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
A VIEW OF THE CIVILE AND ECCLESIASTICAL LAW AND wherein the practise of them is streitned and may be relieued within this Land Written by THOMAS RIDLEY Doctor of the Ciuile Law Iura sua vnicuique professioni sunt seruanda alioqui nihil aliud erit quà m omnium ordinum confusio c. peruenit 11. q. 1. LONDON Printed for the Company of Stationers Anno. 1607. To the High and Mightie Prince IAMES by the grace of God King of great Britaine Fraunce and Ireland Defender of the Faith c. MOST gratious Soueraigne since it hath pleased your Maiestie of your Princely care towards the Church and your common wealth to take knowledge of some differences that are in Iudicature betweene your Ecclesiasticall and Ciuile Law and the Temporall Law of this Land by which ioyntly your Maiesties State is managed next after your owne most rare prouidence and the wisdom of such whom it hath pleased your Highnesse to associat vnto your selfe in the great affaires of your Kingdome I haue bin bold to offer vnto your Maiestie this simple Treatise as that which doth lay out the cause of those Differences more particulerly than any man hitherto hath expressed the same In comming to which because I doe speake for those parts of your Maiesties Laws which are lesse knowen vnto your people and esteemed no otherwise of them than they see the practise thereof to be here within your Land I haue thought good as it were in a briefe to set out the whole sum of both the Lawes to the view of the people that they may see there is more worth in those for whom I speake than was by many conceiued to be so that the profession of the Ecclesiasticall and Ciuile Law may appeare to the world neither to be ilde nor vnfit for the State so far as it hath pleased the Royall predecessors of your Highnesse to giue entertainment vnto it and your Maiestie your selfe to admit of it In al which there is no other thing sought than that such grieuances as haue bin of late offered by one Iurisdiction vnto the other and in consequence to all your subiects who follow any suits in the Ciuile or Ecclesiasticall Courts may by your Princely wisdome be considered and by your authoritie be redressed if they be found to be grieuances indeed for now as things are neither Iurisdiction knowes their owne bounds but one snatcheth from the other in maner as in a batable ground lying betweene two Kingdomes but so that the weaker euer goeth to the worse and that which is mightier preuailes against the other the professors thereof being rather willing to giue Lawes and interpretations to other than to take or admit of any against themselues For which the weaker appeales vnto your Highnesse humbly desiring your Maiesties vpright and sincere Iudgement to discerne where the wrong is and to redresse it accordingly which is a worke worthy your Maiesties high consideration For as the Land is yours so also the Sea is yours the Church is vnder your Highnesse protection as a child is vnder his Tutor so that all the Lawes therof appertaine vnto your Maiesties care and comfort alike For which not onely the whole profession of your Ecclesiasticall and Ciuile Lawyers that now are but those which shall succeed in those places for euer hereafter vnto the worlds end will praise and magnifie your Maiesties gratious fauour towards them and wee that now are will pray to God for the long and happie prosperitie of your Highnesse and your posteritie ouer vs during the continuance of this Heauen and this Earth and after the passing away therof a perpetual fruition of the new Heauen and the new Earth wherein righteousnesse onely shall dwell for euer Your Maiesties most humble and dutifull Subiect Thomas Ridley To the Reader GENTLE Reader I confesse as I meditated this Treatise vpon mine owne motion as I doe sometimes matters of other argument when my leasure serues me thereto so also I doe not set it out to the view of the world vpon mine owne motion but was desirous it should haue bin keept in sauing that I must obey where I am bound The thing that gaue me cause to this meditation was that I saw many times how meanly men esteemed of the Ciuile and Ecclesiasticall Law of this Land valuing them by the practise of so much of them as we haue among vs. And therefore I thought good although not wholy to vnfold the riches of them yet to make shew of them folded vp in such sort as Mercers make shew of their silkes and veluets laid vp in whole peeces in their shops whereby it may be seene what great varietie they haue of all these kind of wares although the goodnesse of the ware it selfe cannot be discerned because it is foulded vp Beside seeing how frequēt prohibitions are in these daies in causes of either cognisance more than haue bin in former time I thought it not vnworthy my labour to inquire and see vpon what iust grounds they are raised vp in this multitude not of any humour I haue to gaine say the lawfull proceedings of any court which I reuerēce most readily acknowledge their authoritie in all things belonging to their place but to know and search out the truth of those suggestions that giue cause vnto these prohibitions For whenas such Lawes as are written of these businesses are written indifferently as well for the one Iurisdiction as the other no man is to be offended if the one Iurisdiction finding it selfe pressed by the partial interpretation as it supposeth of the other inquire the groūd of such interpretation labour to redresse it if it may be by the right interpretation therof To the end that either Iurisdiction may reteine their owne right not the one be ouertopt by the other as it seemeth to be at this day And that in such matters as they cōceiue of their owne right as depend of no other authoritie but of the Prince alone which is the thing only that is sought in this little Treatise And therfore the Reuerend Iudges of this Land are to be intreated that they will vouchsafe an equal interpretation of these matters as well to the one Iurisdiction as the other for so it is comely for them to doe and if they doe it not the other are not so dull senced but they can perceiue it nor so daunted but that they can fly for succour vnto him to whose high place and wisdome the deciding of these differences doth of right appertaine PENELOPE is said to haue had many wooers comely in person and eloquent in speech but she respected none but her owne VLISSES Such should be the mind of a Iudge that whatsoeuer other apparance or shew of truth be offered one saying this is the true sence of the Law and another that yet the Iudge should respect none but the very true germane and genuine sence thereof indeed Which if it were religiously or indifferently obserued in euery
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
Iustices of Peace or other officers to that purpose appointed speedily dispatch the businesse of those which are of their Iurisdiction that such as come as strangers and forrainers out of other contries hauing no iust cause of their comming they send backe againe with their substance to such places as they came fro but if they be idle vagabonds and Rogues or other like valiant beggers they either driue them out of the place or compell them to labour yet euermore hauing regard to prouide for such as are honest poore old sick or impotent That Clerkes bee first conuented before their Ordinarie and that the Ordinarie do speedily end the matter that they may not be long absent from their benefices and that they be not drawne before temporall Iudges vnlesse the nature of the cause doe so require it as that it be a méere Ciuile cause or a criminal cause belonging wholy to the Temporal court wherein if a Clerke shall bee found guiltie he shall first bee depriued from his ministerie and then shall bee deliuered ouer into the Seculer hands but if the crime bee solely Ecclesiasticall the Bishop alone shall take knowledge thereof and punish it according as the Canons doe require That where one dieth without issue leauing behind him brethren of the whole bloud and brethren of the halfe bloud the brethren of the whole bloud haue the preheminence in the lands and goods of the deceased before the brethren of the halfe bloud whether they be of the fathers side or the mothers side That no man make Armour or sell it without the princes leaue vnlesse they bee kniues or other such like small weapons That proofe by witnesses was deuised to that end that the truth should not be concealed and yet all are not fit to be witnesses but such alone as are of honest name and fame and are without all supition of loue hatred or corruption and that their dispositions bee put in writing that after the witnesses bee published and their depositions bee knowne there bee no more production of witnesses vnlesse the partie sweare those proofes came a new vnto his knowledge If Parents giue profusely to one of their children the other notwithstanding shall haue their lawfull porcions vnlesse they be proued to be vnkinde towards their parents That women albeit they be debtors or creditors may be Tutors or Curators to their children and that there is not an oath to be exacted of them that they wil not marrie again so that they renounce their priuiledge graunted vnto them per Senatus consultū Velleian̄ and performe al other things as other Tutors doe That Gouernours of Prouinces are not to leaue their charges before they are called from thence by the Prince otherwise they incurre the danger of Treason That womens Dowries haue a priuiledge before all other kinds of debt that what Dowrie a woman had in her first marriage she shall haue the same in her second marriage neither shall it be lawfull for her father to diminish it if it return againe vnto his hand That a man shal not haue the propertie of his wiues dowrie neither a woman the propertie of that which is giuen her before marriage but the propertie of either of them shal come vnto their children yea though they marrie not againe Wils or Testaments made in the behoofe of children stand good howsoeuer imperfect otherwise they are but they are not auaileable for strāgers but strangers are they which are not children neither mattereth it whether the Will or Testament be writ by the fathers hand only or by some other body by his appointment as the father deuideth the goods among the children so they are to haue their parts Of Hereticks and that such are Hereticks which do refuse to receiue the holy Communion at the ministers hand in the Catholick Church that Hereticks are not to be admitted to roomes and places of Honor and that women Hereticks may not haue such priuiledge as other women haue in their Dowries That is called Mariners vsury that is wont to be lent to Mariners or Marchant men specially such as trade by sea which kind of lending the law calleth passage money in which kind of vsury a man cannot go beyond the 100. part That Churches inioy a 100. yards prescription That such things as are litigious during the controuersie are not to be sold away A Litigious thing is that whih is in suite betwéene the plaintife and defendant That while the suite dependeth there bee no Letters or Edict procured from the Prince concerning the cause in question but that the cause be decided according to the generall Lawes in vse That in Diuorces the children be brought vp with the innocent partie but at the charges of the nocent and that Diuorces bee not admitted but vpon causes in Law expressed That no woman whose husband is in warfare or otherwise absent shall marry againe before she haue certaine intelligence of the death of her former husband either from the Captaine vnder whom he serued or from the gouernour of the place where he died and if any woman marrie againe without such certain intelligence how long soeuer otherwise her husband be absent from her both she and he who married her shall be punished as adulterers and if her former husband after such marriage retorne back againe she shall returne againe to her former husband if hee will receiue her otherwise she shall liue apart from them both If any man beat his wife for any other cause than for which he may be iustly seuered or diuorced from her hee shall for such iniurie be punished If any man conceiue a iealousie against his wife as that she vseth any other man more familiarly then is méete shee should let him thrée seuerall times admonish him thereof before thrée honest and substanciall men and if after such admonition he be found to commune with her let him be accused of adultery before such Iudge who hath authoritie to correct such offences The ninth and last Collation containeth matter of succession in goods that as long as there be any descendent either Male or Female so long neither any ascendent or any collaterall can succeed and that if there be no discendent then the ascendent be preferred before the collaterall vnlesse they be brethren or sisters of the whole blood who are to succéed together with the ascendent but in ascendents those are first called which are in the next degrée to the deceased then after those which are in a more remote degrée that in collaterals all be equally admitted which are in the same degrée and of the same Parents whether they be male or female That the lands of any Church Hospitall or other like Religious place be not sold aliened or changed vnlesse it be to the Princes house or to or with an other like Religious place and that in equall goodnesse quantitie or that it be for the redemption of Prysoners and that they be not let out to any priuat
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
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
no action to the one to sue the other but yet the ancient practise of the Ecclesiastical Law hath remedy which would redresse all this mischiefe if it were cald againe to vse might go without controlment as the equitie of the cause doth require And the remedie is this that such other of the Executors or Administrators as are in this sort interuerted from the execution of the Wil or Administration by the subtiltie of any like Executor or Administrator should craue the assistance of the Iudge will him by vertue of his office to call in such practick Executor or Administrator and to commaund him vnder paine of excommunication he procéed no further in the sole execution therof but coÌ„municat all his acts dealings with the rest of his Coexecutors or Coadministrators which if it were so ordered would make many mens Wils Administrations better performed than they are a great sort of poore Orphans states more sure certaine than coÌ„monly they are in such executors or administrators hands And certainly in this case there is some good vse of Superuisors in dead mens Wils whom many men merily iest at calling them candle-holders as though they could do nothing else in the execution therof but hold the candle while the Executors tel the Defuncts money if they might be permitted to put in practise that authoritie which the Law giueth them and that is when they find any Executor deale fraudulently in the execution of any Testators Will wherin they are named superuisors or do ingrosse all the state of the Defunct into his hands as hath bin before said they cal him to a particuler accouÌ„t that it may be séen how the administration stands ech executor may coÌ„municat to other their particuler receits disbursments which if any shal refuse to do then may the superuisor make therof coÌ„plaint vnto the Iudge as though the ff de administratione tutoruÌ„ l. 3. §. 1. same man dealt not truly in the execution therof who though perhaps in the beginning could not take bond of him for the true execution of the Will because the Testator had made choice of him therin approued his faith that no man required caution of him for any Legacie in the wil bequeathed in which case the Iudge might take bond of him for security of such legacies as are bequethed in the wil yea though his faith hath bin approued by the Ordinary as hath bin before remembred yet may the Iudge in this case if he find him iustly susspected of fraud deceit remoue him by the learning of that Law For neither the Testator himselfe if hee were aliue Instit de suspectis tutorib vel curator toto tit againe would indure him in this case but would blot his name out of his Will neither ought the Iudge to suffer him whose care is to sée that dead mens Wils take their effect according to the Testators meaning All which the law hath prouision for and for infinit things else of like good order in these cases if they might be suffered to put them in execution without impeachment And so far as concerning those things wherein the Ciuile and the Ecclesiasticall Law might be relieued without preiudice to the common Law for because they haue no practise thereof and yet doe not I bring forth these as the onely causes wherein the Ciuill and Ecclesiasticall Law may be licenced to deale in ouer and besides the practise of those things that they haue alreadie but that these are few among many other which might be sorted out if so be there were any hope for the further enlargement of the profession But now to the necessitie of the maintenance of the ciuill and Ecclesiasticall Law in this Realme as they are now practised or ought to be practised which was a thing first propounded but last put in execution in this worke Albeit that which hath béene alreadie said as concerning the Ciuile and Ecclesiasticall Law may well imply the necessarie preseruation of them both within this Land yet because it was a thing I promised to shew in the beginning of this Treatise after I had gone ouer the rest of the parts of my diuision I will in a word or two make plaine the necessitie thereof And therefore for a ground of all the rest I will assume this for a matter confessed that euery man knowes that euery well ordered Common wealth stands on two parts principally the publicke part which consisteth of the Prince and people and the Ecclesiasticall part which standeth in Sacris Sacerdotibus And therefore well said the Emperor In authent quoÌ„ oportet epÌ„os in princ col 1. Auth. de non alienand rebâ—â— Eccl. c. §. 1. Two of the greatest things that God euer gaue vnto the world meaning earthly things was the Empire or seculer gouernment whereby the outward man is ordered made as Aristole saith bonus ciuis that is a good and loyall subiect and the Priesthood whereby the inward man is ruled and is made as the said author testifieth bonus vir that is a good and vertuous man which are two wonderfull effects of the whole gouernment in general neither can the one of these be wanting but the other will bee ruinated and brought to desolation Secondly no man is ignorant of this but in politicke gouernment two things sway the whole state the one is peace at home and the other is war abroad which as they haue their seasons so they haue their causes and effects the one from councell at home the other from discipline abroad neither can the one or the other of these be maintained but by their priuate and proper Lawes Beside in peace who séeth not there is as much néed of vent by sea for to benefit the common wealth by either by importation of those things that wee want at home or by exportation of those things that we abound with as there is prouision to be made for the increasing and preseruing of those things that we haue rising and growing by land in our owne contrey neither of which can be had or inioyed without their proper lawes fit and appertaining to either policie And what Law is there that ordereth these businesses but the Ciuile law onely which giueth a forme to Nauigation and all occurrents that happen by sea whether they bee in or about the Nauigation it selfe or the contracts or as it were contracts that are made in vpon or beyond the same As a Legall forme is requisite in peace at home and Marine affaires abroad that euery thing may haue his due effect according to the right thereof so also it is necessarie in warlike exploits vpon the Sea that euery action haue his limits and bounds wherby Iustice may be ministred which if it bee to bee obserued where lawfull war is held betwéene Prince and Prince that euery one bee not left vnto his own lust much more is it expedient to be put in vre in
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
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
ought to be od in number that if they disagrée that which is concluded by the greater part may preuaile An arbiterment is a power giuen by the parties Litigant to some to heare and determine some matter in suite betwéene them to pronounce vpon the same to which they are to bind themselues vnder a penaltie to stand The first Booke hauing set out the first obiect of the Law which standeth in the persons who make vp the Iudgemēt as in the person of the Iudge himselfe the Aduocats Proctors and Clients there followeth in the second booke the second obiect of the same which is the Iudgemēts themselues which are to be commenced by a Citation that in a competent court fit for the same by a Libell offered vp in the court by the plaintife to the Iudge which is to containe the sum of that which is required in Iudgemēt where if the defendant do againe reconuent the plaintife he is to answere albeit the defendant be not of that Iurisdiction the libel being admitted the defendant is to ioyne issue and yet before either of them enter any further into the cause that there may be faire and sincere dealing in the same that all suspition of malitious dealing therin may be taken away each of them are to take an oath the Plaintife that hee doth not of any malice prosecute the suite against the Defendant or the Defendant of any malice maintain the suit against the plaintife but that they verily beléeue their cause is good and that they hope they shall be able to prooue the one his libell the other his exceptions if he shall put in any into the Court. The cause being begun delaies are often graunted if either there come any Holyday betwéene or any other like iust cause bee offered as for producing of witnesses and such like If there be no iust cause of delay then the Iudge is to goe on in the due course of Law prouided alwaies that more bee not demaunded by the plaintife than is due and that the cause possessarie bee handled before the petitorie and that hee that is spoiled bee first and before all things restored to that thing or place whereof he was spoyled or from which he was put fro yea though he haue nothing els to alledge for himselfe beside the bare spoliation it selfe If the one side or other wilfully or deceiptfully decline Iudgement the Iudge is to put the other in possession of that which is in demaund or at the lest to sequester the fruits and possessions of that which is in controuersie but if both parties appeare and ioyne issue affirmatiuely then is it but a question of Law and not a fact neither doth there remaine ought els to bee done by the Iudge but that hee giue sentence against him that hath confessed it and put his sentence in execucion But if issue be ioyned negatiuely then is the plaintife to proue his Libell so far as it consists in fact by witnesses which are to be compelled by Law if they will not come or appeare voluntarily by publicke and priuat instruments by presumptions by coniectures by oath which being done the Defendant in like sort is to bee admitted to proue his exceptions and cleere his prescription if hee bee able to alledge any in which hee is Plaintife neither is hee bound thereto before the Plaintife haue perfected and prooued his owne right After proofes are brought on either side and the same thoroughly disputed on by the Aduocats the Iudge is to giue sentence which he is to frame according to the Libell and proofes formerly deduced in the cause The sentence being giuen Execution is to bee awarded vnlesse there be an appeale made from it within ten daies by the Law but fiftéene daies by the Statute of this Land from the time the partie against whom sentence was giuen had knowledge thereof or vnlesse it be appealed incontinently at the acts and in writing before a publike notary or at the lest the partie against whom the sentence proceeded within due time take his iourney toward the higher Iudge to prosecute the same by whom the former sentence is eyther confirmed or infirmed in the second instance The third booke conteyneth such Ciuile matters and causes as are liable to the Ecclesiasticall Courts as the honest life or conuersation of Clerks and theyr comely comportment in all their demeanor with what women they are to cohabit and dwell with whereby they may be frée from all suspition of ill life and with whom not which of them may be maried by the law of the Canons and which not in what cases they may be allowed to be non resident and in what not and how such as are non residents may be called home vnto their cure and if they retorne not vpon processe sent out against them how they are to be punished namely by depriuation or sequestration of the fruits and commodities of their benefice Prebends and dignities are preferments for Clerkes but not for such as are idle or absent from the same without iust cause but if any Clerk or Minister be sicke and his disease be curable he is to receiue the benefit of his prebend or dignitie in his absence as though he were present but if it be contagious or vncurable then is he to be put from the exercise of his office and a helper or coadiutor to be ioyned vnto him and they both to be mayntained of his stipend Prebends or dignities are to be got by institution which are to be giuen by the Bishop or his Chauncelor or such other as haue Episcopall iurisdiction without which neither any benefice is lawfully gotten or can lawfully be reteyned Benefices not void ought neyther to be granted neyther to be promised but such as are void ought to be granted wythin sixe monthes after knowledge of the voydance thereof otherwise the grant of them diuolueth commeth vnto the superiour he that causeth himselfe to be instituted into a benefice the Incumbent therof being aliue himselfe is to be deposed from his orders While any Benefice or Bishopricke is void nothing is to be changed or innouated in it and such gifts sales or changes of Ecclesiastical things as are made by the Bishop or any other like Prelate wythout the consent of the Chapiter are void in Law and such Benefices as do become void are to be bestowed without any impayring or diminution of the same In what case the goods and possessions of the Church may be alienated and in what not and that such things as are alienated be alienated by the greater part of the Chapiter otherwise the alienation is void What goods of the Church may be lent what sold what bought what changed what demised or let to lease what Morgaged or let to pawne After these follow Tractats of last Wils and Testaments of succession by way of Intestate of Burials of Tythes first Fruits and Offerings Of Monkes and their state in sundry sorts of the
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
Prohibitions of fact or of men are both infinit and odious for that there is well nigh no matter either Ciuile or Ecclesiasticall bee it neuer so cléere or absolute but they clog it and incumber it with some Prohibition and the matter they conteine is for the most part absurd and friuolous as shall first appeare in Marine causes and after in Ecclesiasticall matters For Marine causes it is well knowne that all such bargaines and contracts or as it were contracts as are made by any persons either in any forraine country or any Hauen or créeke of the Sea or any shoare thereof as far as the greatest winter waue doth run out or vpon any great riuer to the first bridge next to the Sea for any marchandize ship tackle or other negotiation belonging to the Sea or to any marchandize brought from beyond the Sea is and ought to bee of the admirall cognisance and so euermore hath béene since the Court of the Admiraltie was first erected and yet the Common Lawyers to defeate the Ciuile Law of the tryall thereof haue deuised sundry actions and among the rest an action of Trouer whereby they faine that a ship arriued in Cheapside or some other like place within the citie and there the Plaintife and Defendant meeting together bargained vpon some marchandize or other like sea-faring matter by which fiction they pretend the bargaine now is to bee tryed in the Common Law and not by the Ciuile Law as being done in the bodie of a Countie and not vpon the maine Sea or any other place subiect to the Admirall Iurisdiction But that this fiction or any other like qualitied to this should haue any such force as to worke any effect in Law I will shew first by the definition of a fiction then by those things that are necessarily attendant thereon A fiction thereof is defined by Bartol whom also the rest â— si is qui proemptore § 3. ff de vsucapiomb ibi Bartol of the Doctors doe follow to be an assumption of the Law vpon an vntruth for a truth in a certaine thing possible to be done and yet not done vpon which fiction the Doctors hold there wait two things the one is Equitie the other Possibilitie For first vnlesse there because why that which is not should be famed to be and that which is should bee accounted not to bee and that which is done in one sort or at one time or in one place should be imagined to be done in another sort at another time and in another place there is no reason a fiction should be admitted for the Law alloweth no man to come to extraordinarie remedies but where ordinarie remedies faile and therefore if that which is in controuersie may be obtained by any other meanes than by a fiction a fiction is not to be afforded but if ordinarie means cannot be had then fictions may be entertained to supply the L. in causa ff de numrib defect of the ordinarie meanes that thereby although the truth bee otherwise yet the effect of the Law may bee all one So then the Law faineth an infant not yet borne to bee borne for his benefit for that happily without that fiction L. qui in vtero penult de statu hoÌ„â—â— ff the poore infant should be remedilesse of his Filiall portion Legacie or other right in conscience due vnto him so Nephewes and Neeces succéed together with their Vncles and L. 1. § si â—iliuâ— ff de suis legit l. 2. l. 3. l. 4 C. â—od l Galâ—us 29 § bene § videndum ff de liberis posthum◠§ cum filius Instâ—t de haered abâ—nâ—â—â—ato L. veriâ— est § vl ff pro socio L. action § publicatione ff eod L. absenteÌ„ ff de verhoruÌ„ signâ—ficat L. lege Cornel ff ff de testamenâ—is Aunts in their Grandfathers and Grandmothers goods for such portion as should haue come to their parents if they had liued for that the Law presumeth them to represent the person of their parents so he that is dead is fained to be aliue to many constructions in Law speciall if many of his equals in age be aliue at the time that hee is fained to bee aliue so he that is aliue and is in captiuitie for the vpholding of his will which he made in libertie is fained to be dead the houre before he became captiue so he that is obstinat and will not appeare in Iudgement being lawfully called thereto is fained to be present that neither himselfe should take benefit out of his obstinacie neither his aduersarie hurt by his absence and iniurie Infinite more examples might be brought of this sort but it would be too long to run thorough them al and this shall suffice to haue shewed that the Law approueth fictions but where there is equitie for it and the Law it selfe otherwise cannot haue her effect And as the Law cannot L. Gallus § fi eius ff de liberis posthumis l. fi pater § sicum ff de adopt Horat. de Arte poetica procéed to a fiction without equitie so neither can it faine any thing that is impossible for Art euermore followeth Nature and therfore if a man would faine disproportionable things such as the Painter did in Horace who made Boares wallow in the waues of the Sea and Dolphins wander in the woods these fictions in no sence can be admitted for that they are such as neither nature nor reason can brooke In like sort if a man would faine one to liue who were dead two hundred yeares since so that it were not possible that he or Bartol l. si is quâ— proemptore num 21. 22. 23. sâ—…quentib any of his equals should liue at that age this would not hold in Law for that it is aboue the age the Law doth presume any man may liue by Nature although the Law doth presume such as dye in war for defence of their country for the better incouragement of those that are aliue to venter themselues in like seruice for the common wealth to liue for euer because their fame doth florish for euer and vpon like reason the Law will not suffer any person to adopt another for his child who is either elder or equal in age vnto himselfe or is not so far vnder his yeares as by course of Nature he might bee his naturall child indéed so much the Law detesteth impossibilities that it will not suffer a man to fame that which in common Sence and Nature might not be true indéed Now if these things be true as in all reason and shew by former precedents they appeare to be true I would gladly see how actions of Trouer whereby the Common Lawyers translate vnto themselues matters of Marine triall if they be squared to these Rules of Fictions can be maintained for first to speake of equitie which the Law requires in these manner of proceedings what equitie can it be to take away
trauersable so it be not in Criminall matters where time and place is required that the accuser doe not wander from place to place with the iniurie of the accused for howsoeuer the place and the action is altered yet the truth of the cause remaineth one and the selfe same still and so far as concerning actions of Trouer in Admirall causes Now it doth follow that I should speak of like preiudices that grow to the same by actions of Trespas but those will I passe ouer for that in so small a Treatise as this is I cannot go ouer all and therefore will I only put the Reader in mind that there are more deuises rising out of the Common Law that infest the Admiraltie than one But now to Wils and Testaments wherein they are impeached For matters of Wills and Legacies they are so proper to the triall of the Ecclesiasticall Law of this Realme as the professors of the Common Law themselues do oftentimes confesse and say they haue no more to doe therewith than the Ciuilian hath to doe with the knowledge of the matters of Franktenement and yet euen these matters of Testaments Legacies although Prohibitions be not so frequent in them as they are in the rest of Ecclesiasticall causes yet they are not quite void of them and that in some points wherein the verie life essence of a Will doth stand For whereas the auncient Romanes knowing how subiect matters of Wils are to forgerie corruption on the one side and suppression concealment on the other side to méet with all craft subtilty whatsoeuer which might seize on them did most carefully prouide that there should be seuen witnesses at the least present at the making of euery Will Testament except it were in time of some generall plague or sicknesse when so many Witnesses could not conueniently be had together for feare of infection or if it were in the Countrie where there are small multitude of people and that those witnesses should be particulerly required to that purpose with diuers other obseruations and circumstances tending all to the safe and sure making thereof which the Ecclesiasticall Law altered afterward in sundry points for that many true Wills were many times ouerthrowen for want of those precise solemnities reduced the whole number of those seuen witnesses vnto two only agreeably to the Law of God the Law of Nations where that number of witnesses is allowed as competent to prooue any matter so that the same witnesses be honest credible persons such as whose faith is not doubted of The Common Lawyers because themselues in sundry matters very dangerously many times admit one witnesse giue him full credit and that in matters of great waight importance as though all should be squared to their rule and framed to their compasse If an Ecclesiasticall Iudge in the probate of a Will contrarie to the rules of his owne Law will not admit the testimonie of one witnesse they forthwith fling out a Prohibition against him as though he had done an offence against the Crowne and dignitie in that he doth not allow those number of witnesses in the Probate of a Will that the Common Lawes of this land allow almost in euery matter For aunswere to which if I should alleage the precise forme of the Ecclesiasticall Law which to the essence of a will requireth this number of two witnesses or else holdeth it not for a Will but in cases inter liberos ad pios vsus where the only hand of the Father or Testator without witnesses serueth for a Will so the same be knowen to be the Testators owne hand or so prooued by comparison I would think to wise men I had said sufficiently but I will not rest hereupon but will conuince themselues by themselues for doe they I pray you in their owne procéedings where a Law or Statute requires more witnesses than one content themselues with one witnesse alone yea doe they not in all cases where a certeine number of witnesses are appointed to prooue a fact by Law or statute furnish the cause with so manie witnesses as the case desires or else doe they not accompt the procéeding void And will they think themselues so precisely bound to the kéeping of the letter of the Common law and will they not suffer the Ciuilian in like maner to cleane fast to the obseruation of the Ciuile Law especially when it hath the consent of the Law of God the Law of Nations and is his Maiesties Ecclesiasticall Law of this land aswell as the other is his Temporall Law of the same I confesse it may be true many times which one man saith specially when there concur therewith many great and violent presumptions and the party that reporteth it is of good credit but dangerous it is to open this gap to the malice of men for euen so many things shall be obtruded to the Iudge for trueth which are stark lyes and many things shall be pretended to be gold in shew which in proofe and practize will L. iuris urandi §. Simili modo C. de Testibus be found to be no other thing but méere drosse And therefore well decréed the Emperor Constantine that no one mans testimonie should be heard though he were neuer so great a man in Court But perhaps some man will say if credit shall not be giuen oftentimes to one mans testimonie much wickednesse will passe away vnpunished for reply to which I aunswere it is better to let a bad man scape than to punish a good and although it be true if a man may excuse himselfe by deniall no man will be found guiltie so also it is true on the other side if it be ynough to condemnation to be charged by one man alone without any other witnesses no man shall be innocent and therefore the admittance of one witnesse in causes and the procéeding thereupon to iudgement is verie dangerous An other like bar to this they lay in against Ecclesiasticall procéedings in matters of Testament whereas an Ecclesiastical Iudge prooueth a Will wherein are mannors lands tenements and other like hereditaments bequeathed challenging this also to be of the Crowne and dignity as though the Ecclesiasticall Iudge thereby tooke vpon him to decrée which lands were deuisable by will and which not or would by his probat adde a strength vnto the Will to make the deuise good or bad whereas on the contrarie part the Ecclesiasticall Iudge by this act doth only testifie that such a person made such a will that the same was prooued before himselfe vnder his Teste for his last will testament but for the validitie of the Will it selfe and the Legacies deuises therein whether they were of lands or tenements or of goods or chattels the Probat it selfe worketh nothing but leaueth that to the Law Common or Ecclesiastical according as the bequest belongeth to either of them whether it be good vailable in
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
forsooth because these words and tearmes are expressed in the Statute which is much like vnto that as one would needes haue a house to be Master Peacocks house because he saw a Peacock sit vpon the top thereof But it is not the naming of a thing in a Law or Statute that makes it to be of the Temporall cognisance or otherwise but it is the nature or qualitie of the thing named that rangeth it vnder the one Law or the other So that if the matter ordered in the Law or Statute be temporall the cognisance shall be Temporall if Spirituall then the case is determinable in the Ecclesiasticall Law for this Prouiso is not prohibitorie as the last Prouiso of this statute is whereby Ecclesiasticall Iudges are forbidden to hold plea of any thing that is in the said Prouiso conteyned but it is rather directiue and sheweth where the Ecclesiasticall Iudge is to giue way to immunities and to pronounce for them so that for any thing is conteyned in this Prouiso to the contrary the cognisance of these matters specially Priuiledge Prescription and Composition still remayneth at the triall of the Ecclesiasticall Law as they did before this Prouiso was made De praescripr lib. 2. tit 26. De Priuileg lib. 5. tit 33. for Tythes and other Ecclesiasticall dueties as may appeare by the seuerall Tytles in the same Law hereon written And for the other words Law and Statute therein mentioned when as the King hath two Capacities of gouernment in him the one Spirituall the other Temporall and his high Court of Parliament wherein Lawes are made doth stand aswell of Spirituall men as Temporall men and so ought to stand in both houses if the auncient booke De modo tenendi Parliamenti be true and authenticall which makes the vpper house of thrée states the Kings Maiestie the Lords Spirituall and the Lords Temporall and the Lower house in like sort of thrée other the Knights the Procurators for the Clergie and the Burgesses and his Maiestie hath wythin this Realme aswell Ecclesiasticall Lawyers as Temporall which are no lesse able to iudge and determine of Ecclesiasticall matters than the Temporall Lawyers of temporall businesse It is not to be imagined but as his sacred Maiestie will haue those Lawes to be held Temporall and to haue their constructions from Temporall Lawyers which are made and promulged vpon Temporall rights and causes So also his Highnesse pleasure is and euer hath béene of all his predecessors Kinges and Quéenes of thys Land that such Lawes and Statutes as are set out and publyshed vpon Ecclesiasticall thinges and matters shall bee taken and accompted Ecclesiasticall and interpreted by Ecclesiasticall Lawyers although eyther of them haue interchangeably each others voyce in them to make them a Law And that the King doth infuse life into eyther of the Lawes when as yet their substance is vnperfect and they are as it were Embreos is in Temporall matters by his temporall authoritie and in Spirituall matters by his spirituall authoritie for to that end he hath his double dignitie in that place as also the Ecclesiasticall Prelates sustaine two persons in that place the one as they are Barons the other as they are Bishops So that euen the orders of the house doe euince that they are two sortes of Lawes in that place vnconfounded both in the head and the bodie although for communion sake and to adde more strength to each of them the generall allowance passeth ouer them all And as they rest vnconfounded in the creation of them so ought to be likewise in the execution of them and as the Temporall Law sortes to the Temporall Lawyers so the Spirituall Lawes or Statutes should bée allowed and allotted vnto the Spirituall Lawyers And as the nomination of these words Law or Statute in this precedent Prouiso makes not the Law or statute Temporall but remayneth wholie Ecclesiasticall by reason of the Spirituall matters it doth conteine and the power of him that quickneth it and powreth life thereinto so much lesse can the inserting of these tearmes Priuiledges Prescriptions or Composition reall intitle the Common Law to the right thereof or the Professors of the said Law to the interpretation thereof for that matters of these tytles so far as they concerne Tythes and other Ecclesiasticall dueties haue béen euermore since there hath been any Ecclesiasticall Law in this land which hath been neere as long as there hath béen any profession of Christianitie with vs of Ecclesiasticall ordinance neyther euer were of the Temporall cognisance vntill new of late that they transubstantiat euery thing into their owne profession as Midas turned or transubstanciated euery thing that he touched into gold But here it will not be amisse to inquire since Tythes came in the beginning of the Primitiue Church wythin a little time after the destruction of Ierusalem and the subuersion of the Iewes policie vnto the Christian Church and Common wealth void of all these incumbrances as shall appeare after by the testimonie of sundrie of the auncient Fathers which were néere the Apostles time how it comes to passe since Tythes are no lesse the Lords porcion now than they were then and in the Patriarkes time before them that these gréeuances haue come vpon them more vnder the Gospell than euer they did vnder the Law for then neuer any Lay man durst stretch out his hand vnto them to diminish any part thereof but he was charged Malach. 3. with robberie by the Lords owne mouth and in punishment thereof the Heauens were shut vp for gyuing raine vnto the earth and the Palmer worme and Grashopper were sent to deuour all the gréene things vpon the earth And for Ecclesiasticall men it is not read any where in the Scripture that euer they attempted to graunt out anie priuiledge of Tythes to any person other than to whom they were disposed by the Law or to make anie composition thereof betwéene the Lay Iew and the Lords Leuites euery of the which haue beene not only attempted agaynst the Church in Christianitie but executed with great greedynesse so far worse hath béene the state of the Ministerie vnder the Gospell than was the condition of the Priestes and Leuites vnder the Law The beginning whereof although it be hard for me to finde out because there is small memory thereof left in Stories yet as far as I can by all probabilities coniecture this great alteration in Ecclesiasticall matters came by two occasions the one by the violence of the Laitie thrusting themselues into these Ecclesiasticall rights contrarie to the first institution thereof for when they were first receyued into the Christian world they were receyued and yéelded to for the benefit of the Clergie only as in former time vnder the Law they had béen for the vse of the Priestes and Leuites only The other was the too too much curiositie of Schoolmen who beeing not content with the simple entertaynment of Tythes into the Church as the auncient fathers
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
and other of like nature according to the learning of that Law but these are certain accidents ouer and beside the Tenure of the land which may be present or absent without the iniurie of the Tytle as God many times turneth floulds into wildernesse springs of water againe into drinesse a fruitful land makes he barren for the wickednesse of them that dwel therin and yet the Tytle or Tenure of the ground is not changed by these changes of qualities but remains the selfe same that it was so that these things are no more subiect to the ordering of the Common Law than it is in the Cōmon Law to iudge determine what mould is white what is black what ground will beare wheat what barley what oats for these things are no matters of skil of law that they néed to be fetcht out of bookes but they are matters of common experience which euery country man can as well skill of as the greatest Lawyer that is and therefore the Law in this case is not desirous of any curious proofe but contenteth it selfe onely with the depositions of two or thrée honest men which speak sensibly and féelingly to the point that is in hand which is enough to direct any wise Iudge in his sentence so that it néeds not these long circumstances of twelue men to teach the Iudge what and how truely the witnesses haue deposed For if euery qualitie of the ground resteth in the mouth of twelue men onely then should no man bee able to say out of the mouth of a witnesse and pronounce thereupon this ground is mountaine this is plaine this is meadowe this is errable vnlesse he were warranted by the verdit of twelue men therunto which if it be an absurditie to hold then sure it is like absurd to say that barren heath and waste cannot bee pronounced without a Iurie for that these things are like obuious to sence and like qualited as the other are And I pray you when they haue drawne it vnto their triall what doe they in effect otherwise than the Ecclesiasticall Iudge would or should haue done if it had remained stil vnder him for doe they giue credit simply to the conceit of the Iurie as touching that which hath béene declared and pleaded in the cause before them or doe not the Iudges themselues rather make a briefe of all that hath béene pleaded in the cause before them and thereof make as it were a verdit and put the same in the mouth of the twelue for their verdit before they goe from the bar So that the whole weight of the cause standeth rather in the Iudges direction in such sort as it is at the Ecclesiasticall Law than it doth in the mouth of the Iurie for the Iurie men for the most part are simple people scarce foure of the twelue vnderstand their euidence so that it may séeme rather to be a matter of supersluitie than of good policie to refer a matter to their verdit when as they say no other thing than that the Iudge taught them before Stultum enim est id facere per plura quod fieri potest per pauciora for albeit perhaps some capricious fellow of the Iurie vpon the confidence of his owne braine sometimes start aside from that which the Iudge hath told him and draw the rest of his fellowes as so many shéepe after him yet for the most part the Iudges voice is their direction their loadstone and and North pole to guid them in this businesse Besides in this Prouiso as in some other precedent there is a great disaduantage offered to the Clergie which they much complaine of and that is that in cases of this nature they are compelled to suffer triall vnder them who are as in a maner parties vnto the suit by reason of the interest they haue therein either in present or in consequence so that many now a daies learning too late by other mens harmes what the euent in theirowne cause wil be chuse rather to loose their right than to venture their cause vpon such partiall Iudges as the 12. men are And so far as concerning those prohibitions as are forced out of this Statute for naturally they grow not out thereof so that I might now passe ouer to the other branch of my diuision that is of such matters as are now held by the Common Lawyers to be in a certaine measure only of the Ecclesiasticall procéeding but were aunciently wholy of the Ecclesiasticall cognusance but that the name of the Statute De Sylua caedua offering it selfe vnto me in the conclusion of this Statute of Edward the vj. giues me occasion to speak something thereof before I come to the rest This Statute as the words thereof doe shew was made in behalfe of the Laitie against the Clergie for the exemption of great Woods of xx yéeres growth vpward from the payment of Tythes and that in three cases only where the wood was great where it was of xx yeares of age and vpward where it was sold to Marchants eyther to the profit of the owner himselfe or in ayd of the King in his warres so that without these cases it séemeth the Statute intended no further exemption for Statutes are things of strict Law and are no further to be extended than the words thereof giue matter thereunto specially when the thing it selfe naturally was lyable to ordinary course of the Law as other things of like nature are and the statute comes in derogation of their ordinary course as in this case great timber auntiently was no lesse tythable than small trées are and so by nature ought to be if the statute were not to the contrary yet notwithstanding these limitations of the same if great wood be cut down to any other vse then to sale as to build or to burne to a mans owne vse a prohibition in this case lyeth and yet is there no Identitie of reason to extend it nor any absurditie would follow if it were not extended for here is neither mony sought which gaue occasion vnto the Lawgiuers to make this statut of exemption neyther is it an vnnatural thing for to pay Tythes of great wood for before this time they were paid and by the Law of God it séemes they ought to be paied for that he that is taught ought to communicate to him that teacheth him in all things and therefore since the reason that moued the Lawgiuers to order it so in one case ceaseth in the other there is no reason of extention when there is not an Identitie of reason in the things that are in demaund there can no sound inference be brought in from the one to the other for of seuerall things there is a seuerall reason and a seuerall consequence neyther can there be framed thereof a good implication eyther positiuely or remotiuely neyther hath this interpretation of theirs any warrant of Law for it saue that it hath bin so defined and decided
is a principall But for the better cléering of these matters of accessarie and principall wée must know in bodies whose substance is all one There are some partes like which the Logicians call partes similares some other vnlike being likewise called of them partes dissimilares which in no sort are accessaries one to an other but make one continued bodie of both which the Law cals 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Simular parts are such as haue one substance forme and figure as the trunke or bodie of a trée is all one in inward essence and outward shape Dissimular parts are those which haue one inward nature with the other but are diuers in outward shew as the boughes and rootes of the Tree are diuers betwéene themselues and different from the bodie and yet all agrée in one substance and haue all the generall name of Wood whereby they are discharged from being accessaries the one to the other and yet they are not vnder one capacitie or seruice or one comprehension of Law because they are vnlike one to thother and of vnlike things there is vnlike reason and vnlike consequence Now vpon these grounds to exempt Timber Trées wholly from the seruice of him that is Lord aswell of the tall woods as of the low shrubs is verie hard for though himselfe dwels not in houses that are made with mans hand nor hath any néede of tall Trées to repaire his Tabernacle or prop vp his dwelling yet since he hath left such behind him as haue charge of his flocke and féed them in word and worke vntill he come and they dwell in earthly habitations as other men doe and there edifices and buildings haue néed of repaire in like sort as other mortall mens houses haue being all in like manner subiect to rottennesse and corruption great reason it had bin to haue allowed him some proportion of these great woods towards his seruants necessarie vses during the time of their seruice here and if not in the very tenth it selfe yet in the xxx xl or l. part of the same that God thereby might haue bin aswell acknowledged to be the Lord of the great Okes of the forrest and that by him they haue there length breadth and thicknes as he is accepted and reputed to be Lord of the small brambles and bushes of the field for as now the case standeth God may either séeme to haue forgot himselfe that he hath not made timber trées Tythable as he hath done other smaller woods specially hauing such occasion to vse them both in the Chauncels of Churches that are dedicated to his vses and also in the buyldings and repayrings of his Ministers houses who supply his roome in their seuerall Congregations vntill he retorne to Iudgement or that may wel be obiected against vs in allowing such things for Tythes as vs please and disallowing the rest as was by that auncient father of the Church Tertullian obiected against the Senate of Rome who being intreated by the Emperor Tiberius for the strange wonders and Miracles he heard to be wrought by our Sauiour Iesus Christ that he might be intertained among the number of their Gods refused so to doe for that they heard our Sauior was a Iealous God and did in no sort admit the societie and fellowship of other Gods which this graue father hearing although many yeares after said merily although wisely That God should be God if Man would let him And thus far of those causes which are held to be absolutely of the Ecclesiastical cognisance yet notwithstanding are ecclipsed by interposition of sundry contrary matters Now as concerning those things which haue béene accounted but in a certeine measure of the Ecclesiasticall cognisance and yet notwithstanding haue aunciently in a maner béen tried wholy at the Ecclesiasticall Courts such as are matters of Diffamation and matters of Bastardie both which now a dayes are much challenged by the Temporall Courts to be of their cognisance But here first of diffamation then of Bastardie To diffame therefore is as Bartol saith to vtter reprochfull Bartol l turpia ff de legat 3. spéeches of an other with an intent to raise vp an ill fame of him and therefore himselfe expresseth the act it selfe in these words Diffamare est in mala fama ponere Albeit Diffamations properly consist in words yet may they also be done by writing as by diffamatory Libels also by déeds as by signes gestures of reproch for these no lesse shew the malicious mind of the diffamer then words doe Diffamatory words are vttered eyther in some scoffing or iesting maner so as facete merie men vse to do to make the Linwood c. author tate verb. quacuâ— que de causa iâ— glos de sniÌ„a exâ—omm company merry wherin they are or they are spoken by some that haue some weaknesse or distemperature in their braine eyther by drink phrensie or other lightnesse or by any rashnesse in their tongue or they are poured out vpon some rancor malice by some that enuie an other with intent to diffame him and spred abroad a matter of disgrace vpon him If they be spoken in a testing maner to make the company Aristot. 4. ethic c. antepenâ—lt merry if it be in a fine sort deliuered it is by the Gréekes called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and is by Aristotle held to be a vertue although by S. Paul it is condemned as a vice but if it be in â—phes 5. 4. homely grosse sort deliuered than is it accompted to be a kind of rudenesse or rusticitie but whether waies soeuer they be vttered there is for the most part no vantage taken of Extra de presumpt ca. 1. them vnlesse thereby there follow any discredit to the party vpon whom such iests are broken for than are they not without blame Noxius enim ludus est in vitio neyther can that ff ad l. Aquiliam l. nam induâ— be called iest or sport whereby a mans good name is hurt or any crime imposed vpon him The like may be said of those which speak hardly of any by the lubricitie of theyr tongue or weakenesse of theyr braine who for that they are not thought to speake such words malitiously passe for the most part vnpunished Lubricum ff ad l. Iul. Maiestatis l. famosi enim linguae non facilè ad poenam trahendum est no though a man in this case speak ill of the Prince himselfe which is so far off from that that the Ciuile Law takes hold of such wordes in these cases that the Emperor himselfe hath said of them thus Si id ex leuitate processerit C. Si quis Imperatori malediâ—erit contemnendum est si exinsania miseratione dignissimum est But if the cause of such words be rankor or malice then are they altogether to be punished for that there can be no iust excuse made for them Such diffamatory words as procéed of malice implie Bohic ca.
his credit salued by recompence in money as the Iudge or Iurie vpon proofe of his worth and place shall esteeme it and tax it In these Actions he that sued ad publicam vindictam and had followed it so far as that he had brought it to a Recantation or a publicke disgrace could not haue recompence of his credit by money saue onely in case of commutation neither hee that had got his credit valued by money could haue a publike disgrace also inflicted for his satisfaction but what way he had chosen with that he must haue rested contented for that irèful mens wraths otherwise would neuer haue bin satisfied the prosecution of these actions otherwise wold be cōfounded These two kinds of procéedings the Princes and Sages of former ages seeme to haue sorted to the two kindes of Iurisdiction that are amongst vs the one Spirituall the other Temporall and therefore the Law of the Land it selfe saith in a cause of Diffamation when money is not demanded but a thing done for punishment of sin which is all one as when the Ciuilians say when it is done ad publicam vindictā it shall be tried in the spiritual courts wherupon by argument of cōtrary sense it followeth that where the punishment of sin is not required but amends in money is demanded there it is to be tried in the temporal Court for the law would that euery man should haue his remedy agréeable to reason in what sort him best liketh And therfore be the fault what it may be that the words of the Diffamation do sound vnto as long as it stāds but in words the party doth not take vpon him to iustifie the matter that is comprised vnder those words and doth séeke but for the punishment of the slanderous words only so long it is to be tryed at the Spirituall Law for the Law speaketh in generall in cases of Diffamation where punishment of sin only is required so that where a man is called Traitor Felon or Murtherer or any other crime belonging vnto the Cōmon Law being euery one of them words of great diffamation so the partie therein séeke punishment onely and not his priuat interest there the Spiritual Law is to hold plea thereof For where the Law doth not distinguish there neither ought we to distinguish but the Law hath said in general that causes of Diffamation whose prosecution is thus qualified doe belong vnto the triall of the spiritual Law and therfore euen those cases before remembred where the party followeth this kind of prosecution ought by that Law to belong vnto the Spirituall court as on the contrarie side Spiritual causes of Diffamation being propounded to a pecuniarie end ought to be ordered in a Temporall Court But where any man takes vpon him to iustifie the crime that he hath obiected there either Court is to hold plea of the crime that properly belongeth to that Court for that now no longer words are in question but matter is in tryal whether the partie diffamed hath indéed committed that offence that he is charged withall or no which can bee tried in no other Court than in that to which it doth properly appertaine And that this was the Course aunciently held in matters of diffamation betwéene the Ecclesiasticall and Common Law it is manifest by the Statute of 2. of Edward the 3. chapter 11. 2. Edw. 3. c. 11. where although the Statute taxeth the peruerse dealing of such as when they had béene indicted before the Sherifes in their Retorne after deliuered by Inquest before the Iustice of the Assise did sue the indictors in the Spiritual Court surmising against them that they had diffamed them and therefore in that case forbad the like suits for that Iustice thereby was hindered and many people were feared to indict Offenders yet that Statute plainly sheweth that in all other cases of Diffamation rising out of Temporall crimes beside this the Ecclesiasticall Law had the cognisaunce and that this was forbidden it was not for that that words of this nature could not be censured at the Ecclesiasticall Law when punishment of sin only is required but for that it was not fit that those things which had béene once ordered in one Court should be called againe to examination in another Court and therefore the generall procéeding in matters of Diffamation is not there prohibited but the particuler crossing of matters after iudgement is there reprehended So that that distinction I haue here before spoken of which taketh vpon it to determine when a case of Diffamation is of the Temporal cognisance when of the Ecclesiastical cannot here take place for that it is contrarie to the former Statute or Decrée that diuided these cases into Temporall or Ecclesiasticall cognisance by the varietie of the prosecution thereof and that it is contrarie to the auncient practise that hath confirmed this prosecution in either Court but specially in the Ecclesiasticall Court which hath still holden the triall of such Diffamations wherein sin hath béene onely sought to be punished vntill now of late that men haue stept ouer the bankes of their authoritie and confounded either Iurisdiction with the promiscuous acts one of another when as the Statute it selfe is plaine that the authors of this Statute or Decrée whethersoeuer you call it which set these bounds to either law in procéeding vpon matters of Diffamation respected not so much the qualitie of the crime vpon which the Diffamation grew as the manner of procéeding therein ayming in the one at publicke vindict which is to be sought out of the Ecclesiasticall law and in the other at priuat interest which is to be had out of the Temporall Law Neither is an Action of Diffamation a matter of so light esteeme or qualitie a mans fame or good name being in equal ballance with his life as that it should be drawne away to be attendant on any other action that is of smaller weight or importance than it selfe is for this is one of those Actions which for the speciall preheminence thereof are called Actiones praeindiciales that is such that draw smaller causes vnto them but themselues are drawne of none other but such as are like principal or greater than themselues are So that vnlesse the manner of procéeding bring these causes vnder the compasse of the common Law in such sort as I haue before shewed the coopling of them with another matter of the same Law will hardly bring them vnder the triall thereof For that there be few actions greater than it selfe is so that if the crime be Ecclesiasticall howsoeuer it toucheth a Temporall cause the tryall shall be still at the Ecclesiasticall Law And the same that I say of Diffamations rising out of Ecclesiasticall crimes I hold also to bee true in Diffamations springing out of Temporall crimes where punishment is required for the offence committed and amends in money is not demaunded vnlesse happely that grow of penance inioyned which the offender wil redéeme 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
analogie in them and therefore the Reuerend Iudges are to be intreated because they challenge vnto themselues the opening of the statuts alone albeit peraduenture that be yet sub Iudice where the Statute of Ecclesiasticall causes is to bee interpreted that they would recall such exorbitant interpretations as haue of late gone abroad vpon these Statutes and restore them to their auncient sence and vnderstanding No man can so cunningly cloake an interpretation but another will be as cunning as he to spy it out and then the discredit will be the Lawes A small error saith Aristotle in the beginning is Lib. 1. Poliâ—iâ— a great one in the end and he that goeth out of the way a little the longer hee goeth on the further he is off from the place his voyage was to and therefore the spedier returne into the way againe is best The old Prouerbe is He that goeth plainly goeth surely which may be best verified in the exposition of the Law if any where else for commonly men offend no where more daungerously than vnder the authoritie of the Law and therefore one saith very well that There are two salts required in a Iudge the one of knowledge whereby hee may haue skill to Iudge vprightly the other of conscience whereby hee may bee willing to iudge according to that as his skill leadeth him vnto both which being in the graue Iudges it is not to bee doubted but they will bee easily induced to reuiue their owne and their predecessors interpretations and reduce such exorbitant expositions as haue scaped out thereof vnto the right and naturall sence thereof which if perhaps they shall bee loath to doe for because it makes for them or for some other like partiall respect then humble supplication is to bee made vnto his Maiestie himselfe will be pleased to giue the right sence of those things which are in controuersie betwéene both the Iurisdictions for his Maiestie by communicating his authoritie to his Iudges to expound his Lawes doth not thereby abdicate the same from himselfe but that he may assume it againe vnto him when and as often as him pleaseth Whose interpretation in that is to bee preferred before theirs first that his interpretation is impartial as hee that will not weaken his left side to make strong his right for so are these Iurisdictions as they are referred vnto his politicke bodie but will afford them equall grace and fauour that he may haue like vse of them both either in â— 1. num 8. C. 〈◊〉 L. 1. num â— C eod l omnes popuâ—â— ff de in stit iure fortaine or domesticall businesse as occasion shall serue then that his Iudges interpretation maketh right only to them betwéene whom the cause is but his highnesse exposition is a Law vnto all from which it is not lawfull for any subtect to recéed neither is reuersable by any but by himselfe vpon a second cogitation or him that hath like authoritie as himselfe hath and therefore most fit to be interposed betweene Iurisdiction and Iurisdiction that the one partie bee not Iudge against the other in his owne cause which is both absurd and dangerous And let this suffice for the right interpretation of Lawes and Statuts now it followeth that I speake something of the supplies that may be made to the defects that are in the same It is not to be doubted but it was the full minde intent of the Law-makers which made those thrée Statutes to infeoffe the Ecclesiastical Courts in the inheritance of all those causes that are comprised in those Statutes saue those that are by speciall name exempted and did by the said Statute as it were deliuer vnto them full and quiet possession of the same for euen so sundry braunches of the said Statute doe shew as I haue elswhere made it manifest and that there hath growne question vpon many points thereof and that the professors of the Ecclesiasticall law haue béene interrupted in the quiet possession thereof commeth of the vnperfect penning of the same and not of any iust title or claime that may be made by the porfessors of the other Law therunto but this is a thing not only proper to these thrée Statuts but also Common to all other Statutes which are writ of any Ecclesiasticall causes within this Land which notwithstanding may be remedied if it séem good vnto his sacred Maiestie the rest of the wisdom of the land assembled together at any time for the making of wholsome Lawes and the reforming of the same by supply of a few words in some places or periods that are defectiue and yet kéeping the true meaning and sense of the same As for example in the statute of the two and thirtieth of Henry the eight in the § wherefore néere the beginning of the same Statute the Statute ordering that all persons of this Realme and other of the Kings Dominions shall truely and effectually set out and pay all and singuler Tythes according to the lawfull customes and vsages of the Parishes where they grow and become due because there is a question made where these customes and vsages shall bee tried in the Ecclesiasticall or Temporall Law if these or the like words had beene added to the same to be prooued before an Ecclesiastical Iudge after the form of the Ecclesiastical Law not elswhere the whole matter had bin cleere for that point And whereas againe in the end of the same Statute there be some good words tending to the appropriating of these matters of Tythes and Oblations and other Ecclesiasticall duties to the Ecclesiasticall Courts as that the remedie for them shall be had in the Spirituall Court according to the ordinance of the first part of that Act and not otherwise yet because there is no penaltie to that act busie men easily make a breach thereinto for that Lawes without penalties for the most part are weake and of no force if therefore this or the like supply were made if any man sue for these or like duties in any other Court than in the Kings Ecclesiasticall Court the partie so suing to forseit the treble value of that which he sued for to be recouered in the kings Ecclesiasticall Court where it ought to haue beene commenced by the way of Libell or Articles the one halfe therof shal be to the king the other to the partie grieued many of these suits would easily be met withall Neither is it to the purpose that this is matter of mony and Lay fee that should be in this sort forfeited and therefore is not Regularly to bee sued for in the Ecclesiasticall Court yet because the cause is Ecclesiastical vpon which the matter of forfaiture ariseth it may bee verie well allowed Ne continentiae causarum diuidantur and for that ordinarily euery Iurisdiction that is wronged may defend it selfe with a penaltie beside we do by the like right in the Ecclesiasticall courts recouer expenses of suits in Law fées of Aduocats and
procters and money for redemption of sin so that it will be no strange matter to haue this kind of suit allowed vnto the Ecclesiasticall Court Further whereas there are in the Statute of Edward the sixt chapter 13. in the beginning almost of the said Statute two clauses vnder paine of for faiture one of treble value for Tythes carried away before they were diuided set out or agreed for The other of double value where the Tythes were hurt or impaired by the partie stopping or letting him that had interest therunto to carrie them away or by withdrawing or carrying them away himselfe and the same is ordered by a clause in the second braunch thereof reaching vnto them both for that a clause put in the end of two sentences streacheth it selfe indifferently vnto them both if there be no more reason it should belong to the one than the other as there is not in this case for if it were not so the first penaltie had no order set downe how it might be recouered that the same shall be recouered according to the Kings Ecclesiastical Law to which if there were added this word onely and not elswhere or otherwise and they martialed in their right places there were nothing more sure or strong Moreouer whereas in the first prouiso of that Statut it is decréed that none shall be compelled to pay any manner of Tythes for any Here ditaments which by the Laws or Statutes of this Realme or by any Priuiledge Prescription or composition Reall are not chargeable therewithall whereby it is doubtfull in what Court the said Exemptions are to be alleaged if there were inserted these words or other of like nature the said Lawes Statutes Priuiledges Prescriptions or Compositions Real to be alledged argued trauersed and determined before the Ecclesiasticall Iudge only according to the forme of the Ecclesiasticall Lawes and not elswhere vpon like for faiture of treble damages as is aforesaid it would make this point sure vnto the Ecclesiasticall Law Ouer and beside this whereas in the same statute there is a discharge allowed to barren heath wast ground in some for not paiment of tithes in other for the manner of paiment of them for the space of seauen yeares after the improuing and conuerting of them into Arrable ground or meadowe it would make the matter plaine which lawe shoulde haue the pronouncing thereupon if there were added these or the like wordes so the same ground be proued in forme of law in the Ecclesiasticall Court to be barren heath and wast Lastly wheras in the said Statut among other limitations of causes wherin the Ecclesiasticall Iudge is not to deale by vertue of the said statut there is one in these words néer the end of the said statut ne in any matter wherof the Kings Court of right ought to haue Iurisdiction which limitation is so vage large that therout there may be forged as many diuers kinds of Prohibitions as the Poets fained Vulcan euer made thunderboults for Iupiter And therfore it were very wel coÌ„sonant to the good meaning of the said statut this vagenes were restrained reduced to a more certainty of matter by these or like words By any antient law or statut of this land And so far as concerning the imperfection of the said three Statuts and how they may be amended and made reducible to the first meaning and intent of the makers therof by some smale supplie alteration or change of wordes the sence and ground-work standing euer the same according to the wisdom of his Maiestie his great counsel assembled in parliament Now it followeth I shewe wherein the practise of the Ecclesiastical Law vnder which I comprise the Ciuile Lawe so far as it is in vse among vs may be increased to the benefit of the subiect the inlargement of the profession without the preiudice of the common law And that I may first begin of the pietie of Fathers towards children children againe towards their parents which is the beginning of all common wealths for euen Nature it selfe hath taught that not only in the most brutish people that be but also setled it in the sauagest kind of beasts that are vpon the earth the one to cherish that which it selfe hath brought out and the other to loue againe that which hath brought it out and yet what Law is here in England which prouideth for the one or the other vnlesse it be the statut of the eight of Elizabeth that is but for poore folks children onely where otherwise they should be a burthen to the Parish but for the Parents themselues or other children that are cast off either by the negligence or the vnnaturalnesse of the one toward the other there is no prouision at all Yet by the Ciuile Law there is a purueiance made whereby both the Father is compelled to acknowledge his child if ff de agnoscend alendu liberis vel parentib C. de alâ—ndis liberis vel parentib ff de ventre inspiciendo custodieÌ„doque partu ff de offiâ—io proconsuâ—is l. nequic quam §. de pâ—ano there be any variance betwéene the husband and the wife vpon any Iealousie or suspicion of Adulterie if the same cannot be prooued by the womans owne confession by witnesses by the act it selfe or some other violent presumption and to norish and maintaine the same but if the fault appeare against her and it be so sentenced by the Iudge then may he as well refuse the one as the other but for other children vpon whom there is no such doubt the Parents may be constrained to maintaine cloth and féed them and to set them out a Porcion of their goods so that either the state and facultie of the Parents will beare it or the children haue not deserued to the contrarie wherefore they should not in that sort be prouided for And as the Father in this sort is bound vnto the Child so the child againe is obliged vnto his Parents to prouid for their sustenance so far forth as their abilitie will reach vnto for it is very vnnaturall the Parents should want so long as the children haue meanes to relieue them In both which cases if either the Parents refuse to admit of their Children or the Children againe refuse to yéeld comfort vnto their Parents the Iudge may interpose his authoritie and inioyne each to maintaine other according to their abilitie and as to his discretion shall séeme meet which if any of them should deny to yéeld vnto the Iudge may by Distresse of their goods taken and sold to the value thereof compell them to performe his order and yet that onely in case of Maintenance and not to discharge debts wherein either of them stand bound vnto their creditors A man here in England dying and leauing his wife Executrix shée after marrying carrieth away all his state vnto her second busband who giues spends therof as him listeth without any regard