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
the depth of the Sea Such as make false Certificats forge false Wils Depose false wittingly suborne witnesses take money either to say or not to say their knowledge of that which they are demaunded of in Iudgement corrupt Iudgement or cause it to be corrupted interline put in or rase out any thing out of any writing that the trueth thereof may not appeare as it was written suppresse Wils or Testaments or other like writings counterfait other mens hands and Seals openeth any mans Wil yet liuing and imparteth the secrets thereof to the parties aduersarie vnsealeth such instruments or writings as are left with him to kéepe bequeath vnto themselues Legacies in an other mans Will without his good will and priuitie wash or clip gold or sowder therein any corrupt mettals make base siluer money pretend themselues to bee Noble men or Gentlemen whereas otherwise they are but base persons wilfully challenge vnto themselues another mans name or Arms cog and foist in womens labours or otherwise false births or Adulterous children in stead of true and rightfull heires sell one and the same thing to two men carrie about false Pasports vse false Measures or corrupt those that are true in some cases are punished by death in other by banishment imprisonment or cutting of both or one of the hands of the offender If any bearing any publike office abuse the same to gaine and doth that for money which he ought to do for thanks the Law ordereth that the offender shall be called to accompt for his supposed briberie and if he bee found guiltie therof fineth him foure fold double to the partie grieued and beside decréeth him to be banished Such as by il deuises and policies raise vp the price of corne and other victuall or get the whole sale of any marchandise into their hands that they may sel it the dearer are punishable at the discretion of the Iudge which according to the qualitie of the person and fact reacheth sometimes to banishment sometimes to death it selfe If any take purloine or interuert to his owne vse any money dedicated to holy and publicke vses or cause the same to be taken purloyned or interuerted or if any take away any brasen table wherein any publicke Lawes are grauen or the bounds of any Lands are described or blot out or change any thing therof or couenously pay in lesse money into the Exchequer then by right he ought to haue done and hath not cléered with the Exchequer for the residue is to be condemned in the thrée double of that which is the residue and is beside to be banished If any to get an Office procure a number of hyred voices besides the losse of the Office hee sueth for his punishment is temporall banishment If any steale away any child the bodie of any fréeman and sell the same away or detaine them against their will the fault is death If any slanderously charge another with any false crime or wittingly beare any false witnesse against him or willingly giue any wrong Sentence against him or on the contrarie side dissembleth such faults as hee knoweth and colludeth with the aduersarie or giueth ouer the prosecution of a crime hee hath vndertaken to follow vntill hee haue leaue graunted him by the Iudge to desist from his accusation the same is to bee punished with the like kind of punishment that hee would haue the other punished by vnlesse hee bee acquitted therefro by the Princes Pardon or that the Aduersaris bee dead In publike Iudgements where the Offender appeares not Proces is to bee awarded out against gainst him for his apparance by a certaine day to cléere himselfe at which day if hee appeare not an Inuentory is taken of his goods not to the intent they should be spent but that they should be reserued to his vse if he returne againe within a yeare and cléere himselfe otherwise they become the Exchequers for euer how innocent soeuer the partie afterwards appeares to bee If the Offender be present in Iudgement and deny the fact he is to be confuted by witnesses or other proofe or if there be iust matter of suspition to bee put on the racke which albeit in matters of lesse daunger it is great crueltie yet in great and horrible crimes it is necessarie If the Offender haue either confessed the crime or be conuicted thereof then it followeth that the partie conuicted be punished either by death or otherwise according to the qualitis of the person or condition of the offence Punishments by death are foure Hanging Burning Heading and Casting the Offender to be deuoured by wild beastes amongst which may be reckoned Exile or Banishment for that it takes away a mans libertie and bereaues him of his country which to euery good subiect is as deare vnto him as his life it selfe Punishments which did not inflict death were many and such as it pleased the Magistrat in his discretion to appoint The Law hauing passed vpon the Offender in such sort as he hath lost his life libertie or countrie his goods became forthwith forfaited to the Prince such I meane as are of value but for the other the Law alloweth them the prisoner for his maintenance during the time of his imprisonment and satisfying such sées as are due to the Officers thereof which hath place where the offender hath no children otherwise the one halfe of his goods commeth to his children vnlesse it be in case of Treason where all is confiscated They are also held for conuict and guilty which either vpon a guiltinesse of minde make away themselues before Iudgement or stop their Aduersaries with a bribe that they shall not follow the Law against them and their goods are no lesse confiscat then the others But it is otherwise in those which are banished for a time or to a certaine place or in such as the Law hauing once passed vpon them are either in their life or after their death by the bountie and mercie of the Prince restored in which case they recouer Goods Name and Honour the body being executed the carcasse for the most part is graunted to buriall vnlesse it be for matter of Treason or other such like offence If any haue bin vniustly condēned either by the iniquitie or vnskilfulnesse of the Iudge the law alloweth him an appeal that is a prouocation to a higher Iudge that he may hear the cause anew reforme that which is Iudged amisse into better and if the higher Iudge find the partie grieued hath well appealed he is to reuerse the former sentence otherwise to send the Offender back to the Iudge from whence he came there to receiue his punishment yet some persons there be from whom no appeale lieth as from the Prince or Senat because they represent the Prince neither may hee appeale which hath renounced his appeale Appeales are made from lower Iudges to higher and from him that is Delegated to him that did Delegate Appeales are to be made within ten
of the children of the first husband by whom all or most of those goods came insomuch as many times those children when they come to age are to goabroad into the world they haue nothing to begin the world withal whereby many of them come to beggerie and others to more fearefull ends for necessitie as the Prouerb hath it is a hard weapon neyther is there any meanes in this common wealth to releeue this mischiefe for oght I can learne but by the Ciuile Law there is verie good remedy for by that Law neyther the woman suruiuing her husband neyther the man C. de secundiâ— nuptijs tot tit suruiuing his wife hauing issue betwéene them during the Matrimony haue the propertie of those goods which either of them brought one to the other and are left behind by the defunct but the propertie is the childrens of the deceased the vse or benefit his or hers only which doth suruiue during his or her naturall life which course if it were taken here in England manie poore fatherlesse and motherlesse Children would be in better state than they are for then howsoeuer their present state were hard yet their future would be better when they should be secured to inioy their fathers or mothers right neither could such men or women which marrie or are married with persons of this sort much complaine if this Law were established here for so should they haue though not a perpetuitie in an other mans state yet a long and beneficiall fruition thereof euen so long as the partie in whom they were interessed did liue but for the retorne thereof vnto the right owners the Law is so scrupulous that if the husband or wife doe remarry it will haue him that is to marry the widdow bound with good suerties for due restitution of the defuncts part vnto the children of the former marriage An other inconuenience there is in Executors in this land Cosen german to the former which goeth altogether vncontrouled whereby I gesse there is no Law in this land to correct it And that is the trifling of Executors in paying of Legacies and bequests vnder pretence of debts vnknowen which they make shew they must prouide for vpon danger of their owne indemnitie whereby many Legacies are neuer paied but stand as it were suspended vntil the day of Dome Against this abuse the Ciuile Law hath two remedies One by exacting bond of the Executor that he shall pay the Legacies L. 1. §. 1. 2. 3. ff vt legatorum nomine caueatur without fraud or deceit according to the will of the defunct The other that if he refuse so to do then the Iudge may put the partie complaynant in the possession of that which is demanded for it is not enough for the Heire or Executor to L. haec autem ff si cui plus quam per Legem falcidiam ff de regulis iuris L. vani timoris pretend a debt to the end that he may stay the legacies which the testator hath giuen in his hand but he must make plain manifest vnto the Iudge there is such a debt owing that the suit therupon is either already begun or very like to bee begun in verie short time without fraud or collusion otherwise many of those pretences threats may be vaine elusory And in case there be any such iust cause of feare in déed or there be any such suit in truth commenced vpon the same the L. Nisi si dolo §. si Legatarius ff si cui plus quam per legem falcidiam licuâ—rit Executor may secure himself by bond or suertie from the Legatorie that in case the debt be euicted of him he shal repay to the Executor what he hath receiued wherin although it may be said it is safer for the executor to secure himself by kéeping the Legacie stil in his hand than to trust vpon suerty or other caution for that these prouisions many times are fraile yet since this kind of dealing is iniurious to the Legatorie the withholding therof for the most part hath no honest defence but is grounded vpon deceit and couetousnesse it were behoosefull for the Common wealth such ill dealing were redressed for so mens Wils which are their last Ordinances than the which Princes haue granted no greater benefit to men than that in their life time they may dispose how their goods shal be bestowed after their death shall haue that end ff Si quis omissa causa testament L. nam facit totum l. 4 ff de haeredib instituend l. paterfamilias §. 3. the Testators themselues intended which if they had known in their life time their Executors would not haue performed they would neuer haue put them in trust as they did Beside hereby the names of Executors which now are charged with manifold imputations by the ill dealing of some shal by this means be vnburdened restored vnto their former credit which was to discharge the trust that by the Defunct was reposed vpon them for the Will of the defunct cannot bee defrauded without great sin An other mischiefe there is in Executors Administrators not only vncontroulable by the Law of this Land but rather allowed iustified by it that is when they haue once got the authoritie into their hands praysed all at the lowest rate they wil sell away all at the highest price they can answere the poore Children Legatories for whose good they were apointed Executors at the value in the Inuentarie only contrarie to all right reason for by the law an Executor is to sel ff de reb eoris qui sub tutela sunt sine decreto noÌ„ alienaÌ„dis vel obligaÌ„dis tot tit ibi Bartol in rubrica nothing of those things which are left vnto the Children or Legatories but such things only which by keeping cannot be kept or which being kept will be charge able to the inheritance or otherwise the Testator were so indebted that his state must needs be sold for the satisfying of the Creditors or lastly that he himselfe ordered by his Will something should be sold But for such things as may be kept by kéeping will not be the worse he oght precisely to preserue them specially where the Testator hath bequeathed any thing in kind And if he sel oght of those things which he ought not to sel he may not sel it but by the decree of the Iudge interposed vpon the same vpon iust cause proued before him wherin if it appear after the Iudge was abused by any false allegation corrupt testimony the sale is void the Minor when he comes to his ful age or within 5. years after may reuerse recouer that which is thus sold by collusion out of the hands of him to whom it was sold as being done against the authority of the law And that it may be better vnderstood how precise the law is in this