anon after them so that I may well say they much strengthened this iniquitie For when that euery man vnderstood by their Doctrin the quotitie of Tythes or the tenth part thereof was not precisely by Gods Law since the light of the Gospell sprang out as the day light vnto the Christians who before sate in darknesse and the shadow of death but that it was by the institution of the Church onely then began they freely to spoyle the Church of her due Tythes and to giue away that to one Church that was due to another And the reason that persuadeth the Schoolmen to this was that after much adoe diuiding the whole Law of Moses into thrée parts the Morall the Iudiciall and the Ceremonial they did conclude that there were thrée parts likewise in the Tythe the one Morall which was a necessarie maintenance for the Minister and therefore was naturall and perpetual the other Iudicial which was the number of ten fit as they taught for that people onely and therefore was positiue and remotiue 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 wherby they did infer 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 Tyths which opinion hath bin wel confuted of late by a very learned man as his Treatise therof doth well shew but I fear with lesse successe than the truth of the cause doth deserue for this is a point that toucheth many mens priuat benefit therefore shal haue no more fauor than it néeds must But the deuise whereon the Schoolmen did build this Ceremonie Thom. in quodâ—â—bet part 3. art 6. q. 6. is this that as all Digits vnder ten are vnperfect do tend to ten as to their perfectnesse so all men saue Christ alone are vnperfect haue need of Christs righteousnesse to make them perfect Which Abraham well knowing paid Tythes to Melchisedech who was the figure of Christ as therin acknowledging that himselfe al mankind who were represented by the other nine Digits were vnperfect by reason Idem part 22. q. 87. art 1. of Original sin dwelling in them therefore had néed to be perfected by Christ who was figured by the tenth number All which that we may grant to bee true betwéene Christ and all mankind as it is true indéed and
miscarie Such as kéepe brothell and baudy houses or other vnlawful company Iuglers and such as carie about Snakes and other like Serpents and trumperie to put men in feare Such as hide and suppresse Corne to cause the price to be dearer Such as eyther make or vse false waights wittingly for all which because there is no proper punishment prouided in the Law they are referred to the punishment of the Iudge who is to punish them according to the qualitie of the fact age and vnderstanding of the offender and other circumstances according as he shall thinke good so notwithstanding that he excéed not a conuenient measure therein neither stretch the same to death but vpon some great and weightie cause he is to be content with meaner punishmēt as temporall banishment whipping or some moderat pecuniarie mulct For violating or defacing another mans sepulcher Infamy was imposed besides a pecuniarie mulct to be diuided betwéene the Prince and the partie grieued but if any dig vp the corse of the deceased the punishment is death If any by feare of his office or authoritie wring any money from any man or exact more fées in any matter than hee ought to doe or cause him to marry or doe any other thing he would not doe the forfeiture is foure double the value of that which hath béene taken beside further punishment at the discretion of the Iudge Such as driue mens cattell out of their ground or seuer them from the flock or heard with intent to steale them if they doe it with a weapon like vnto a Robber are condemned to bee throwne to wild beasts otherwise are more lightly punished according to the discretion of the Iudge Such as in Iudgement take money on both sides or taking vpon them the defence of one side betray the cause and take money on the other side are infamous by law and are punished at the discretion of the Iudge Such as receiue théeues and other like malefactors are punished in like sort as the théeues or malefactors themselues are specially if they haue assisted them in their wickednesse otherwise if they onely knew it and receiued them they are more mildly to be punished specially if the offenders were their kinsmen for their offence is not like theirs which entertaine those which are no kin vnto them at all when as it is naturall for euery one to regard his own blood and fathers are many times more carefull for their children then for themselues but if that hee that receiued them knew nothing of the offence then is hee altogether to be excused Such as breake prison are to bee punished by death because it is a certaine treason to breake the Princes ward but if they scape by the negligence of the Kéepers against whom the presumption lyeth euer in this case they are more lightly to be punished If any commit Burglarie breaking vp a dore or wall with intent to doe a Robberie if they be base companions they are to bee condemned to the Mines or Gallies but if they be of better reckoning they are to be put from the ranke or order wherein they are or to be banished for a season Iuglers and like Impostors which goe about deceiuing of the people with false tricks and toies hookes and such like which insinuat themselues into other mens houses with purpose to steale are punished at the discretion of the Iudge If any steale or take away any thing out of the inheritance of another man before either the Will be prooued or adminstration be taken an action of theft lyeth not because the inheritance during the time was counted no bodies but hee is to be punished by the discretion of the Iudge yea though it were the heire himselfe that did it Cosenage whereby a man craftily suppresseth something he should not or putteth one thing in anothers place to the deceit of him that he dealeth withall or corrupteth such wares which hee vttereth or doth any other thing collusorily which is called of the Law Crimen Stellionatus of a little vermin or creature called Stellio much like to a Lisard most enuious to man is censured by some ignominious and shamfull punishment or by disgracing the person by putting him out of the Office Place or Order he is in or by inioyning him some seruile worke or by banishing him for a time or by some like punishment at the discretion of the Iudge If any plough vp a Mere balke or remooue any other marke which hath accustomed to bee a Marke or bound betwéene ground and grounds which aunciently was counted reuerend and religious among men the offence is punished either by a pecuniarie mulct or by banishment or whipping at the discretion of the Iudge Vnlawfull Colledges Corporations and assemblies gathered together to bad vses as to eating drinking wantonnesse heresie conspiracie as punished are publike Routs or Riots otherwise at the discretion of the Iudge All these before recited are called Populer Actions because not only he that is iniured but euery other honest subiect may peruse and prosecute the same Publick Iudgements are such which immediatly pertain to the punishment of the common wealth for example sake and are examined tried and punished by a publicke order appointed by Law the partie grieued making himselfe partie to the suite and following the same the partie accused in the meane while remaining in prison or putting in suerties for his apparance and the partie grieued for the prosecuting of the same The chiefest of which sort is Treason which is a diminishing or derogation of the Maiestie of the people or Prince on whom the people haue collated all their power which is punished with death and confiscation of the Lands and goods of the offender and the eternall abolishment of his memorie The next is Adultery which is violating of another mans bed whose punishment aunciently was death both in the man and in the woman but after it was mitigated in the woman she being first whipt and then shut vp in a Monasterie but by the Canons other paines are inflicted Vnder Adulterie are contained Incest Sodomy Baudery and all the rest of the sins of that kind Publicke force is that which is done by a company of armed men collected together and the correction thereof is perpetuall banishment Priuat which is done without Arms the paine thereof is the losse of halfe the parties goods and the infamie of his name Murtherers and Poysoners Witches and Sorcerers the crime being proued dye the death such as set mens houses a fire are to be consumed with fire themselues such as Kill either Father or Mother or those that are in the place of Father or Mother or any that are of next a kin their punishment is death and in case of the Father and Mother beside the paine of death the Parricide being first well whipt so that the blood doe follow in good plenty being sowed vp into a sacke together with a Dong a Cock and an Ape hee is throwne into
daies after Sentence giuen or within ten daies after the Notice is come to the partie against whom the Sentence did passe vnlesse there attend thereon a continuall griefe in which case a man may appeale so long as the griefe indures the time to aske Dunissorie Letters is thirtie daies from the Sentence giuen the time to present the same to the Iudge is at the discretion of the Iudge from whom the time of prosecuting the same is a yeare or vpon iust cause two yeares in which time if the sute bee not ended the cause is deserted and to be sent back vnto the Iudge from whom the Appeale was first made while the Appeale hangeth nothing is to be innouated because by the Appeale the Iudges hands are as it were bound but if the former Sentence were void by law as in sundry cases they are then there néedeth no Appeale for such Sentences neuer passe into a case Iudged Appeales in criminall cases cannot be iustified by a Proctor but it is otherwise in Ciuile causes An Appeale in one cause doth not exempt the partie appellant from his own Iudge in other causes If the appellant die during the time of the Appeale and leaue no heire behind him the Appeale ceaseth but if he leaue an heir behind him the matter of the Appeale concernes none but himselfe he is not to be compelled to follow it for euerie one may renounce his owne suite but if it concerne the Exchequer or any other bodie then may hee be compelled to follow it The Exchequer is the Princes Treasurie and the patrimonie of the common wealth and hath many singuler prerogatiues which priuat men haue not Such as are taken captiue by the enemy become their seruants who haue taken them vnlesse eyther they escape home againe themselues or be ransomed by their friendes in both which cases they recouer all right and priuiledges they had in their owne common wealth before By the Law all Subiects whatsoeuer are bound to serue the common wealth in warre insomuch that if any being prest withdraw himselfe or his child from it he is to be counted as a rebell and for his punishment is to be banished and mulcted or fined in the greatest part of his goods As the priuiledges and rewards of Souldiors were many to incorage them to vertue and manhood so their shames and punishments were great to feare them from cowardice and vice But among the rest of the priuiledges of Souldiors the old Souldiors were the greatest Of Subiects some dwelt in Shires and liued after their owne Lawes and yet neuerthelesse were made partakers of the honors of the Citie some other were inhabitants onely in the common wealth and had onely a house in the same place to dwell in and had no right to beare office some other were straungers brought in which were ruled by the Law of them among whom they dwelt Amongst those that dwelt in Shires the chiefest Magistrate was he whom they called Decurio who was not sent by the people of Rome thither for he was a Magistrate of Magistrates but elected by the people there and his office was to kéepe the treasurie of the Countrey to prouide victuall exact tribute and gouerne the state there in maner as our Shirifes doe here His office was onely annuall least by libertie and lust of gouernment and continuance thereof it might grow into a tyrannie Such as are Subiects are to serue the common wealth in such offices places and seruices as their abilitie is fit for and the necessitie of the common wealth requires The seruices of the Common wealth were of thrée sorts Patrimoniall such as belong to euery mans patrimony to performe which stood chiefly vpon payments and charges which were to go out of euery mans inheritance towards the performance of such burthen as lay vpon him by law custome or commaund of him that had power thereto Personall which were to be performed by the care and industrie of the partie and his corporall labour without expence of his purse Mixt which required both care of the mind and labour of the bodie and expence of the purse and are imposed aswell in consideration of the thing as the person which euery subiect is to vndergo vnlesse by the Law or by the indulgence of the Prince they are excused as some are excused by reason of olde age some by yong age some for their dignitie some for their calling some for their state of bodie some for that they serue in the necessarie seruices of the Common wealth at home or abrode as Imbassadors doe some for that they are necessary places of seruices for Gods Religion as cathedrall Churches other Churches are some for that they are good and necessarie places for Seminaries for the Common wealth for learning and such other imployments as Colledges Societies and Schooles of learnings and nurture are Legates and Imbassadors had immunitie from all publike seruices not only the time of their embassage but also two yeare after their returne They were called Legates in that they were chosen as fit men out of many their person was sacred both at home and abrode so that no man might lay violent hands on them without breach of the Law of Nations Such as are Magistrats of cities ought so to gouerne that no negligence may be iustly imputed vnto them otherwise they are to answere it and that when their office is expyred they giue vp a iust accompt both of what they haue receiued what they haue laied out pay in the residue if there be any Gouernors of Cities together with the consent of the Burgesses therof may set downe such orders and decrées as are for the benefit well ordering thereof which are to be obserued of all those which are Inhabitants therof and being once wel and duely set downe are not to be reuersed but to the good of the Citie or Comminalty New publike works such as are good for the Common weale euery one may make without the leaue of the Prince vnlesse it be done for emulation or cause of discord but for old works in which stands the securitie of the Common wealth as Castles towers gates and wals of Cities nothing is to be done or innouated in them without the Princes warrant neyther is it lawfull for any man to graue his name in any publike work vnles it be his at whose cost the work is done Faires are authorized by Princes only are inuented for trade of marchandize vttering of wares which Countrymen haue cause to buy or sell and haue their priuileges that no man in any Faire can be arrested for any priuat debt they are called Nundinae therupon that euery ninth day they were holden either in one place or other He that for x. yeares space intermitteth to vse his Fayre loseth the priuiledge therof If any make any promise to a Citie or Common wealth to do any thing vpon certain cause as that he might be made Consul or that
Penalties That such sentences that are giuen against the Exchequer may be retracted within thrée yeare following although ordinarily all other Sentences are irreuocable after ten daies neither can be reformed after that time either by rescript of the Prince or by pretence of new proofe Of the goods of such as exchet by reason they haue made no Will and of the goods of Incorporations that is of such as dye without Heires that they come not to the common banke of the citie but that they exchet vnto the Prince Of Promotors by whose information any goods are confiscate either by reason of the goods themselues as that they are adulterine or that they are prohibited to be exported or imported or vpon some other like cause or by reason of the persons that haue offended and crimes wherein they haue offended and their punishment if they giue in any wrong information or other then such as they are bound vnto by vertue of their Office and that they giue no information in but by aduise of the Attorney of the Exchequer and that they make no information against their Lord and Master but in case of Treason that it shall be lawfull for no man to make suite vnto the Prince for those things that are confiscated vnto the Exchequer as though it were more Honorable for the Prince to bestow such things on his Courtiers then to kéepe them to himselfe and therefore such as are the Princes Secretaries his Masters of Requests and others that are of his remembrance are forbidden to make any Acts Instruments or other writings hereof vnlesse the Prince of his owne motion and at no other mans suite will or commaund the same Of such as put themselues into the Exchequer vpon any confession made against themselues Of such to whom the Prince ioyntly hath giuen any farme or like thing that where one of them dyeth without an heire the other may succéed him Of Treasure found that the Exchequer be made acquainted with it and that if it bee found in a publicke place halfe goeth to the Exchequer the other to the finder but if it bee in a priuat place then halfe to the Lord of the soyle and the other to the Finder Of prouision for Corne and such other like Of Tribute which was an ordinarie payment Of imposition and super-impositions which were paiments laid vpon the subiect aboue ordinarie tax for some present necessitie to which charges the ordinarie tax doth not suffice which was not to bee done but vpon great and vrgent cause by a councell called together and with the consent of the subiect Of Collectors of the Subsidie and in what manner they are to bee collected and brought into the Exchequer and of the punishment of those that in the collection thereof extort more than is due that it shall bee lawfull to distraine for Tribute vnpaid that such acquitances as the Exchequer shall deliuer vnto the accomptants shall bee their full and finall discharge and that the Subsidie Bookes shall euery quarter bee sent vp into the Exchequer with the account of the Collectors that thereby it may appeare how much euery man hath paid or oweth vnto the Exchequer and that nothing may bée doone for the grieuance of the poore or the fauour of the rich Of the booke of accounts of yéerely gifts that commonly Subiects present vnto the Prince at New yeares tide and otherwise and that they bee diuided from the accounts of the Exchequer That no man bee fréed from the payment of Tribute Of spending out such ancient graine and other like prouision as is laid vp in the common store-house and making prouision for a new and compelling the subiects such as haue plentie of such graine if it happen to bee vinoed and mustie to buy the same that the whole losse thereof may not lye vpon the Exchequer What pension such Mannors as the Prince hath giuen or released from payment of Subsidies shall giue and that no man bee so hardy to beg such a matter of the Prince lest the reuenews of the Exchequer be thereby diminished Of Mannors that haue béene translated from the payment of one kind of prouision to another or that haue béene in their taxation ouer rated Of Brasse that Minerall Countries are to yéeld or money in lieu thereof Of Controllers whose Office it was to cast ouer againe such accompts as were brought into the Exchequer or to examine them a new least perhaps there might bee an errour in them And so far as concerning those things which doe appertaine to the accompt of the Exchequer or the patrimony thereof or such pensions or payments as are due vnto the same Now followeth the other part of this tenth Booke which containeth the burthens duties or offices imposed on the subiect by the Exchequer and what excuse the subiect might alleage in this behalfe Burthens or dueties were either personall as places of Honour which were not to be continued from the father to the child or they be Patrimoniall which are charged vpon mens inheritance either for the good of the common wealth or to inrich the Exchequer against dangers that are like to insue which are vndertooke and performed either by those which are of necessitie to obey that which is inioyned them or by those which offer themselues voluntarily therto which seldom happeneth in patrimonial charges but in matters of Honour and Personall seruices it many times commeth to passe that men excuse not themselues from bearing of Offices or doing of Personall seruices although they haue an immunitie from them either by the graunt of the Prince which is to be vnderstood of extraordinarie seruice only and not of ordinarie or by the benefit of the Law for by the law men are many times vpon iust causes excused from Personall seruices so it be not from such seruices as no man can excuse himselfe from such as are Postings and carriages when the Prince passeth by or the Tenure of his Inheritance doe so require it and the erecting and repairing of Bridges Waies and Wals the prouision and carriage of Corne and other like kindes necessarie for the maintenance of the Princes house Men are excused either generally from all kinds of seruices or particularly from some as all Minors specially such as are Students in any famous Vniuersitie whilest they giue themselues there vnto their booke are excused fron all Personall seruices but not from Patrimoniall seruices as also all old men of the age of seauentie yeares and vpward all professors of Liberall Sciences whereby the common wealth is benefited all professors of Phisick Grammer Oratorie or Philosophie so they bee allowed by the Magistrate and seauen skilfull men in the profession which they make shew of and bee not Supernumerarii or aboue the number of those that are to be allowed in which number are neither Poets or Auditors they are also excused which vpon iust cause are dismissed either out of the Army or out of the Schooles either for lack of
and change of life and who is to succéed them in their goods and inheritance Of Bishops and Clerks that is that Byshops and Clerks be of good fame of competent learning and age and that they be ordeyned and promoted without Symonie or briberie or the iniurie of the present Incumbent And that there bée a set number of Clerkes in euery Church least the Church and Parishioners thereby be ouer charged The second Collation treateth of the Churches state that the lands of the Church be neyther sold aliened nor changed away but vpon necessitie or that they be let to farme for a time or vpon other iust cause no not with the Prince himselfe vnlesse the change be as good or better than that which he receyueth from the Church and if any man presume contrarie to this forme to change with the Church hée shall loose both the thing hee changed and the thing he would haue changed for it and both of them shall remayne in the right of the Church And that no man gyue or change a barren peece of the ground with the Church That Iudges and Rulers of Prouinces be made without gifts of their office power authoritie and stipend and that they sweare they shall so sincerly and vprightly execute their office as knowing they shall giue an accompt thereof to God and the King which oath they shall vndergo before the Bishop of the place and the chiefe men of that Prouince whether they are sent to be Iudges or Gouernors Of the Masters of Requests and their office which offer to the Prince suters Petitions and report them back from the Prince vnto the Iudges Of wicked and incestuous Marriages and that such as marrie within those degrees forfeit all that they haue vnto the Exchequer for that when they might make lawfull Marriages they rather choose to make vnlawfull Marriages The third Collation contayneth matter against Bawdes that they be not suffered in any place of the Romane Empire that being once warned to forbeare their wicked profession if they offend therein againe they die the death therefore If any man let any house to a bawd knowing him to be a bawd that he shall for fait x. li. to the Prince and his house shall be in danger to be confiscated Of Maiors and Gouernors of Cities that such be chosen that be honest people and men of credit and that no man of the Citie being thereto chosen refuse the same and that such as are therto chosen shall swears they will procéed in euery matter according to Law and conscience That there be a certaine number of Clerkes in euery Church and that it be neyther diminished nor increased and therfore that there be a translation of those that abound in one Church into an other Church that wanteth The precepts which Princes gaue to Rulers of Prouinces were these in offect that whereas themselues were fréely chosen thereunto they should in due sort and order go into their Prouinces that they should kéepe their hands pure from bribes that they should carefully looke vnto the Reuenues of the Exchequer and the peace and quiet estate of the Prouince represse outrages and rebellions procure that causes be ended with all indifferency and ordinary charges to foresée that neyther themselues nor any of their officers or vnderministers doe iniurie to the people least those that should help them doe hurt them To prouide that the people want not necessarie sustenance and kéepe the walls of the Citie in reparation that they punish offences according to the Law without respect to any mans priuiledge neyther admit any excuse in the examining or correcting of the same saue innocency only that they kéepe their Officers in order that they admit to their Counsell such as are good men and are milde towards such as are good and sharpe towards such as are euill that they afford not Protections to euery man neyther to any one longer than it is fit and conuenient it should be That where they remoue they vex not the Countrey men with more carryages then is néedfull that they suffer Churches and other like holy places to be a Sanctuarie to murtherers and other such like wicked men that they suffer not Lands to be sold without fine made to the Exchequer that they regard not Letters or rescripts contrarie to Law against the weale publicke vnlesse they be seconded That they suffer not the Prouince to be disquieted vnder pretence of Religion heresie or sch sme but if there bee any Canonicall or ordinarie thing to be done they aduise thereabout with the Bishop that they do not confiscat the goods of such as are condemned that they patronize no man vniustly that no man set his Armes or Cognusance vpon another mans Lands neither that any carrie any weapon vnlesse he be a Souldier What is an hereditarie porcion and how children are to succéed of such as deny their owne hand writing and how they are to be punished as well in personall as in reall actions and that such deniers after their deniall be not admitted to other exceptions and the taking away the thing in controuersie from him which denied the true owner to be Lord therof The fourth Collation handleth matters of Marriage and that marriage is made only by consent without either lying together or instruments of dowrie Of women that marry againe within the yeare of mourning which by Law in sundry sorts was punished for confusion of their issue that there be an equal proportion in the Dowrie and the Ioynture Of Diuorce and separation of marriages and for what causes by consent for impotencie for adulterie and that Noble women which after the death of their first husband being noble personages marrie to inferiour men shall loose the dignitie of their first husband and follow the condition of their second husband Of Appeales and within what time a man may appeale and from whom and to whom the appeale is to be made That none which lends money to an husbandman take his land to morgage and how much vsury money a man may take of an husbandman Of her that was brought to bed the eleuenth moneth after her husbands decease and that such as are borne in the beginning of the same moneth are to be accompted for Legitimat but such as are borne in the end therof are to bee holden for bastards Of instruments and their credit and that in euery instrument there be protochols left that is signes and notes of the time when such a contract was made and who was notarie and witnesses to the same and that after it bee written faire and ingrossed in a lidger or faire mundum Booke The fift Collation forbiddeth the alienacion or selling away of the immoueable possessions of the Church vnlesse it be done vnder certaine solemnities and then only when the moueable goods are not sufficient to pay the debts of the Church or holy place Further it prouideth that the name of the Prince for the time being be put
man more than for 30. yeares or 3. liues vnlesse eyther the houses be so ruynated that they cannot be repayred without great charges of the Church or other religious houses or that it be ouercharged with any debts or dueties belonging to the Exchequer and thereby there commeth small reuenue to the Church or Religious place thereout in euery of which cases it is lawfull to let out the same for euer reseruing a yearely competent rent other acknowledgements of other souerainties therein That the holie vessels of the Church be not sold away vnlesse it be for the ransoming of Prisoners or that the Church be in debt in which case if they haue more holy vessels than are necessary for the seruice of the Church they may sell those which are superfluous to any other Church that néedeth them or otherwise dispose of them at their pleasure for the benefit of the Church or other holy place whose they are Where Vsurie in processe of time doth double the principall there Vsurie for the time to come doth cease and those particuler payments which afterwards do follow are reckoned in the principall What kind of men are to be chosen Bishops such as are sound in faith of honest life conuersation and are learned that such as choose them sweare before the choice they shall neyther choose any for any reward promise friendship or any other sinister cause whatsoeuer but for his worthynesse and good parts only That none be ordeined by Symonie and if there be that both the giuer taker and mediator thereof be punished according to the Ecclesiasticall Lawes and they all made vnworthie to hold or inioy any Ecclesiasticall liuing hereafter That if any at the time of any Bishops election obiect any thing against him that is to be elected the election be staid till proofe be made of that which is obiected by the aduersarie against the partie elected so that he prooue the same within 3. Moneths and if any procéeding be to the consecration of of the same Bishop in the meane time it is void That the Bishop after he is ordeyned may with out any danger of Law giue or consecrate his goods to the vse of the Church where he is made Bishop and that he may giue such fées as are due to the electors by Law or custome That Clerks be not compelled to vndergoe personall functions and seruices of the common wealth and that they busie not themselues in seculer affaires so thereby be drawen from theyr spirituall function That Bishops for no matter or cause be drawen before a temporall Iudge without the Kings speciall commaundement and if any Iudge presume to cal any without such speciall warrant the same is to loose his office and to be banished therefore That no Bishop absent himselfe from his Dioces without vrgent occasion or that he be sent for by the Prince and if any doe absent himselfe aboue one yeare that he shall lack the profit of his Bishopricke and be deposed from the same if he retorne not againe within a competent time appointed for the same What manner of men are to be made Clerks such as are learned are 〈◊〉 good Religion of honest life conuersation and are frée from suspition of incontinency that no Minister be lesse then 35. yeares of age and that no Deacon or Subdeacon be vnder 25. that all Clerks and Ministers be ordeyned fréely If any build a Church and indow the same that he may present a Clerk thereto so that he be worthy to be admitted therto but if he present an vnworthy man then it appertaineth to the Bishop to place a worthy man therein If any Clerke be conuicted to haue sworne falsely he is to be depriued his office and further to be punished at the discretion of the Bishop That Clerks be conuented before their owne Bishops and if the parties litigant stand to the B. order the Ciuill Iudge shal put it in execution but if they agrée not vpon the iudgement then the Ciuill Iudge is to examine it eyther to confirme or infirme the B. order if he confirme it then the order to stand if not then the party grieued to appeal If the cause be criminall and the Bishop find the party guiltie then the Bishop is to degrade him and after to giue him ouer to the seculer power the like course is to be held if the cause be first examined before the temporall Iudge and the partie found guiltie for then he shall be sent to the Bishop to be depriued and after againe shall be deliuered to the seculer powers to be punished That Bishops be conuented before their Metropolitans That such as in Seruice time do abuse or iniure the Bishop or any Clerk in the Church being at diuine Seruice be whipt and sent into banishment But if they trouble thereby the diuine Seruice it selfe they are to dye the death for the same That Lay men are not to say or celebrate diuine Seruice without the presence of the Minister and other Clerkes thereto required That such as goe to Law sweare in the beginning of the suit that they haue neyther promised or will giue oght to the Iudge and that vsuall fées be taken by the Aduocates Counsellers Procters or Attournies if any man take more than his ordinary fées he shall be put from his place of practise and forfeit the foure double of that he hath taken That the 4. generall Councels be holden as a Law and that which is decréed in them That the B. of Rome hath the first place of sitting in all assemblies and then the B. of Constantinople That all Clergie mens possessions be discharged from all ordinary and extraordinary payments sauing from the repairing of Bridges and High wayes where the said possessions do lye That no man buyld a Church or holy place without the leaue of the B. and before the Bishop there say Seruice and set vp the signe of the Crosse That no man in his owne house suffer Seruice to be said but by a Minister allowed by the Bishop vnder paine of confiscating of the house if it be the Lord of the house that presumeth to doe it or banishment if it be done by the tenant If any bequeath any thing to God it is to be paied to the Church where the Testator dwelled If any deuise by his last Will a Chappell or Hospitall to be made the Bishop is to compell the Executors to performe it within fiue yeares after the decease of the Testator and if the Testator name any gouernor or poore thereto they are to be admitted vnlesse the Bishop shall find them vnfit for the roome That the Bishop sée such Legacies performed as either are giuen for the redemption of Prisoners or for other godly vses That Masters of Hospitals make an accompt of their charge in such sort as Tutors doe That such as lust against nature and so become brutish receiue condigne punishment worthy their wickednesse That such as
titul C. de quadrienni◠prescript l. bene for albeit the propertie of things may bee got by many meanes as wel by the law Ciuile as by the law of Nations yet is it not a thing so easie to bee proued for that there must concur many things to the proofe of a propertie otherwise you shall faile in your suit as in a case of bargaine and saile that there was such a contract betwéene the buyer and the seller that there was either money paid for it or that he that sold it was content to take the buyers word for it that deliuerie was made thereof otherwise the C. de acquirend possess l. 1. ext c. 1. de consuetudin propertie passeth not but only in some few cases in which neither possession nor deliuerie is required Lastly that hee which sold it was rightfull owner of it otherwise can he not passe ouer a thing he had no right vnto The Lordship or propertie of things is bipartite for either it is direct or full such as men haue when they haue not only the thing it selfe whereof they are Lords or Proprietaries but also the vse and commoditie therof or els it is profitable as is the hold of Tenants and Farmers who haue the vse gaine and possession of the thing but the Lord the propertie and rent in acknowledgement of his right and Soueraigntie The Possessorie is that right wherby the vse or possession of a thing is claimed of which there be thrée sorts for it is either in getting of the possession of that a man hath not or in kéeping of the possession of that a man hath or in recouering and regaining of the possession of that which is lost The procéeding in all these Ciuile matters is by Libell concluding to the action the partie agent giuing caution to prosecute the suite and to pay what shall be iudged against him if he faile in the suite the Defendant on the contraris part securing his aduersarie by sufficient suertie or other caution as shall séeme méete for the present to the Iudge that he will appeare in Iudgement and will pay that which shall be adiudged against him and that hee will ratifie and allow all that his Proctor shall doe in his name for to all these ends satisdation in Iudgement is which is nothing els but a course to secure the aduersarie of that which is in debate before the Iudge that on what side soeuer the cause shal haue an end the clyents may bee sure to get that which by law shall be adiudged vnto them And so much of those matters wherof the Ciuile law here in England vsually holdeth plée Now of the Criminall matters which belong to that Court but yet by way of Commission from the prince and that is that horrible crime of Pyracie detested of God and man the actors wherein Tully Cicer. 3. lib. off calleth Enemies to al and to whom neither faith nor oath is to be kept Piracie is called of the gréeke word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is Deceptio in latine and in English Deceipt for that many times they pretend friendship when they intend nothing els but robberie and bloudshed or they are so termed of the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is of their wandring vp and downe and resting in no place but coasting hither and thither to doe mischiefe A Pyrat is a sea-théefe who for to inrich himselfe either by subtilty or open force setteth vpon Marchants others trading by sea euer spoiling them of their loading if they get the vpper hand and sometimes bereauing them of their life and sinking of their ships The proceeding in these Criminall matters is by accusation and information and after by triall of twelue men vpon the euidence according to the lawes of this land and the lawes of the auncient Feudes of Lombardie where the like triall is and from whence it seemeth this of ours was first deriued But here must we note that matters of reprisals are no Pyracies although many times there fals out no lesse outrage in them for spoiling and slaying of men than doth in the other for that Reprisals are done by the princes commission graunted to the subiect for redresse of some iniurie done to himselfe or his subiect by some other forraine Prince or Subiect and amends hath bin required by law and cannot be had whereupon licence is giuen to the subiect to relieue himselfe by what way he can against the other Prince or any of his subiects by taking so much goods of his as himselfe was indamaged which course is held among Princes the rather to affoord Iustice where it is lawfully demaunded Bartol l. nullus num 2. C. de Iudaeis Caelicolis And thus much of the causes whith ordinarily do belong vnto the cognisance of the Ciuile law within this land Now it followeth that I speake somewhat of those things wherein the Ciuile Law dealeth incidently and by authoritie of the Prince is not the ordinarie obiect of the Ciuile Law howsoeuer otherwise they cannot be handsomely dealt in but by such as haue the skill of the Ciuile Law Wherof there be thrée sort the first is matters of forraine treatie betwéene one prince and another the second is the ordering of martiall causes whether they bee Ciuile or criminall in an Armie the last is the Iudgements of ensignes and Armes and the decisions for challenges of rights of Honour and precedencie where any of them is in controuersie For the first wheras all other Nations in compasse round about vs be gouerned by the Ciuile Law and treaties are to be decided by law both for those things which are in question and to be concluded by Law for those things which are determined by consultation and agréed vpon who is therto to be chosen rather than a Ciuilian to whom their law is knowne as well as to themselues and if perhaps he vnderstand not their language yet hee vnderstandeth that language wherein the lawes themselues are written and is the fittest tongue for treatises betwéene Princes and Princes because it is a common tongue to the learned of all the west part of the world and thereby euery Prince shall retaine his owne maiestie in parlying as it were in his owne language and not be forced to speake in another Princes tongue which no doubt is a great disaduantage to him that shall treat for that euery Nation hath some proper Idiom not so wel discerned by the booke-speaker as perceiued by the Natiues of the country where it is spoken and wherein a stranger may easily bee deceiued How much forraine Princes doe esteeme of the skill of a Ciuilian in these matters it may bee vnderstood thereby that they neuer for the most part send any Embassage for the treatie of any league or matter of commerce but that one or moe of them are Ciuilians And if the care of these things bee so great with them surely the estimation of the same ought not to
like former precedents but needed euery one almost a newe decision And the cause why Princes in the beginning granted to Clergy men these causes and their Consistories for from Princes were deriued in the beginning all these authorities as also the Religion it selfe is setled and protected in Kingdomes by Princes before there can be had a frée passage thereof was one that the Clergie men thereby might not be drawen from their prayer and exercise of diuine seruice to follow matters of suites abroad secondly that they were like to haue a more speedy and better dispatch and more indifferency before a Iudge of their owne learning than before a Iudge of an other profession for this is true and euer hath bin and I feare euer wil be vnto the end that is said in the glosse and is in common saw Laici opido semper infesti sunt Clericis Lastly that Clerks suits quarrels should not be diuulged and spread abroade among the lay people that many times to the great discredit of the whole profession specially in crimminall matters wherein Princes aunciently 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 publike disgrace before he was degraded by the Bishop and his Clergie and so was executed 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 reuerent worthy the dignity of the Ministerie whose office is most honorable also for that it is more auncient than any Papisticall immunitie is The third and last reason that moues me that I should beléeue that these Titles sometimes were here in exercise among vs in the Ecclesiastical Courts is that I find Glanuill Glanuill lib. 12. cap. 15. de Legibus Angliae who himselfe liued vnder Henry the second and was Lord chiefe Iustice of England in his daies sort to the Ecclesiasticall Courts the plea of Tenements where the suit is betwéene two Clerks or betwéene a Clerk and a Lay man and the plea is De libera eleemosina feodi Ecclesiastici et non petitur inde recognitio whether the frank fée be lay or Ecclesiasticall where also is further added that if it be found by the Idem lib. 13. cap. 25. verdict of legall and sufficient men that it is of Ecclesiastical fée it shall not be after drawen to lay fée no though it be held of the Church by seruices thereunto due and accustomed secondly whereas land is demaunded in marriage by the husband Idem lib. 7. cap. 18. or the wife or their heire and the demaund be against the giuer or his heire then it shal be at the choice of the demaunder whether he will sue for the same in the court Christian or in the secular Court For saieth he it pertaineth vnto the Ecclesiasticall Courts to hold plea of dowries which he calleth Maritagia if so be the plaintife so make choice of those Courts for the mutuall affiance that is there made betwéene the man the wife for marriage to be had betwéene them there is a dowry promised vnto the man by the womans friends neither shall this plea be caried vnto the temporall Courts no though the lands be of Lay fée so that it be certein the suit is for a Dowry but if the suit be against a stranger it is otherwise thirdly the Kings prohibition forbidding Anno 24. Ed. 1. the Clergie the dealing in many things which are of lay fée forbids them no one thing that is of Ecclesiasticall fée and to shew the Princes meaning precisely therein that it was not his intent by that Prohibition to restraine the Ecclesiasticall Iudges for procéeding in matters of Ecclesiasticall fée he sets downe in very tearmes these words Recognisances touching Lay fée as though he would hereby signifie to all men that he would not touch matters of Ecclesiasticall fée which did then wholy properly appertaine to the triall of the Christian Court as hath bin before vouched out of Glanuill who for the place he then held may be thought to haue knowen the Lawes of England as then they stood and the right interpretation thereof aswell as any man then or now lyuing And yet because there were some things of Lay fee which the Clergie then had cognisance of as yet they haue in some measure as causes and matters of Money chattels and debts rysing out of Testaments or Matrimonie because he would haue whatsoeuer belonged to the Clergie to be vndoubted excepteth them from those things which belong to the Crowne and dignitie and leaueth them to the ordering of the Christian Courts which is nothing else but an affirmance of that which Glanuill and the rest of the auncient English Lawyers Bracton and Britton said before Lastly the prouinciall Constitution Aeternae de poenis made in the dayes of Henry the 3. plainly shewes that in those dayes all personall suits betwéene eyther Clerke or Clerke or betwéene Lay men complaynants and Clerkes defendants for euer the Plaintife must follow the Court of the Defendant which to the Ecclesiasticall men then was the Ecclesiasticall Court were tried by the Spirituall Law and not by the Temporall Law which practize for that it doth accord with the iudgement of those auncient Lawyers that haue bin before cited and with the Prohibition it selfe which there restraineth only calling of Lay men to make recognisances of matters of Lay fée it may be a great argument that these things were of the Ecclesiasticall right in those dayes from which I sée not how the Ecclesiasticall Courts are falne for I sée neither Law nor Statute to the contrarie vnlesse perhaps they will say the Statute of the 25. H. 8. cap. 19. 25. of H. 8. cap. 19. toke the same away as being hurtfull to the kings Prerogatiue royall repugnant to the Lawes Statutes and Customes of this Realme which whether they be or be not taken away by the stroak of that Statute I leaue it to men of better experience in these matters than my selfe to iudge But yet this I find by experience to be true That where there are two diuers Iurisdictions in one Common wealth vnlesse they be carefully bounded by the Prince an equall respect carried to both of them so far as their places and the necessarie vse of them in the Common wealth requires as the aduancement of the one increaseth so the practize of the other decreaseth specially if one haue got the countenance of the State more than the other which is the only cause at this day of the ouerflowing of the one and the ebbing of the other but it is in his Sacred Maiestie to redresse it not by taking away any thing from that profession that is theirs but by restoring to this profession that which is their owne but hereof 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 For
the rest of the matters that belong to the triall of the Ecclesiasticall Courts some are acknowledged to be absolutely in vse some other are challenged to be but in a certein measure in vse In absolute vse are those which neuer had any opposition against them which almost are those alone which belong to the Bishops degrée or order for all things which come within the compasse of the Ecclesiasticall Law are either belonging to the Bishops degrée or his Iurisdiction To his degrée or order belong the ordering of Ministers and Deacons the confirmation of Children the dedication of Churches and Churchyards and such like none of which haue béen challenged at any time to belong to any other Law The second sort is of them that belong to the Bishops iurisdiction which is partly voluntarie partly litigious Voluntarie is when those with whom the dealing is stand not against it but litigious it is when it is oppugned by the one part or the other Of this latter sort many things in sundry ages haue bin cald in question but yet rescued and recouered againe by the wise graue Iudges themselues who haue found the challenge of them to be vniust But what doth belong to either of them in priuat or what causes do appertaine to the whole Iurisdiction in generall because they haue bin alreadie particulerly set downe by that famous man of worthy memory Doctor Cosin in his learned Apologie for certaine Cos in in his Apologie part 1. c. 2. procéedings in Ecclesiasticall Courts I will not make a new catalogue of them but send the Reader for the knowledge thereof vnto his Booke but yet in my passage will I note which of them haue bin most chiefly oppugned and as occasion shall fall out speak to them And thus much as concerning those parts of the Ecclesiasticall Law which are here in vse with vs Now it followeth to shew whereby the exercise of that Iurisdiction which is granted to be of the Ciuile and Ecclesiasticall cognizance is defeated impeached by the Common Law of this Land which is the third part of this Diuision The impeachment therefore is by one of these meanes by Praemunire by Prohibition by Iniunction by Supersedeas by Indicauit or Quare impedit but because the fower last are nothing so frequent nor so harmfull as the others and that this Booke would grow into a huge volume if I should prosecute them all I will only treat of the two first and put ouer the rest vnto some better opportunitie A Praemunire therefore is a writ awarded out of the kings Bench against one who hath procured out any Bull or like processe of the Pope from Rome or elsewhere for any Ecclesiasticall place or preferment within this Realme or doth sue in any forteine Ecclesiasticall Court to defeat or impeach any Iudgement giuen in the Kings Court whereby the bodie of the offender is to be imprysoned during the Kings pleasure his goods forfeyted and his lands seized into the Kings hand so long as the offender liueth This writ was much in vse during the time the Bishop of Romes aucthoritie was in credit in this land and very necessary it was it should be so for being then two like principal authorities acknowledged within this Land the Spirituall in the Pope and the Temporall in the King the Spirituall 25. Edw. 2. 27. Edw. 3. ca. 1. 38 Edw. 3. ca. 1. 2. 7. Rich. 2. ca. 12. 13. Rich. 2. ca. 2. 2. H. 4. cap. 3. grew on so fast on the temporal that it was to be feared had not these statutes bin prouided to restraine the Popes interprises the spirituall Iurisdiction had deuoured vp the temporall as the temporall now on the contrary side hath almost swallowed vp the spiritual But since the forreine authoritie in Spirituall matters is abolished and eyther Iurisdiction is agnised to be setled wholy and only in the Prince of this land sundry wise mens opinion is there can lye no Praemunire by those Statutes at this day against any man exercising any subordinat Iurisdiction vnder the King whether the same be in the kings name or in his name who hath the same immediatly from the King for that now all Iurisdiction whether it be Temporall or Ecclesiasticall is the Kings and such Ecclesiasticall Lawes as now are in force are called the Kings Ecclesiasticall Lawes and the Kings Ecclesiasticall Courts For that the King cannot haue in himselfe a contrarietie of Iurisdiction fighting one against the other as it was in the case betwéene himselfe and the Pope although he may haue diuersitie of Iurisdiction within himselfe which for order sake and for auoyding of confusion in gouernment he may restraine to certeine seuerall kinds of causes and inflict punishment vpon those that shall go beyond the bounds or limits that are prescribed them but to take them as enemies or vnderminers of his state he can not for the question here is not who is head of the cause or Iurisdiction in controuersie but who is to hold plea thereof or exercise the Iurisdiction vnder that head the Ecclesiasticall or temporall Iudge Neyther is that to moue any man that the Statutes made in former time against such Prouisors which vexed the King and people of this land with such vniust suits doe not onely prouide against such processe as came from Rome but against all others that came elsewhere being like conditioned as they for that it was not the meaning of those Statutes or any of them thereby to taxe the Bishops Courts or any Consistory within this land for that none of them euer vsed such malepert sawsinesse against the King as to call the Iudgements of his Courts into question although they went far in strayning vpon those things and causes which were held to be of the Kings Temporall cognisance as may appeare by the Kings Prohibition thereon framed And beside the Archbishops Bishops and other Prelats of this Land in the greatest heat of all this businesse being then present in the Parliament whith the rest of the Nobilitie disauowed the Popes insolencie toward the King in this behalfe and assured him they would ought to stand with his Maiestie against the Pope in these and all other cases touching his Crowne and Regalitie as they were bound by their allegeance so that they being not guilty of these enterprises against the King but in as great a measure troubled in theyr owne Iurisdiction by the Pope as the King himselfe was in the right of his Crowne as may apppeare out of the course of the said Statutes The word Elsewhere can in no right sence be vnderstood of them or their Consistories although some of late time thinking all is good seruice to the Realme that is done for the aduancement of the Common Law and depressing of the Ciuill Law haue so interpreted it but wythout ground or warrant of the Statutes themselues who whollie make prouision against forreine authoritie and speak no word of domesticall proceedings But
the same word Elsewhere is to be ment and conceiued of the places of remoue the Popes vsed in those dayes being somtimes at Rome in Italy sometimes at Auignion in France semetimes in other places as by the date of the Bulls and other processe of that age may be séene which seuerall remoues of his gaue occasion to the Parliament of inserting the word Elsewhere in the bodie of those Statutes that thereby the Statutes prouiding against Processe dated at Rome they might not bée eluded by like Processe dated at Auignion or any other place of the Popes aboade and so the penaltie thereof towardes the offender might become voyd and be frustrated Neyther did the Lawes of this Land at any time whiles the Popes authoritie was in his greatest pride wythin this Realme euer impute Praemunire to any Spirituall Subiect dealing in anie Temporall matter by any ordinarie power wythin the land but restrained them by Prohibition only as it is plaine by the Kings Prohibition wherein are the greatest matters that euer the Clergie attempted by ordinarie and domesticall authoritie and yet are refuted only by Prohibition But when as certeine busie-headed fellowes were not content to presse vpon the kings Regall iurisdiction at home but would séek for meanes for preferment by forrein authoritie to controul the Iudgements giuen in the kings Courts by processe from the Pope then were Premunires decréed both to punish those audacious enterprises of those factious Subiects and also to check the Popes insolencie that he should not venter hereafter to enterprise such designements against the King and his people But now since the feare thereof is past by reason all entercourse is taken away betwéene the Kings good Subiects and the Court of Rome it is not to be thought the meaning of good and mercifull Princes of this land is the cause of these Statutes being taken away the effect thereof shall remaine and that good and dutifull subiects stepping happily awry in the exercise of some part of their Iurisdiction but yet without preiudice of the Prince or his Regall power shall be punished with like rigor of Law as those which were molesters gréeuers and disquieters of the whole estate But yet notwithstanding the edge of those Premunires which were then framed remaine sharpe and vnblunted still against Priests Iesuits other like Runnagates which being not content with their owne natural Princes gouernment séek to bring in againe that and like forrein authoritie which those Statutes made prouision against but these things I leaue to the reuerend Iudges of the land and others that are skilfull in that profession onely wishing that some which haue most insight into these matters would adde some light vnto them that men might not stumble at them and fall into the daunger of them vnawares but now to Prohibitions A Prohibition is a commaundement sent out of some of the Kings higher Courts of Records where Prohibitions haue bin vsed to be graunted in the Kings name sealed with the seale of that Court and subscribed with the Teste of the chiefe Iudge or Iustice of the Court from whence the said Prohibition doth come at the suggestion of the Plaintife pretending himselfe to be grieued by some Ecclesiasticall or marine Iudge in not admittance of some matter or doing some other thing against his right in his or their iudiciall procéedings commaunding the said Ecclesiasticall or marine Iudge to proceed no further in that cause if they haue sent out any censure Ecclesiasticall or Marine against the plaintife they recall it and loose him from the same vnder paine of the Kings high indignation vpon pretence that the same cause doth not belong to the Ecclesiasticall or Marine Iudge but is of the temporall cognisance and doth appertaine to the Crowne and dignitie Prohibitions some are Prohibitions of Law some other are Prohibitions of fact Prohibitions of Law are those which are set downe by any Law or Statute of this Land whereby Ecclesiasticall Courts are interdicted to deale in the matters therein contained such as are all those things which are expressed in the kings Prohibition as are also those which are mencioned by the second of Edward the sixt where Iudges Ecclesiasticall C. 13. 2. Edw. 6. are forbid to hold plea of any matter contrarie to the effect intent or meaning of the statute of W. 2. Capite 3. The statute of Articuli Cleri Circumspecte agatis Sylua Cedua the treaties De Regia Prohibitione the Statute Anno 1. Edwardi 3. Capite 10. or oght else wherein the Kings Court ought to haue Iurisdiction Prohibitions of fact are such which haue no precise word or letter of Law or Statute for them as haue the other but are raised vp by argument out of the wit of the Deuiser These for the most part are méere quirks and subtilties of law and therfore ought to haue no more fauour in any wise honourable or well ordered Consistorie than the equity of the cause it selfe doth deserue for such manner of shifts for the most part bréed nought else but matter of vexation and haue no other commendable end in them though they pretend the right of the Kings Court as those other Prohibitions of the law doe but the Kings right is not to be supposed by imagination but is to be made plaine by demonstration and so both the Statute of the 18. of Edward the third Capite 5. is where it is prouided no Prohibition shall goe out but where the King hath the cognisance and of right ought to haue and also by the forenamed Statute of Edward the sixt which forbids that any Prohibition shall bee graunted out but vpon sight of the libell and other warie circumstances in the said Statute expressed by which it is to bee intended the meaning of the Lawgiuers was not that euery idle suggestion of euery Attorney should bréed a Prohibition but such onely should bee graunted as the Iudge in his wisdome should thinke worthy of that fauour and of right and equitie did deserue it although as I must déeds confesse the Statute is defectiue in this behalfe for to exact any such precise examination of him in these cases as it is also in other points and is almost the generall imperfection of all statutes that are made vpon Ecclesiasticall causes but I feare me as emulation betwéene the two lawes in the beginning brought in these multitudes of Prohibitions either against or beside law so the gaine they bring vnto the Temporall Courts maintaineth them which also makes the Iudges they cesse not costs and damages in cases of of Consultation although the statute precisely requires their assent and and assignement therin because they would not feare other men from suing out of Prohibitions and pursuing of the same The Prohibitions of the law as haue beene before shewed are neither many nor much repined at because they containe a necessarie distinction betwéene Iurisdiction and Iurisdiction and imply the kings right and subiectes benefit but the
the Councell that reformed it and was holden vnder Alexander the third was not celebrated before the yeare of the Incarnation 1189. neither was the reformation therof at that time totall nor suitable to the first institution of Tythe among Christians For neither could many wilfull and refractarious persons be then brought to obey the Canons of the Councell in restoring any part thereof againe vnto the Church although they were charged so to doe vnder paine of damnation Neither did all such as did then restore them restore them to the Churches from whence they were taken which had béene most agréeable to the ordinance of the Church set downe by Dionysius who first diuided Parishes and assigned vnto them Tythes as hath béene aforesaid and also to the Scripture it selfe from whence Dionysius tooke his light to diuide Parishes and dispose of Tythes as hee did by which it was not lawfull for him that paid his Tythes to pay them to what Priest or Leuite Deuteron 18. him liked but hee must pay them to the Priest or Leuite that dwelt in the place where himselfe made his aboad but yet this libertie that was giuen them by the Councell then gaue cause vnto the errour that the common Lawyers hold at this day not knowing the auncient procéedings of the Church in these cases that before the Lateran Councell it was lawfull for euery man to giue his Tythes to what Church he would which was so farre otherwise as that before this violence offered vnto the Church there was a flat Canon more auncient then the fact of Charles Martellus Leo. 4. 13. q. 1. c. Eccl. which did precisely forbid any man to pay or a Bishop to giue leaue to any man to pay his Tythes from the baptismall Church to another and that the contrary was yeelded to in the Lateran Councell was not that they held it lawfull to inrich one Church in this sort with the impouerishment of another but the cause was the hardnesse of mens hearts who scarcely could bee wun by this fauour to restore that little againe vnto the Church that their forefathers had in such abundance taken away from it and that the Fathers of the said Councell did yeeld thereunto although it were an inconuenience thus to doe was for that they did count although they did admit that for the present yet there might bee a better time found out after for the reformation thereof and so sustained the inconuenience for the present vpon this reason that the vniuersall Church of Christ is one bodie and euery particular Church a part of that bodie and so it lesse mattered to what particular Church they were restored so that they were restored at all for that by the restitution to one they hoped in time they might with more likelyhoode come vnto the other for in those things wherein there is an Identitie or like representation of Nature and condition as is betwéene Church and Church is easier passage the one from the other than is in those that are of different nature and disposition as is in a lay man and a Church Out of these ruines of these violent and presumptuous prescriptions which haue now obtained strength of a statute in the world haue issued out sundry petty prescriptions which also are confirmed by law and custom as the other were as the prescription wherein one Church prescribeth Tythes against another Church the Law punishing therein the negligence of the one and rewarding the vigilancie of the other Prescriptions wherein one Ecclesiasticall body corporate or politique prescribeth Tythes or other Ecclesiasticall duties against the Parson or Vicar of the Parish and the Parson and Vicar againe against them A prescription whereby a Lay man hauing no right to prescribe Regul sine posssessionâ—d regulâ—â— iâ—ris in 6. Tythes because he can in no right possesse Tythes and prescription cannot procéed without possession doth notwithstanding by pernancie or giuing some part of his ground or pension in money in licu thereof prescribe a discharge therof A prescription wherein a lay man doth prescribe the manner of Tything which albeit by the coÌ„mon Law is counted to be good by paying a thing neuer so small in lieu thereof yet neither by the Canon Law neither by the Law of God it selfe it could euer be lesse than the iust tenth it selfe so that the manner of Tything with them is not vnderstood in that sence as the Common Lawyers doe take it by paying any thing whatsoeuer in place of the iust tenth but their intendment hereby is that no country can be bound to an vniformitie Liâ—wod Prouin quâ—â—am verbo vnâ—formâ—â— in Glo. de decim of payment of Tythes to be vsed euerywhere but euery man is to pay Tythes according to the manner of the Country where he dwels that is that one paies his Tythe corne and binds vp the same in sheaues another leaues it scattered in the furrowes another Tythes it in Cocks or Pookes and this is that that they meane that there cannot be an vniformitie of Tything prescribed to euery man after which he is of necessitie to set out his Tyths but that he may prescribe some other manner of Tything against the Parson or Vicar but against that vniformitie that the whole tythe â—â—d verbo consâ—â—tudines should not be paid was neuer any prescription allowed among them for they euermore haue beene of this minde contrary to that that the Schoolemen hold that Tythes are part of the Morall Law and not of the Iudieiall or Ceremoniall Law and that in the Precept of Tythes there is a double Ca. a nobis de decimis in Glos. consideration one of the honour of God whereby be retained tythes vnto himselfe in signe of his vniuersall Lordship ouer the whole world which is irremissable the other of the profit or vtilitie of man in that it concerns the prouision of the Minister in all ages which is vndispensable And yet notwithstanding all this the Ecclesiasticall Iudge admitteth all kinds of prescription beforenamed and according to the proofes thercon brought giueth sentence either to absolution or condemnation albeit the reuerent Iudges of the Land vpon an erronious report made in the eight yeare of Edward the fourth haue a conceipt to the contrarie viz. That no Ecclesiasticall Iudge will admit any Plea in discharge of Tythe or the manner of Tything as it is in their sence taken and therfore they hold whatsoeuer the defendant doth alledge in his suit for a consultation and namely that the Ecclesiasticall Iudge did allow of the Plaintifes Plea and allegation and did admit him to the proofes thereon without deniall are idle speeches and rather words of course than of effect and substance And therefore notwithstanding whatsoeuer is alledged by the Defendant as concerning the Ecclesiasticall Iudges well acceptance thereof it is counted nothing materiall by the Temporall Iudges for that they haue a preiudicate opinion of the Ecclesiasticall Iudge in these cases and therefore
great victorie that he got ouer this kingdome to haue appropriated thrée Parish Churches to the Abbey of Battaile which he buylt in memorie of his Conquest And whereas William his sonne had depopulated ouerthrowen sundry Churches in the new Forrest Henrie his brother by his Letters Patents gaue the Tithe therof to the Cathedrall Church of Sarum and annexed thereto xx other Churches in one day if the copie of that Record that I haue séene as concerning these appropriations be true yea the matter was gon so far in those dayes that euen Noble persons and other meaner men would commaund Corrodies and Pensions to their Chapleines and other seruants out of Churches and could not be redressed vntill such time as there was made a Statute to Aâ—no 1. Edw. 3. cap. 10. reforme it On the contrarie side that I should take it to be a deuise of the Pope I am moued thereto that I find euery of these orders of Religious men were confirmed by one Pope or other and as they confirmed them so it is like they made prouision for them and that most especially this way and that chiefly after the Lawes of amortisation were deuised and put in vre by Princes and thereupon it is that we finde sundry sorts of annexation made by Popes Bishops vnder Linwood c. licet bona memoria gloss in verb. asserunt non ligari de locato conducto them euery one in their Diocesse as some were made so far as concerned the Patronage only then had the Monks therein presentation only some other were made pleno iure and then might the Monkes both institute destitute therin without the Bishop and turne all the profit thereon to their owne vse reseruing onely a porcion to him that should serue the Cure there some other Churches did they graunt simply to them without any addition of full right or otherwise and then if the Church were of their owne foundation they might chuse the Incumbent being once dead whether they would put any other therein vnlesse perhaps the same Church had people belonging vnto it for then must they of necessity still maintaine a Curat there and of this sort were their Granges Priories those which at this day we call Donatiues but if it were of another mans foundation then was it otherwise To this also I adde that that the Pope euery where in his Decretals arrogateth this right vnto himselfe as a Prerogatiue of the Apostolike Sea to graunt these priuiledges to Religious orders to take and receiue Benefices at lay mens hands by the mediation of the Diocesan whose office it was to be a meane betwéene the Religious house and the Incumbent for an indifferent rate that neither of them should presse too much the one vpon the other Gloss in verb. de Decim and therefore in the beginning the vsuall rate that they set downe betwéene 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 aboue that rate But after by the couetousnesse of Monkes and Friers themselues and the remisnesse of the Bishops who had the managing of this businesse vnder the Apostolike Sea the Incumbents part came to so small a portion that Othobon c. quoniam de Appropriationibus Ecclesiarum Vrban the fifth by Othobon his Legate here in England in the yeare of Saluation 1262. was faine to make a Legantine whereby he forebad all Bishops of this Land to appropriat 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 susteine themselues or that the cause were so iust that it might be taken rather to be a worke of charitie than any inforcement against Law and that beside with this Prouiso as that if the new Proprietaries within sixe Monethes next after should not set out a competent porcion for the Minister of the fruites of the Benefice themselues should assigne out a sufficient maintenance thereout according to the quantitie and qualitie thereof Which constitution because it tooke not that effect that was hoped there were two Statutes made the one by Richard the second the An. 15. Rich. 2. cap. 6. An. 4. H. 4. cap. 12. other by his successor Henry the fourth both for the conuenable indowment of the Vicar there to doe diuine Seruice and informe the people and to kéepe hospitalitie among them Albeit most of these Appropriations were principally in Monkes and Fryers and such other Religious persons yet were not Bishops Seas and Cathedrall Churches altogether frée from them as I haue before shewed in the Cathedrall Church of Salisburie to whom Henry the first appropriated néere twentie Churches in one day And the Sea of Winchester which hath had two Benefices aunciently annexed to the Bishops table the Parsonage of Eastmeane and the Parsonage of Hambleden Neither do I doubt but the like was done in other Bishops Seas and other Cathedrall Churches if I had as good instruction to report of them as I haue had information to speake of these And so far as concerning the first effect of Priuiledges whereby sundry fat Benefices haue béene iniuriously drawen from their owne Churches and vnnaturally appropriated to Monkries and Fryeries and other seculer and Religious places which as I haue said hath béene partly the act of Lay men and partly of Ecclesiasticall men Now followeth the second effect hereof And that is the exemption of these Religious mens possessions from payment of Tythes which is a priuiledge of the Pope alone for Monkes aunciently paied Tythes of Ca. ex parte tua gloss in verb. laborum de decim their land before these priuiledges as other Lay men did But Pascalis the second casting a more fauorable aspect towards Monkes and other Religious men than any of his predecessors before time had done did order together with the Councell of Ments That neyther Monkes nor other Religious persons or any other that lyued in common should pay Tythes of their owne labors Which immunitie Fod in deaÌ„ gloc verb. laboris in processe of time Pope Adrian recald so far as it concerned the rest of the Religious persons and limitted it onely to the Cystertians Hospitallers Templers those which were of the order of S. Iohns in Icrusalem leauing onely to the rest fréedome from paying Tythes of landes newly broken vp and laboured wyth their owne hands and of their garden and of their cattell In which state the matter stood vntill Innocent the thirds dayes who although he were in no other point of better mould than the rest of the Popes were yet was he in this more pittifull towards poore Incumbents of Parish Churches than any of his predecessors had béene who séeing hereby the inconueniences of beggery and ignorance that grew vpon sundry of the Parochian Priestes by
matrimony or that I was borne after that my father and mother were lawfully married together in both which you sée there is a mariage confessed the question onely is of the priority or posteriority of the natiuitie of him that is charged withall whither it hapned before or after his parents marriage which as they hold is the other member of speciall bastardie and yet this prioritie or posterioritie of natiuitie by vertue of the Kings writ comes no lesse in inquirie to the Ordinary in the case of the generall bastardie than they make it to be trauersable in the speciall bastardie and therfore the writ to the Ordinary for generall bastardie is conceiued in this manner viz. Inquiratis Lib. Intrac fol. 35. vtrum praedictus A. pars rea genitus vel natus fuit ante matrimonium contractum inter talem patrem suum et talem Gâ—anuill Lib. 7. cap. 15. matrem suam vel post So that eyther they must consesse there is no such bastardy as they make shew there is diuerse from that that is tried before the Ecclesiastical Iudge or that themselues do confound the members that should diuide the same and make them one or the other as them list for both simply they cannot be vnlesse they be distinguished with other notes and differences than hitherto I find they are But to say the truth if these things be well weyghed and considered speciall Bastardy is nothing else but the definition of the generall and the generall againe is nothing but the definite of the speciall for whosoeuer is borne out or before lawfull Matrimonie he is a bastard and he againe is a bastard that is borne before or out of lawful matrimony so that these things to be a bastard and to be borne out of lawfull matrimony are conuertible one with the other so then as it were very hard to make a diuorce betwéene these things that are so néere in nature one to the other being conuertible termes one to the other so hard again it were in policie to disioyne these things in triall that are so neere in affinitie one to the other because they are the same in substance nature as the other are and therfore eodem iure censeri debent 1â— q. ca. 2. cognoâ—imus then nè continentiae causaruÌ„ diuidantur which is no lesse absurditie in Law than it is a grosnesse in other learning to deny a principle or generall Maxime of the profession And so far hitherto as concerning the reasons arguments that may be brought against this speciall Bastardy Now it resteth that I shew by ancient precedents both these sorts of Bastardy haue appertained to the Ecclesiastical Courts only and the first precedent is in the incident the other in the principall and the precedent is no lesse auntient than Henry the seconds time as that which hapned vnder Alexander the third about the yeare of our Lord 1160. the case is this A certaine man of Norwich Diocesse called R. H. had issue Ca. Lator. ext qui filij sunt legitimi I. H. who had a sonne called C. H. I. H. deceasing before R. H. his father C. H. succéeded in his Grandfathers in heritance his said Grandfather being dead but M. H. brother to the said Grandfather pretending the said I. H. was a Bastard draweth the said C. H. into the Temporall Court vpon the inheritance whereupon C. H. called the said M. H. into the Bishop of Norwich his Court for the triall of his natiuitie but the Bishop long protracting the cause C. H. appealed to the Pope who delegated the same cause to the Bishop of Excester and the Abbot of Hereforde with order That if the said M. H. should not within two Monethes prooue that which he obiected against C. H. that then they should Intimate the same to the seculer Iudge before whom the inheritance was in question that he should not stay any longer vpon the question of legitimation but procéed to Iudgement in the cause of the inheritance Which president though it be long before the Statute of Bastardie made by Henry the 6. and so no writ went from the temporall Court for the certificat therof yet it shewes that the Temporall Iudges in those daies did not procéed to iudgement in the principall cause before the incident were decided by the Ordinary that they counted bastardy then to be of the Ecclesiast cognisance and that it was lawful for him that was preteÌ„ded to be a bastard to appeal from his Ordinary if either the Ordinary detracted the determination therof or were suspected of parciality And thus far of the incident There is an other much like precedent to this in the same Kings dayes but that is in the principall for that the inheritance came not first in question but the legitimation it selfe and the case is as followeth A certain man called Raphe kept one Analine the wife of one Ca. Causam ext qui filij sunt legitimâ— Allin by whom he was supposed to haue begot one Agatha who also being married had a sonne called Richard Raphe going beyond the Sea left Richard and his Mother Agatha in possession of all his goods lands but newes being after brought that the said Raphe was dead beyond sea Frauncis the brother of the said Raphe spoyled the said Richard of the possession of all the goods lands he had of the said Raphe his grandfather for that he did pretend the said Agatha his niece Mother of the said Richard was not borne of lawfull Matrimonie so that neither shée her selfe nor her sonne ought to succéed the brother of the said Frauncis but that the inheritance thereof did belong vnto himselfe whereupon the said Richard being thus spoiled by Frauncis his great vncle obtained letters of restitution to the Bishop of London the B. of Worcester the B. of Excester vnder this forme That before they entred into the principall cause which was this whether the said Agatha were borne in lawfull Matrimonie or not they should restore the said Richard to his Grandfathers inheritance But the Bishop of Rome after vnderstanding by the said Delegats that the plea of inheritance within this Realme did not belong vnto the Church but vnto the King recald that part of his rescript which concerned the restitution of the said Richard to his inheritance gaue order to the foresaid Bishops to procéed in the cause of legitimation willing them to inquire whether the said Agatha were borne of the said Aneline in the life time of her husband Allin and when shée dwelt cohabited with him as with her husband or whether the said Raphe father of the said Agatha kept the said Aneline openly publikely while the said Allin yet liued And if they found it to be so then they should pronounce her the said Agatha to be a Bastard for that Aneline her Mother could not be counted to be a wife but a whore which defyling her husbands bed
presumed to kéep company with an other her husband yet being aliue But if they found it otherwise then they should pronounce her the said Agatha to be legitimate All which was done after the death of the said Raph and Aneline as the Decretall it selfe shewes Neyther was there any authoritie that opposed it selfe against that procéeding but held it to be good and lawfull though it were in tearmes of speciall Bastardy for then that which they now call speciall Bastardy was not borne Besides hereby it appeareth that the Ordinaries then did not only procéed in cases of Bastardy incidently that is when a suit was before begun in the Common Law vpon a triall of inheritance that by writ from the Temporall Courts but euen originally that to prepare way vnto inheritance or any other good that was like to accrue vnto a man by succession or to auoyd any inconuenience that might keep him from promotion as may appeare by this practize following Priests in the beginning of the Raigne of Henry the 3. Constitut Othâ—n innotuit de vxovatiâ— Ã Beneficijs amouendis yet married secretly their Children were counted capable of all inheritance and other benefits that might grow vnto them by lawfull Marriage so that they were able to proue that their parents were lawfully married together by witnesses or instruments which manie Children did eyther vpon hope of some preferment that by succession or otherwise was like to come vnto them or to auoid some inconuenience that otherwise might light vpon them for the want of that proofe some their parents yet liuing others their parents being dead and the procéedings before the Ordinarie was holden good to all intents purposes euen in the Common Law for otherwise they would not haue so frequented it for as yet there was made no positiue Law against Marriages of Priests or Ministers but the Church of Rome then plotting against it for that by that they pretended the cure of Soules was neglected the substance of the Church wasted and dissipated did by Otho then Legate a Latere to Gregory the 9. order by a Constitution that all such Ministers as were married should be expelled from their Benefices that their Wiues Children should be excluded from all such liuelyhood as the Fathers had got during the time of the Marriage either by themselues or by any middle person that the same should become due vnto the Church wherein they did reséed and that their children from that time forth should be disabled to inioy holy orders vnlesse they were otherwise fauorably dispenced withall which Constitution although it wrought to that effect to barre Priests for that time of their Marriage vntill the light of the Gospell burst out and shewed that that doctrine was erronious yet to all other effects the procéeding in the case of Bastardie stood good as a thing due to be done by holy Church And therefore Linwod comming long after in his Catalogue that he maketh of Ecclesiasticall causes reciteth Legitimation for one among the rest for that in those daies there was no dispute or practise to the contrarie And thus â—ar as concerning those things wherein the Ecclesiasticall Law is hindered by the Temporall in their proceedings contrarie to Law Statute and custome aunciently obserued which was the third part of my generall diuision Now it followeth that I shew wherin the Ecclesiastical law may be relieued so both the laws know their own bounds and not one to ouerbeare the other as they doe at this day to the great veration of the subiect and the intollerable confusion of them both which is the last part of this Treatise The meanes therefore to relieue the profession of the Ciuile Law are two The first is by the restoring of those things which haue bin powerfully by the Common Law taken from them the bringing of them back againe vnto their old and wonted course The other is by allowing them the practise of such things as are grieuances in the Common wealth and fit to be reformed by some court but yet are by no home-Law prouided for The first of these stands in two things whereof the one is the right interpretation of those Lawes statutes and customes which are written and deuised in the behalfe of the Ecclesiasticall Law The other consisteth in the correcting and supplying of such Lawes and Statutes that are either superfluous or defectiue in the penning made in the behalfe as it is pretended of the Ecclesiasticall profession but yet by reason of the vnperfect penning thereof are construed for the most part against them The right interpretation of the Lawes Statutes and Customes pertaining to the practise standeth as is pretended in the Iudges mouth who notwithstanding hath that authoritie from the Soueraigne and that not to iudge according as him best liketh but according as the right of the cause doth require The supply or reforming of that which is ouerplus or defectiue is in the Parliament so notwithstanding as that the Prince euermore breatheth life into that which is done Lawes Statuts or Customes are then best interpreted whenas the verie plaine and naturall sence of them is so sought after and no forraine or strained exposition is mixt with them for that turneth Iustice into wormewood and Iudgement into gall then that the Iudge be noÌ„t to subtill in his interpretation but follow such exposition of the Laws as men of former age haue vsed to make if they be not plainly absurd and erronious for oft shifting of interpretations bréedeth great variance in mens states among such as haue busie heads much discrediteth the Law it selfe as though there were no certainty in it with which although the sage Iudges of our time cannot bee charged for oght that I know yet I cannot tell how men much complaine that lawes are far otherwise construed in these daies than they were in former ages which as it is an ordinarie complaint in the Temporall Courts so it is not without cause much lamented at in the spirituall Courts where the interpretation vpon the thrée Statutes of Tiths made by King Henry the eight and Edward his son among sundry other inconstancies of other Lawes hath such great varietie of sence and vnderstanding in sundry points thereof as that if the makers thereof were now aliue and the first expositors therof sate in place of Iudgement againe the Statutes being measured by the interpretation they now make of them would hardly acknowledge them either to bee the Statuts that they made or the other did after expound and declare for euery of these Statutes and the sence that was giuen of them was wholy for the benefit of the Church according to the tenor thereof but as they now receiue explication they are not onely not beneficiall vnto the Church but the greatest hynderance to the same that may be for the words are made to iar with the sence and the sence with the words neither is there kept any right