they are referred to the punishment of the Judge who is to punish them according to the quality of the fact age and understanding of the offender and other circumstances according as he shall thinke good so notwithstanding that he exceed not a convenient measure therein neither stretch the same to death but upon some great and weighty cause he is to be content with meaner punishment as temporall banishment whipping or some moderat pecuniary mulct For violating or defacing another mans sepulchre Imfamy was imposed besides a pecuniary mulct to be divided betweene the Prince and the party grieved but if any dig up the corse of the deceased the punishment is death If any by feare of his office or authority wring any money from any man or exact more fees in any matter than he ought to doe or cause him to marry or doe any other thing he would not doe the forfeiture is foure double the value of that which hath been taken beside further punishment at the discretion of the Judge Such as drive mens cattell out of their ground or sever them from the flock or herd with intent to steale them if they doe it with a weapon like unto a Robber are condemned to be throwne to wild beasts otherwise are more lightly punished according to the discretion of the Judge Such as in Judgement take money on both sides or taking upon them the defence of one side betray the cause and take money on the other side are infamous by law and are punished at the discretion of the Judge Such as receive theeves and other like malefactors are punished in like sort as the theeves or malefactors themselves are especially if they have assisted them in their wickednesse otherwise if they onely knew it received them they are more mildly to be punished especially if the offenders were their kinsmen for their offence is not like theirs which entertain those which are no kin to them at all when as it is naturall for every one to regard his owne blood and fathers are many times more carefull for their children than for themselves but if that hee that received them knew nothing of the offence then is he altogether to be excused Such as break prison are to be punished by death because it is a certain treason to break the Princes ward but if they scape by the negligence of the Keepers against whom the presumption lyeth ever in this case they are more lightly to be punished If any commit Burglarie breaking up a doore or wall with intent to doe a Robbery if they be base companions they are to be condemned to the Mynes or Gallies but if they be of better reckoning they are to be put from the ranke or order wherein they are or to be banished for a season Juglers and like Impostors which goe about deceiving of the people with false tricks and toyes hookes and such like which insinuate themselves into other mens houses with purpose to steale are punished at the discretion of the Judge If any steale or take away any thing out of the inheritance of another man before either the Will be proved or administration be taken an action of theft lyeth not because the inheritance during the time was counted no bodies but he is to be punished by the discretion of the Judge yea though it were the heire himselfe that did it Cosenage whereby a man craftily suppresseth some thing he should not or putteth one thing in anothers place to the deceit of him that hee dealeth withall or corrupteth such wares which hee uttereth or doth any other thing collusorily which is called of the Law Crimen Stellionatus of a little vermin or creature called Stellio much like to a Lisard most Crimen Stellionatus envious to man is censured by some ignominious shamful punishment or by disgracing the person by putting him out of the Office Place or Order he is in or by injoyning him some servile worke or by banishing him for a time or by some like punishment at the discretion of the Judge If any plough up a Mere balke or remove any other marke which hath accustomed to be a Marke or bound betweene ground and grounds which anciently was counted reverend and religious among men the offence is punished either by a pecuniarie mulct or by banishment or whipping at the discretion of the Judge Unlawfull Colledges Corporations and assemblies gathered together to bad uses as to eating drinking wantonnesse heresie conspiracie are punished as publick Routs or Riots otherwise at the discretion of the Judge All these before recited are called Popular Actions because not onely he that is injured but every other honest subject may pursue and prosecute the same Publick Judgements are such which immediatly pertain Publick Judgements to the punishment of the common-wealth for example sake and are examined tried and punished by a publick order appointed by Law the partie grieved making himselfe partie to the suite and following the same the party accused in the meane while remaining in prison or putting in suerties for his appearance and the partie grieved for the prosecuting of the same The chiefest of which sort is Treason which is a diminishing or derogation of the Majestie of the people or Prince on whom the people have collated all their power which is punished with death and confiscation of the Lands and goods of the offender and the eternall abolishment of his memorie The next is Adultery which is violating of an other mans bed whose punishment anciently was death both in the man and in the woman but after it was mitigated in the woman shee being first whipt and then shut up in a Monasterie but by the Canons other paines are inflicted Under Adulterie are contained Incest Sodomy Baudery and all the rest of the sins of that kinde Publick force is that which is done by a company of armed men collected together and the correction thereof is perpetuall banishment Private which is done without Arms the paine thereof is the losse of halfe the parties goods and the infamie of his name Murtherers and Poysoners Witches and Sorcerers the crime being proved dye the death such as set mens houses a fire are to be consumed with fire themselves such as kill either Father or Mother or those that are in the place of Father or Mother or any that are of next a kin their punishment is death and in case of the Father and Mother beside the pain of death the Parricide being first well whipt so that the blood doe follow in good plenty hee being sowed up into a sack together with a Dogge a Cock and an Ape is thrown into the depth of the Sea Such as make false Certificates forge false Wils Depose false wittingly suborne witnesses take money either to say or not to say their knowledge of that which they are demanded of in Judgement corrupt Judgement or cause it to be corrupted interline put in or raze out any thing out of any
School-masters or Professours of Physick or be Midwives Notaries Auditors or Casters of accounts or Registers the Law alloweth not only a competent stipend in recompence of their skill paines but also affords them means how the same may be recovered if it be denied But as for Philosophers and Lawyers the Law hath appointed them no stipend not because they are not reverend Sciences and worthy reward or stipend but because either of them are most honourable professions whose worthinesse is not to be valued or dishonoured by money yet in these cases many things are honestly taken which are not honestly asked and the Judge may according to the quality of the cause and the skill of the Advocate the custome of the Court and the worth of the matter that is in hand appoint them a fee answerable to their place as also to such as are Interpreters betweene parties in matters of traffick when one understands not an others language CHAP. II. SECT 1. The second Volume of the Civile Law is the Code which is distributed into twelve Booke Why the Code is so called THe second Tome of the Law is the Code and stands in twelve Books whereof eight for the Titles follow in a manner the order of the Digest a few titles onely excepted which are added besides those of the Digest but as for the foure other which are the first the tenth the eleventh and the twelfth although the subject they treat of be named in the Digest yet the things which are there named are not handled in the Digest and therefore will I passe over those eight other lest happely I might seeme to doe one thing twice and therefore will I referre the Reader over to that which hath beene said of them before in the handling of the Digest for they are almost twinnes of one mother so that whosoever knowes the one shall with no great difficulty discerne the other and come to the other foure yet not mentioned there But yet before I lay open the matter thereof I will in a word or two shew why this Volume of the Law is called the Code who is the author thereof and out of whom it was collected what moved the author after so many learned titles set downe before of such things as are in the Digest deduced by such a number of worthy Lawyers as the Lawes of the Digest themselves doe by their inscriptions shew for every law carrieth with him in his forehead the name of his Author to make a new flourish of the same and what the knowledge of the Code doth conferre unto a Student or practiser of the Law more than the knowledge of the Digest doth The Code therefore is named of the word Caudex that is the trunke or timber of the tree from which the barke of the tree is pill'd or pull'd off of which men anciently used to make writing-tables artificially binding them up into the forme of a booke and using them for bookes before the use of paper or parchment was knowne insomuch as many of these tables being bound together they were called a Code or booke besides whereas the ancient Lawyers Why this Tome of the Law is called the Code before Justinians time used to write their pleas and answers in scroules of paper or parchment Justinian himselfe first put them in a booke and therefore termed them by the name of a Code The Code it selfe is compiled of the answers of 56. Emperours and their wise Councell whereof sundry were What the Code is learned and skilfull Lawyers as the storie of that time doth shew and the lawes themselues doe name some of them as that most excellent and famous man Papinian and some others that is from the dayes of Adrian the Emperour unto the age of Justinian himselfe The cause that moved Justinian hereto was that in the The reason which moved the Emperour to compile the Code Digest hee found not every case decided that fals out in common use of life for how is it possible when as every moment there fals out new matter for which former lawes made no provision and therefore thought good to supplie that by new Lawes which he found defective in the old so that the multiplication of those titles grew not that the Emperour had any meaning to fill the world with multitude of Lawes for hee had found the inconvenience thereof already and therefore had repealed and abolished so many thousand of old Lawes as he had but it came rather of that that the multitude of causes were so many that every day there fell out some unexpected thing that was never heard of before beside notwithstanding the carefulnesse of the Emperour himselfe and his great Lawyer Tribonian and others whom he used for the selecting and choosing out of the purest best and most agreeing Lawes among themselves out of that indigested heap of Lawes he then abolished yet they were not so quick sighted but in that great worke sundry antinomies or contrary Lawes past them which had need to be expounded and amended and the Authors to be recited Further sundry of ancient Lawes were so subtilely written that there was more wit than profit in them so that it was expedient the Emperour should explain the same putting all subtility aside give a right sence unto the Law Lastly whereas many things were delivered by them briefly and therefore obscurely the Law-giver in his Princely wisdome set out the same in other Lawes more plentifully and distinctly all which were the chiefest causes why the Emperour set out the booke of the Code The Code neither in style nor in methode cometh to The difference betweene the Digest and the Code the perfection of the Digest as that which for the style is a barbarous Thracian phrase Latinized such as never any mean Latinist spake whereas notwithstanding the style of the Digest is very grave and pure and such as doth not much differ from the cloquentest speech that ever the Romans used and for the methode it hath no particular disposition other than such as is borrowed of the Digest it selfe and otherwise is rude and unskilfull where it doth recede from the same yet doth it not lack his good use for to such as follow the practice of the law the knowledge of the Code is much more expedient than the knowledge of the Digest is for that the lawes of the Code doe determine matters in daily use of life which because they are a like in all ages for the same is evermore upon the stage the persons a little altered it cannot be but the learning thereof must be very profitable and expedient for the Common-wealth whereas notwithstanding the learning of the Digest stands rather in discussing of subtill questions of the Law and enumerations of the variety of opinions of ancient Lawyers thereupon which have more commendation of wit than benefit toward the common-wealth in them but hereof hitherto SECT 2. The Argument of the first Booke of
Levell and Line The Canon Law consisteth partly of certaine Rules taken out of the holy Scripture partly of the Writings of the ancient Fathers of the Church partly of the ordinances of generall provinciall Councels partly of the Decrees of Popes of former ages Of the Canon Law there are two principall parts the Decrees the Decretals The Decrees are Ecclesiasticall constitutions made by the Pope and Cardinals at no mans suit are either Rules taken out of the Scripture or Sentences out What is the antiquity of Decrees and who were the Authors that compiled them of the ancient Fathers or Decrees of Councels The Decrees were first gathered together by Ivo B. of Carnat who lived in the time of Vrban the 2. about the yeare of our Lord God 1114. but afterward polished perfected by Gratian a Monk of the Order of S. Bennet in the yeare * Trithem in his second Booke De viris illust saith that Gratian wrote this Worke at Bononia in the Monasterie of S. Felix Anno 1127. Others say it was done in the yeare 1151. Bellarmine to reconcile the difference saith that Gratian might begin the work according to the first account and finish it according to the second 1149. and allowed by Eugenius the Pope whose Confessor hee was to bee read in Schooles and to be alledged for Law Of all the severall Volumes of the Canon Law the Decrees are the ancientest as having their beginning from the time of Constantine the great the first Christian Emperour of Rome who first gave leave to the Christians freely to assemble themselves together and to make wholsome lawes for the well government of the Church The Decrees are divided into three parts wherof the first teacheth of the origen and beginning of the Canon Law and describeth and setteth out the rights dignities degrees of Ecclesiasticall persons and the manner of their elections ordinations and offices and standeth of one hundred and one distinctions The second part setteth out the causes questions and answers of this Law which are in number 36. and are full of great varietie wisdome and delight The third and last part conteineth matter of consecration of all sacred things as of Churches bread and wine in the Sacrament what dayes and Feasts the Primitive Church used for the receiving thereof of the ministring of the Sacraments in Baptisme and the use of imposition of hands all which is set out under five distinctions SECT 2. What the Decretals are and how many parts they comprehend THe Decretals are Canonicall Epistles written either by the Pope alone or by the Pope and Cardinals at the instance or suit of some one or more for the ordering and determining of some matter in controversie and have the authoritie of a law in themselves Of the Decretals there be three Volumes according to the number of the Authors which did devise and publish them The first Volume of the Decretals was gathered together by Raymundus Barcinius Chaplain to Gregory the ninth at his the said Gregories commandement about the yeare 1231. and published by him to be read in Schooles and used for Law in all Ecclesiasticall Courts The second is the worke of Boniface the eight methoded by him about the yeare 1298. by which as hee added somthing to the ordinance of his Predecessours so he tooke away many things that were superfluous and contrarie to themselves and reteined the rest The third Volume of the Decretals are called the Clementines because they were made by Pope Clement the fifth of that name published by him in the Councell of Vienna about the yeare of grace 1308. To these may be added the Extravagants of John the xxij some other Bishops of Rome whose authors are not known and are as Novell constitutious unto the rest SECT 3. What is contained in the first Booke of the Decretals EVery of the former Volumes of the Decretals are divided into five Bookes and containe in a manner one and the same titles whereof the first in every of them is the title of the blessed Trinitie and of the Catholick faith wherein is set downe by every of them a particular beliefe divers in words but all one in substance with the ancient Symbols or beliefe of the old Orthodoxe or Catholick Church Secondly there commeth in place the treatie of Rescripts Constitutious Customes the authority of them when they are to be taken for Law after followeth the means wherby the greater Governours of the Church as namely Archbishops Bishops such like come unto their roome which was in two sorts according as the parties place or degree was whē he was called unto the roome as if he were under the degree of of a Bishop was called to be a Bishop or being a Bishop was called to be an Archbishop or to be the Pope himselfe hee was thereto to be elected by the Deane and Chapter of the Church where hee was to be Bishop or by the Colledge of the Cardinals in the Popedome but if hee were already a Bishop or an Archbishop were to be preferred unto any other Bishoprick or Archbishoprick then was he to be required by the Church he was desired unto and not elected which in the Law was called Postulation after Postulation followed translation by the superiour to the See to which hee was postulated or required after Election followed Confirmation Consecration of him that was elected which both were to be done in a time limited by the Canōs otherwise the party elected lost his right therin Bishops and other beneficed men sundry times upon sundry occasions resigne their benefices and therefore is set downe what a renunciation or resignation is who is to renounce and into whose hands and upon what causes a man may renounce his benefice or Bishoprick and because under-Ministers are oftentimes negligent in their Cure that the people in the meane time may not be defrauded of Divine Service the Sacraments the food of the word of God it is provided that the Bishop shall supply the negligence of such Ministers as are underneath him in his Jurisdiction besides because holy orders are not to be given but by imposition of hands with prayer and fasting * The old Romans instituted three yearely Solemnities in honour of their Gods for the Fruites of the Earth These also the Romish Church observed having first moderated their superstition and directed them to a more sacred end To the three one of their Popes as they say added the fourth with a respect had to those of the Jewes in Zech. 8. 19 and so they were called Iejunia quaiuor temporum Their institution at the first had many other causes for which see the Sermons of Leo and Durants Rationale but in after times at these Solemnities especiall regard was had to the Ordination of Priests and Deacons which had beene formerly performed onely once a yeare in the Moneth of December as Amalarim hath observed It seemeth therefore
of Divine Service and the Eucharist of Baptisme and the effect thereof of a Priest not baptized of Fasting Purification of women and other like ceremonies pertaining to Ecclesiasticall discipline Of building and repairing Churches and of their Church-yards and the immunitie that belongs to them both and of sundry other things in like sort pertaining to the Church That Clerks and other Ecclesiasticall men trouble not themselves about Civile matters contrarie to their office and profession SECT 6. What is conteined in the fourth Booke of the Decretals THe fourth Booke disposeth of matters of Espousals and Matrimonie and sheweth what words make Espousals what Matrimonie of the Betrothing of such as are under age of clandestine Espousals and Contracts and of what account they are to be had of in the Church and how they may be made good Of her that hath betrothed her selfe to two men whose wife shee shall be what conditions may be put in Espousals and what not what Clerks or Votaries may marrie and what not Of him that hath married her with whom before he hath committed adulterie and whether the same second Matrimonie be good whereupon the resolution of the Law is that if the woman knew not that he had an other wife hee cannot leave her his first wife being dead under pretence he had an other wife alive when he married her but if shee knew of it and did joyne with him in practise for making away his wife he cannot marry her no though he were seperated from the other as concerning bed and boord Whether leprous men and other which are infected with like contagious diseases may marrie and whether being married the marriage may not be dissolved upon this point Of kinred Spirituall or Legall and in what sort they hinder marriage of him that hath knowne his owne wifes sister or his owne cousin german and whether this offence doe breake the Matrimonie that is contracted or doe hinder the Matrimonie that is to be contracted Within what degrees of consanguinitie or affinitie a man may marrie Of such as are cold of Nature or inchanted by Sorcery whether they may marrie the like respect is of women who are unfit for men Of such as marrie against the Interdict or prohibition of the Church and what penaltie they incurre What children be held legitimate who they be that may be accusers or witnesses in cases of dissolution of Marriages betweene man and wife Of Divorces betweene man and wife which are caused by the diversitie of mindes that are then betweene them for that one seeketh to goe apart from the other and in what cases divorces are allowed and how many kinds there be of them of gifts betweene man and wife what securitie they have in Law and that the Dowrie after the divorce be restored to the woman so that it be not in case of Adultery and other such like filthinesse Of second Marriages in what cases they are to be permitted in what not SECT 7. What is the subject of the fifth Booke of the Decretals THe fifth Booke treateth of such Criminall matters as are handled in Ecclesiasticall Courts wherin the proceeding is either by accusation whereto the Accuser doth subscribe his name because it tendeth to punishment or else by denunciation whereto the Informer doth not subscribe his name because it tendeth only to the amendment of the party or by Inquisition which for the most part is not used but upon fame precedent albeit somtimes it be without fame if once the fame be proved then may enquirie be had of the trueth of the fact but yet without malice or slander The Criminall matters which are prosecuted in the Ecclesiasticall Courts and censured by Canonicall punishments are Symonie and selling of Ecclesiasticall graces and benefices whereupon Prelates are forbid to let out their Jurisdictions under an annuall rent and Masters and Preachers to teach for money The punishment of Jewes and Saracens and their servants that is If a Jew have a servant that desireth to be a Christian the Jew shall be compell'd to sell him to the Christian for xij pence That it shall not be lawfull for them to take any Christian to be their servant That they may repaire their old Synagogues but not build new That it shall not be lawfull for them upon good Friday to open either their doores or windowes That their wives neither have Christian Nurces nor themselves be nurces to Christian women That they weare divers apparell from the Christians whereby they may be knowne and other ignominies of like sort Who be Hereticks and what be their punishments who be Schismaticks and what be their punishments Of Apostates Anabaptists and their punishments Of those that kill their owne children and their punishments Of such as lay out young children and other feeble persons to other mens pitie which themselves have not and how they are to be punished Of voluntarie or casuall murthers Of Tilts Barriers and Tornament Of Clerks that fight in combate Of Archers that fight against Christians Of whoredome and adulterie and how they are to be punished Of such as ravish women and their punishment Of Theeves and Robbers Of usurie and the paine thereof Of deceit and falshood Of Sorcerie Of collusion and cosenage and the revealing of the same Of childrens offences and that they are not to be punished with the like severitie as mens offences are Of Clerks hunters or hawkers who if they often times use and sport themselves therein if they be Bishops they are to be suspended from the Communion three moneths if Ministers or Priests two but if he be a Deacon he is to be suspended from his office If a Clerk often times strike other men and being admonished to forbeare such kind of violence doe neverthelesse continue in his folly he is to be deposed If a Bishop cause any man rigorously to be whipt he is to be suspended from saying service two moneths Such as speak ill of Princes and other like great persons spirituall or temporall are to be punished so that others by their example may take heed to speake ill specially such as blaspheme the Majestie of the Almighty God If Clerks excommunicated deposed or interdicted or that came to the highest order without passing thorough the inferiour orders or that came to the same order covenously and deceitfully or being not ordered at all or at the least not ordered lawfully dare take upon thē either to minister the holy Sacraments or to say divine Service they are to be deposed from their office and from their benefice and never after to be ordered Prelates are not to greeve their subjects either with rash suspension or excommunication of their persons or interdicting of their Churches but they are to execute all those censures of the Church in judiciall order they are not easily to suffer any man to hold two Benefices where one may suffice or to reteine any thing to his owne use in a Church wherein he hath collation or
passage will I note which of them have beene most chiefly oppugned and as occasion shall fall out speake of them PART III. CHAP. I. SECT 1. How the Jurisdiction which is of Civile and Ecclesiasticall cognisance is impeached by the Common Law of this Land and first of the impeachment thereof by the Statute of Praemunire facias ANd thus much as concerning those parts of the Ecclesiasticall Law which are here in use with us Now it followeth to shew wherby the exercise of that Jurisdiction which is granted to bee of the Civile and Ecclesiasticall cognisance is defeated and impeached by the Common Law of this Land which is the third part of this Division The impeachment therefore is by one of these meanes by Praemunire by Prohibition by Injunction by Supersedeas by Indicavit or Quare impedit but because the foure last are nothing so frequent nor so harmfull as the others and that this Booke would grow into a huge volume if I should prosecute them all I will onely treat of the two first and put over the rest unto some better opportunitie A Praemunire therefore is a writ awarded out of the Kings What is a Praemunire Bench against one who hath procured out any Bull or like proces of the Pope from Rome or else-where for any Ecclesiasticall place or preferment within this Realme or doth sue in any forreine Ecclesiasticall Court to defeat or impeach any Judgement given in the Kings Court whereby the body of the offender is to bee imprisoned during the Kings pleasure his goods forfeited and his lands seized into the Kings hand so long as the offender liveth This writ was much in use during the time the Bishop of Rome's authoritie was in credit in this land and very necessarie it was it should be so for being then two like principall authorities acknowledged within this Land the Spirituall in the Pope and the Temporall in the King the Spirituall 25. Ed. 2. 27. Ed. 3 c. 1. 38 Ed. 3. c 1. 2. 7. Rich. 2. c. 12. 13. Rich 2. c. 2. 2. H. 4 cap. 3. grew on so fast on the Temporall that it was to be feared had not * Neverthelesse even out of these Statutes have our Professours of the Common Law wrought many dangers to the Jurisdiction Ecclesiasticall threatning the punishment conteined in the Statute Ann. 27. Edw. 3. 38. ejusdem almost to every thing that the Court Christian dealeth in pretending all things dealt with in those Courts to be the disherison of the Crowne from the which and none other fountaine all Ecclesiasticall Jurisdiction is now derived whereas in trueth Sir Thomas Smith saith very rightly and charitably that the uniting of the Supremacie Ecclesiasticall and Temporall in the King utterly voideth the use of all those Statutes Nam cessante ratione cessat lex and whatsoever is now wrought or threatned against the Jurisdiction Ecclesiasticall is but in emulation of one Court to an other and by consequent a derogation of that authority from which all Jurisdiction is now derived and the maintenance whereof was by those Princes especially purposed D. Cowel in the Interpreter these Statutes beene provided to restraine the Popes enterprises the spirituall Jurisdiction had devoured up the temporall as the temporall now on the contrary side hath almost swallowed up the spirituall But since the forreine authoritie in spirituall matters is abolished and either Jurisdiction is agnised to be setled wholly and onely in the Prince of this land sundry wise mens opinion is there can lye no Praemunire by those Statutes at this day against any man exercising any subordinate Jurisdiction under the King whether the same bee in the Kings name or in his name who hath the same immediatly from the King for that now all Jurisdiction whether it be Temporall or Ecclesiasticall is the Kings and such Ecclesiasticall Lawes as now are in force are called the Kings Ecclesiasticall Lawes and the Kings Ecclesiasticall Courts for that the King cannot have in himselfe a contrarietie of Jurisdiction fighting one against the other as it was in the case betweene himselfe and the Pope although hee may have diversitie of Jurisdiction within himselfe which for order sake and for avoyding of confusion in government hee may restraine to certaine severall kindes of causes and inflict punishment upon those that shall goe beyond the bounds or limits that are prescribed them but to take them as enimies or underminers of his state he cannot for the question here is not who is head of the cause or Jurisdiction in controversie but who is to hold plea thereof or exercise the Jurisdiction under that head the Ecclesiasticall or Temporall Judge Neither is that to move any man that the Statutes made in former times against such Provisors which vexed the King and people of this land with such unjust suits doe not only provide against such Proces as came from Rome but against all others that came else-where being like conditioned as they for that it was not the meaning of those Statutes or any of them therby to taxe the Bishops Courts or any Consistory within this land for that none of them ever used such malepert sawcinesse against the King as to call the Judgements of his Courts into question although they went farre in strayning upon those things and causes which were held to be of the Kings temporall cognisance as may appeare by the Kings Prohibition thereon framed And beside the Archbishops Bishops and other prelates of this Land in the greatest heat of all this businesse being then present in the Parliament with the rest of the Nobility disavowed the Popes insolencie toward the King in this behalfe and assured him they would and ought to stand with his Majestie against the Pope in these and all other cases touching his Crowne and Regalitie as they were bound by their allegeance so that they being not guilty of these enterprises against the King but in as great a measure troubled in their owne jurisdiction by the Pope as the King himselfe was in the right of his Crowne as may appeare out of the course of the said Statutes The word Elsewhere can in no right sence be understood of them or in their Consistories although Et le stat est in Curia Romana vel alibi le quel alibi est a entender en la Court l'Euesque issint que si hōme soit sue la pur chose que appent al Commen ley il aura Praemunire Fitzherb Nat. Bre. Tit. Praemunire facias some of late time thinking all is good service to the Realme that is done for the advancement of the Common Law and depressing of the Civile Law have so interpreted it but without ground or warrant of the Statutes themselves who wholly make provision against forreine authority and speake no word of domesticall proceedings But the same word Elsewhere is to be meant and conceived of the places of remove the Popes used in those dayes being
translate unto themselves matters of Marine triall if they be squared to these Rules of Fictions can bee maintained for first to speake of equitie which the Law requires in these manner of proceedings what equitie can it be to take away the triall of such businesse as belongeth to one Court and to pull it to an other Court specially when as the Court from whence it is drawne is more fit for it both in respect of the fulnesse of knowledge that that Court hath to deale in such businesse and also of the competencie of skill that is in the Judges Professours of those Courts correspondent to these causes more than is in the Judges and Professours of the other Courts for the deciding and determining of these matters For albeit otherwise they are very wise and sufficient men in the understanding of their owne profession yet have they small skill or knowledge in matters pertaining to the Civile profession for that there is nothing written in their Bookes of these matters more than is to be gathered out of a few Statutes of former time whose drift was not to open any doore unto them to enter upon the admirall profession but to preserue the Kings Jurisdiction from the Admirall incroachment as may by the said Statutes appeare whereas contrarily the Civile Law hath sundry titles included in the body thereof concerning these kindes of causes whereupon the Interpreters of the Law have largely commented and others have made severall Tractates thereof So that by all likelihood these men are more fit and better furnished to deale in this businesse than any men of any other profession as having besides the strength of their owne wit other mens helpes and labours to relie upon Besides this businesse many times concerns not only our owne countrey-men but also strangers who are parties to the suit who are borne and doe live in countries ordered by the Civile Law whereby they may bee presumed to have more skill and better liking of that Law than they can bee thought to have of our Lawes and our proceedings and therefore it were no indifferencie to call them from the triall of that Law which they in some part know and is the Law of their countrey as it is almost to all Christendome besides to the triall of a Law which they know in no part and is meere forraine unto them specially when the Princes of this Land have anciently allowed the Civile Law to be a Common Law in these causes as well to their owne subjects as it is to strangers Further the avocating away of causes in this sort from one Jurisdiction to another specially when the cause hath long depended in the Court from whence it is called insomuch as now it is ready for sentence or rather is past sentence and stands at execution cannot be but great injurie to the subject after so much labour lost and money spent in waste to begin his suit anew againe which is like to Sysiphus punishment who when he hath with all his might forced his stone up to the top of the hill and so is as himselfe hopes at an end of his labour yet the stone rowles downe again on him and so his second labour his strength being spent with the toyle of the first is more grievous than the former was which being semblably true in a poore Clyent who hath his cause in hearing there can be no equity in this fiction whereby a cause so neere ended should againe be put upon the Anvill as though it were still rough worke and new to be begun And surely as there is no equity in it so there is no possibility such a fiction should be maintained by Law for that it hath no ground of reason to rest his feete on For if this be granted that such a fiction by Law may be made then one of these absurdities must needes follow either that a shippe may arive in a place where no water is to carry it or if that it arive according to the fiction either the people their houses and their wealth shall be all overwhelmed in the water as the world was in Noahs Floud Ducalions Deluge and so no body there shall be left alive to make any bargain or contract with the Mariners Shipmen that arive there or that the people that dwell there shall walk upon the water as people doe on land which Peter himselfe was not able to doe but had suncke if Christ had not reacht his hand unto him and therefore far lesse possible for any other man to doe So that it may bee well said these things standing as they doe no such fiction can hold and that no action can be framed upon it for as there is no Obligation of impossible things so there is no Action of things that neither Nature nor Reason will afford to be done neither is it to the purpose that the maintainers of these fictions doe say that in this case the place where the contract is made is not considerable which I take to be farre otherwise for that when that themselves will convey a Marine cause from the Sea unto the Land they will lay it to bee done in some speciall place of a Countrie bee the place never so unproper for such an action for that the foundation of these actions is the place where they were done as namely that they were done in the body of such a Country or such a Country and not upon the maine Sea or beneath the lowest bridge that is upon any great river next the Sea And therfore in two emulous Jurisdictions when they are so divided as that one is assigned the sea the other the land the place of the action can in no sort be suppressed and another supplyed in the roome thereof Quod enim una via prohibetur alia via non est permittendum quod prohibitum est directo prohibetur etiam per obliguum for if this were granted then matter enough would bee offered to one Jurisdiction to devour up the other and the Law would be easily eluded which to restraine either of these Jurisdictions to their owne place and to provide that one in his greatnesse doe not swell up against the other hath set either of them their bounds and limits which they shall not passe which as it is the good provision of the Law so ought either Jurisdiction in all obedience to submit it selfe thereunto for that the diminishing of either of them is a wrong to the Prince from whom they are derived who is no lesse Lord of the Sea than hee is King of the Land and therefore in no sort such liberty must be allowed to the one directly or indirectly as that it should be a spoile unto the other which would easily come to passe if when as the Law alloweth not any man to sue a Marine matter by the ordinary course of the Lawes of this Land yet a man will follow it by an extraordinary But where there is an
hold plea of any thing that is in the said Proviso conteined but it is rather directive and sheweth where the Ecclesiasticall Judge is to give way to immunities and to pronounce for them so that for any thing is conteined in this Proviso to the contrary the cognisance of these matters especially Priviledge Prescription and Composition still remaineth at the triall of the Ecclesiasticall Law as they did before this Proviso was made for Deprascript lib. 2. tit 26. De Privileg lib. 5. tit 33. Tythes and other Ecclesiasticall dueties as may appeare by the severall titles in the same Law hereon written And for the other words Law and Statute therein mentioned when as the King hath two Capacities of government in him the one Spirituall the other Temporall and his high Court of Parliament wherein Lawes are made doth stand as well of Spirituall men as Temporall men and so ought to stand in both houses if the ancient Booke De modo tenendi Parliamenti be true and authenticall which makes the upper House of three States the Kings Majestie the Lords Spirituall and the Lords Temporall and the lower House in like sort of three other the Knights the Procurators for the Clergie and the Burgesses and his Majestie hath within this Realme aswell Ecclesiasticall Lawyers as Temporall which are no lesse able to judge and determine of Ecclesiasticall matters then the Temporall Lawyers of temporall businesse It is not to be imagined but as his sacred Majestie will have those Lawes to be held Temporall and to have their constructions from Temporall Lawyers which are made and promulged upon Temporall rights and causes So also his Highnesse pleasure is and ever hath beene of all his predecessours Kings and Queenes of this Land that such Lawes and Statutes as are set out and published upon Ecclesiasticall things and matters shall be taken and accounted Ecclesiasticall and interpreted by Ecclesiasticall Lawyers although either of them have interchangeably each others voyce in them to make them a Law And that the King doth infuse life into either of the Lawes when as yet their substance is unperfect and they are as it were Embryons 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 even the orders of the House doe evince that there are two sorts of Lawes in that place unconfounded both in the head and the body although for communion sake and to adde more strength to each of them the generall allowance passeth over them all And as they rest unconfounded in the creation of them so ought they to be likewise in the execution of them as the Temporall Law sorts to the Temporall Lawyers so the Spirituall Lawes or Statutes should be allowed and allotted unto the Spirituall Lawyers And as the nomination of these words Law or Statute in this precedent Proviso makes not the Law or Statute Temporall but that it may remain wholly Ecclesiasticall by reason of the Spirituall matters it doth containe the power of him that quickneth it powreth life thereinto so much lesse can the inserting of these tearmes Priviledges Prescriptions or Composition reall intitle the Common Law to the right thereof or the Professours of the said Law to the interpretation thereof for that matters of these titles so farre as they concerne Tythes and other Ecclesiasticall dueties have beene evermore since there hath beene any Ecclesiasticall Law in this Land which hath beene neere as long as there hath beene any profession of Christianitie with us of Ecclesiasticall ordinance neither ever were of the Temporall cognisance untill now of late that they transubstantiate every thing into their owne profession as Midas turned or transubstantiated every thing that hee touched into gold CHAP. III. SECT 1. How it comes to passe that when tythes were never clogged with custome prescription or composition under the Law they are clogged with the same under the Gospel and the causes thereof BUt here it will not bee amisse to inquire since Tythes came in the beginning of the primitive Church within a little time after the destruction of Jerusalem and the subversion of the Jewes policie unto the Christian Church and common-wealth void of all these incumbrances as shall appeare after by the testimonie of sundrie of the ancient Fathers which were neere the Apostles time how it comes to passe since Tythes are no lesse the Lords portion now than they were then and in the Patriarches time before them that these greevances have come upon them more under the Gospel than ever they did under the Law for then never any Lay man durst stretch out his hand unto Malach. 3. them to diminish any part thereof but hee was charged with robberie by the Lords owne mouth and in punishment thereof the heavens were shut up for giving raine unto the earth and the Palmer-worme and Grashopper were sent to devour all the greene things upon the earth And for Ecclesiasticall men it is not read any where in the Scripture that ever they attempted to grant out any priviledge of Tythes to any person other than to whom they were disposed by the Law or to make any composition thereof betweene the Lay Jew and the Lords Levites every of the which have beene not onely attempted against the Church in Christianitie but executed with great greedinesse so farre worse hath beene the state of the Ministery under the Gospel than was the condition of the Priests and Levites under the Law SECT 2. That the causes are two fold First The violent intrusion of Lay men and secondly The over-much curiositie of Schoole men and first of the first cause and therein concerning Charles Martels Infeudations and the violent prescriptions ensuing thereupon THe beginning whereof although it be hard for mee to finde out because there is small memory thereof left in Stories yet as farre as I can by all probabilities conjecture this great alteration in Ecclesiasticall matters came by two occasions the one by the violence of the Laitie thrusting themselves into these Ecclesiasticall rights contrary to the first institution thereof for when they were first received into the Christian world they were received and yeelded to for the benefite of the Clergie onely as in former time under the Law they had beene for the use of the Priests and â—evites onely The other was the too too much curiositie of Schoolmen who being not content with the simple entertainment of Tythes into the Church as the ancient Fathers of the primitive Church received them would needes seek out how and in what right and in what quantitie this provision belongs unto the Church wherein they did by their overmuch subtilty rather confound the truth than make that appeare which they intended to doe By the first of these was
restore them restore them to the Churches from whence they were taken which had beene most agreeable to the ordinance of the Church set down by Dionysius who first devided Parishes and assigned unto them Tythes as hath beene aforesaid and also to the Scripture it selfe Deut. 18. from whence Dionysius tooke his light to divide 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 Levite Thus much we have set downe concerning the Generall Curse not hoping to fright any man into devotion with this black Sentence or to propose such distempered pietie for an example but that it might bee considered how horrible a crime it was in our Forefathers account to rob the Church in the least particular And indeed they conceived no more hope of a man that died under this Damnosum Theta than of him that dyed in a mortall sinne nay much lesse for the Canterbury Booke saith that many Clerkes preuen at the day of dumme wuld our Lady Saint Mary and Saint John Baptist and all Saints that bene in heauen knele downe at once before the blessed face of Almightye God they shulen not in that tyme thorowe the prayer of them all deliver the Soule of man or woman that dyeth in deadly sinne c. And if the day of dumme shall be so heard to all thoe that dyen in any deadly synne by all reason full myche harder shall it be at that tyme with all those that bee founden openly cursed of God and of holy Church c. Thus we see what furies followed this Sacriledge in the opinion of our Forefathers who were so confident that a Church-robber could not escape the Judgement of God that they delivered him over to Satan or as they say cursed him with the More and with the Lesse Curse with Bell Booke and Candle The Clergie of the present time gives better language than thus what cause they may have I will not say It may bee accounted for wisdome that their injuries cannot bee judged by their clamours yet the Ages to come must not say that these things were done Nobis dormientibus The experience of the Emperours Charles the Great and Lewis the Godly would be noted to this purpose out of their Capitulars Novimus say they multa Regna Reges eorum propterea cecidissè quia Ecclesias spolia verunt résque earum vastaverunt abstulerunt alienaverunt vel diripuerunt Episcopisque Sacerdotibus atque quod magis est Ecclesus eorum abstulerunt pugnantibus dederunt quapiopter nec fortes in bello nec in fide stabiles fuerunt nec victores extiterunt sed terga multi vulneratt 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 plures interfects vexterunt regnaque regionem quod peâ—us est regna coelesta perdiderunt atque proprus haereditatibus caruerunt hactenus carent So they in the 7. Book of the Capâ—â—ul c. 104. fol. 214. Edit Paris 1603. Whereas the Capitular attributeth those grand enormities their ill successe to the Kings of that time it is not now to be so understood Farre be it ever from us to thinke otherwise than divinely of these our most Religious Princes by whose gratious protection the Church hath bin of late so miraculously blest As for others among us they may apply this to themselves as they shall be troubled with cause and occasion The great Impostor in his Alcoran though he cozened all the world besides yet he would not defraud the Church De Decimis sume saith he inde secundum morem consuetum operare Inscus te subtrahe semper So our Robert of Reading translateth But hee that reades Roberts Translation must not alwayes thinke he reades he Alcoran The Prophets owne text is in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Surato laaraph which in our manuscript Alcorans is the 8. c. the 17. in Roberts Translation 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is Give command concerning Tythes and beware of Clownes the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 may bee otherwise understood but if this were not Mahumet's meaning the matter is not great for we have better Prophets to preach this Doctrine him liked but hee must pay them to the Priest or Levite that dwelt in the place where himselfe made his abode but yet this libertie that was given them by the Councell then gave cause unto the errour that the Common Lawyers hold at this day not knowing the ancient proceedings of the Church in these cases that before the Lateran Councell it was lawfull for every man to give his Tythes to what Church he would which was so farre otherwise as that before this violence offered unto the Church there was a flat Canon more ancient than the fact of Charles Leo 4. 13. 9. 1 c. Eccl. Martellus which did precisely forbid any man to pay or a Bishop to give leave to any man to pay his Tythes from the * The Rites of Baptisme in the primitive times were performed in Rivers and Fountaines where the persons to be baptized stood up and received that Sacrament therefore it is that the Sonne of Azalkefat in the Arabick Gospels useth the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Amada to baptize which word also beareth the same sense in the Syriack and is often mentioned by Patriarch Severus in his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Order of baptizing the Saints The reason in both Dialects is the same for that the word Amada is by the Syrians and Arabians derived from the Hebrew Amad which signifieth to stand up This manner of baptizing the ancient Church entertained from the example of our Saviour who baptized Iohn in Iordan And some say that this was very tolerable in those Easterne parts but certaine it is that it was most coÌ„venient for that time because their Converts were many and men of yeares A reason also may be for that those ages were otherwise unprovided of Fonts and such conveniences which are now in use and this hath beene a cause why this manner of baptizing was resum'd in after-times and other places for our venerable Bede telleth us of some that were baptized heere in England in the River Swale which runneth through a part of Yorkeshire in the North Riding and hee giveth the same reason Nondum enim Oratoria vel Baptisteria in ipso exordio nascentis thi Ecclesia poterant adificari Ecclesiast hist lib. 2. cap. 14. The dayes we now live in have no other remainder of this Rite of Baptizing in Rivers and Fountaines than the very name for hence it is that wee call our vessels that containe the water of Baptisme Fonts or Fountaines This custome of Baptizing in Rivers and Fountaines being discontinued Fonts were erected in private houses but the violent persecutions of those times barr'd the Christians of that convenience therefore their next recourse was to woods and devious places and there they accommodated themselves with such Baptisterials as they could In more
and carnall men seeke for very greedily humbling themselves onely to God and the rule of their Master Which thing bred such an admiration of him and of his Schollers that not only many other Ordes sprang out from them within few yeares as the Praemonstratenses Cluniacenses Templarians Hospitallers Cystertians and the order of Saint John of Jerusalem but even Popes Princes and people were wholly carried away with the wonderment of them insomuch as every of them did as it were strive who might shew themselves most kinde unto them whereupon Princes built them houses every one in his Kingdome as Clito Ethelbald King of Mercia built the Monasterie of Crowland here in England of blacke Monkes under the rule of the said Benedict in the yeare 716. Popes and Princes granted them priviledges so farre as it concerned either of their particulars the Clergie Nobilitie and People conferr'd goods and lands upon them every one according to his abilitie SECT 3. That the admiration which these Religious Men did breed of themselves in the head of Princes and Popes did procure appropriations of Parsonages and Immunities from Tythes And that the over-conceit which men had of Prayer above Preaching in the Church was an adjuvant cause thereunto IN this zealous bounty of every degree towards these new sorts of men there are two undigested Priviledges granted them both of them so hurtfull and injurious to the Church of God as never any was the like The one was the Annexation or Appropriation of presentative Benefices to these Religious Houses The other the freeing of such Lands or Hereditaments as they held in sundry Parishes from the payment of Tythes to the Parsons and Vicars thereof to both of which the School-mens Divinity gave great advantage as shall be shewed hereafter Either of these had their beginning of one roote that is to say of this false ground that Preaching which is the most true and most naturall foode of the Soule in a Congregation that is come to the profession of Religion already and knowes but onely the Articles of the Christian Faith the Lords Prayer the Ten Commandements Linwood provin eisdem de offic Archidiacont cap. Igncrantia Sacerdotum de officio Archipresbyters and other Principles and Rudiments of Christian Religion is nothing so necessary for the Salvation of a mans Soule as Prayer is Besides that Preaching oftentimes gives more cause of Schisme and dispute in Religion than it doth of profiting and edifying the Soule and therefore it was not permitted by the Provinciall Constitutions of this Realme that Parsons or Vicars of Churches should expound or preach any other matter or doctrine than the Lords Prayer the Ten Commandements the two Precepts of the Gospel that is the love of God and the love of a mans Neighbour the sixe workes of Mercy the seven principall Vertues the seven Sacraments for so many then the Romish Church held the seven deadly Sinnes with their progeny and this to be done vulgarly and plainely Absque cujustibet subtilitatis texturafautastica for so they call learned and orderly Preaching whereas notwithstanding Prayer is evermore profitable every where necessary and never dangerous Furthermore Preaching onely profiteth those that be present and doe beare it and attend upon it but Prayer is availeable even to those that be farre distant yea though they be in the remotest place of the world By which and other like arguments they translated away that maintenance that was provided for the home Pastors who by Gods owne institution were to watch over their Soules to forreine and strange Guides who never communicated to their necessitie in any heavenly comfort but onely tooke the milke of the flock and fed themselves withall But by this pretence of theirs ought not Preaching to have beene disgraced for albeit Prayer bee a necessarie peece of Gods service and so necessary that the Soule of man is as it were dead without it yet is it not †But here it will neede that the Reader use a sober judgement for it cannot but bee thought unequal that Prayer and Preaching should bee so unwarily plac'd in competition as that Prayer should lose by the comparison There may bee alwayes neede of Preaching but then most of all when the Auditorie is unchristian This reason prevailed for all places in the first times but in these last onely for some according to which it were unprofitable to goe about to convert the Indies no otherwise than by our Prayers Yet even in those primitive times which had most cause to call for Preaching we shall find that this duty was of rarer exercise lesse solemnity than that of Prayer as it may abundantly be discovered out of the Liturgies of both the Charches And it is observeable that where Preaching hath beene of the greatest account it hath bin so much beholden to Prayer that it was not onely begun and ended but also discontinued by devotion For wee shall finde the Reverend Fathers Chrysostome and Basil of Seleucia at prayers in the middle of a Sermon See the one in his 39. Orat. the other in his 3. Hom. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Moses the Sonne of Maimon that profound Doctor of the Iewes instituting a comparison betwixt their Sacrifices and the more substantiall Services required in stead of all other nameth that of Prayer and Invocation and of these hee saith that they are c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nearer to Gods first intention and that our way thereunto is bythem afterwards he saith that these are necessarie 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 at all times in all places and for every man See his More Neuoch Helec 3. C. 32. p. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And holy Antioch in his 106 Hom. which is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 saith of Prayer 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that it is of a more sublime Condition than any other vertue And how our Lord himself stood affected to this wee may acknowledge by that where hee calleth the Church his House of Prayer not Preaching which took so well in the elder times that all their Temples were known by the name of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Oratories Nay the Preacher himselfe Prov. 15. is so confident of a just mans Prayer that he dares say that God will even be obedient to it for so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is rendred by the Interpreter of the forenamed Antiochus However It may seeme to be so for when all the Preaching of Lot could prevaile no otherwise than to bring vexation to his righteous Soule the Prayers of Abraham might have saved Sodom if among so many thousands there had beene but ten just men All this while wee would not detract anything from Preaching but considering our selves to live under a State so maturely compos'd and so throughly advis'd and setled in the Faith it will be expected that we should so farre moderate our opinion of Preaching as that our magnifying thereof may no way
the Parochian Ministers of the Parishes vvhere they grew claiming the same by right Or the Temporall Judges vvhose is the Cognisance of the Tytle and Tenure of the ground as also is the setting letting buying selling and other alienating of the same For the point it selfe the Statute maketh no mention but passeth it over with silence and therefore it is to be presumed that it meant that it should there rest where it was before the making of the Statute for the Statute was not made in derogation of the Ecclesiasticall proceedings that were before but in affirmance thereof as the whole drift of the said Statute doth shew And if the Statute had meant otherwise it vvould surely have expressed it either in the proviso it self or after in the derogatory clause where it maketh an enumeration of such things as it intended should be exempted from the tryall of the Ecclesiasticall Law and by vertue of this Statute should not be comprised under the same among which there is no word of this proviso or any other in the same Statute before named Neither is it unto the purpose that the Common Law of this Land taketh knowledge of the Tenure and Title of Lands and such other complements belonging to the same for these things that are here in question are no part of those Legall Essences which the Law requireth to the Tytle and Tenure thereof as is Fee-simple Fee-taile and other of like nature according to the learning of that Law but these are certaine accidents over and beside the Tenure of the Land which may be present or absent without the injurie of the Tytle as God many times turnes flouds into wildernesse and springs of vvater againe into drinesse and a fruitfull Land makes hee barren for the wickednesse of them that dwell therein and yet the Tytle or Tenure of the ground is not changed by these changes of qualities but remaines the selfe same that it was so that these things are no more subject to the ordering of the Common Law than it is in the Common Law to judge and determine what mould is white and what is blacke what ground will beare wheat vvhat barley vvhat oats for these things are no matters of skill of Law that they need to be fetcht out of bookes but they are matters of common experience which every 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 vvith the depositions of two or three honest men which speake sensibly and feelingly to the point that is in hand vvhich is enough to direct any wise Judge in his sentence so that it needs not these long circumstances of twelve men to teach the Judge what and how truly the witnesses have deposed For if every qualitie of the ground resteth in the mouth of twelve men onely then should no man be able to say out of the mouth of a witnesse and pronounce thereupon this ground is mountaine this is plaine this is medowe this is arrable unlesse hee were warranted by the verdit of twelve men thereunto which if it be an absurditie to hold then sure it is a like absurditie to say that barren heath waste cannot be pronounced without a Jurie for that these things are like obvious to sense and of like qualitie as the others are And I pray you when they have drawne it unto their tryall what do they in effect otherwise than the Ecclehasticall Judge would or should have done if it had remained still under him for do they give credit simply to the conceit of the Jurie as touching that which hath beene declared and pleaded in the cause before them or do not the Judges themselves rather make a briefe of all that hath beene pleaded in the cause before them and thereof make as it were a verdit and put the same in the mouth of the twelve for their verdit before they goe from the barre So that the whole weight of the cause standeth rather in the Judges direction in such sort as it is at the Ecclesiasticall Law than it doth in the mouth of the Jurie for the Jurie men for the most part are simple people and scarce foure of the twelve understand their evidence so that it may seeme rather to be a matter of superfluitie than of good policie to referre a matter to their verdit vvhen as they say no other thing than what the Judge taught them before Stultum est enimid facere per plura quod fieri potest per pauciora for albeit perhaps some capricious fellow of the Jurie upon the confidence of his owne braine sometimes start aside from that which the Judge hath told him and draw the rest of his fellowes as so many sheepe after him yet for the most part the Judges voice is their direction their loadstone and the North pole to guide them in this businesse Besides in this Proviso as in some other precedent there is a great disadvantage offered to the Clergie which they much complaine of and that is that in cases of this nature they are compelled to suffer triall under them who are in a manner parties unto the suit by reason of the interest they have therein either in present or in consequence so that many now adayes learning too late by other mens harmes what the event in their owne cause will be chuse rather to lose their right than to venture their cause upon such partiall Judges as the twelve men are SECT 5. That the Boughes of great Trees are tytheable and so also are the bodies but in the case of the Statute onely ANd so far as concerning those prohibitions which are forced out of this Statute for naturally they grow not out thereof so that I might now passe over to the other branch of my division that is of such matters as are now held by the Common Lawyers to bee in a certaine measure onely of the Ecclesiasticall proceeding but were anciently wholly of the Ecclesiasticall cognisance but that the name of the Statute De Sylua caedua offering it selfe unto mee in the conclusion of this Statute of Edward the sixth gives mee occasion to speake somthing 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 twenty yeares growth and upward from the payment of Tythes and that in three cases onely where the wood was great when it was xx yeares of age and upward where it was sold to Merchants either to the profit of the owner himselfe or in ayde of the King in his warres so that without these cases it seemeth the Statute intended no further exemption for Statutes are things of strict Law and are no further to bee extended than the words thereof give matter thereunto especially when the thing it selfe naturally was liable 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 anciently was no lesse tytheable than small trees 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 bee cut downe to any other use than to sale as to build or to burne to a mans owne use a prohibition in this case lyeth and yet is there no Identitie of reason to extend it nor any absurdity would follow if it were not extended for here is neither money sought which gave occasion unto the Law-givers to make this Statute of exemption neither is it an unnaturall thing for to pay Tythes of great wood for before this time they were paid and by the Law of God it seemes they ought to bee Gal. 6. 6. paid for that he that is taught ought to communicate to him that teacheth him in all things and therefore since the reason that moved the Law-givers to order it so in one case ceaseth in the other there is no reason of exemption and when there is not an Identitie of reason in the things that are in demand there can no sound inference be brought in from the one to the other for of severall things there is a severall reason and a severall consequence neither can there bee framed thereof a good implication either positively or remotively neither hath this interpretation of theirs any warrant of Law for it save that it hath beene so defined and decided but what is that to the purpose if it hath beene wrested and wronged contrary to the true sense of the Statute and that by those that take benefit thereby whose partiality being taken away the thing it selfe would easily turne againe to his owne nature and right would take place The reason they yeeld for the exemption of great woods of the ages aforesaid although to themselves it be plausible yet to others it is strange as namely that great Trees are Plowd in Soby contra Molyns part of the Free-hold and that men use not to pay Tythes of their free-hold but of those things which spring out of their free hold as out of Corne Grasse Fruit and such other whereas indeed the tallest Timber tree that is if it were as high as the highest Cedar in Lebanon is no more part of the inheritance or free-hold than the lowest bramble that groweth in the field for they are both equally part of the ground wherein they grow and doe take alike nourishment and sustenance from the same neither doe they differ in that they are trees the one from the other secundùm magis minus as the Logicians say but in that the one is a great tree and the other a small shrub and the cause of this provision here in England for these great trees was not for that one was more of the inheritance than the other but for that the one yeeldeth more profite to the common-wealth than the other and therefore they have made the cutting downe of the one more penall than the other as in like case by the Civile Law whosoever privily cutteth downe or barketh a Vine an Olive or a Fig-tree or doth ff Arborum furtim caesarum toto tit any other unlawfull act whereby any fruitfull tree or any Timber tree doth perish and decay it is Theft and it is punished in the double value of the hurt which is done and if he be Tenant to the ground which hath done this villany he loseth his hold which commeth not of that that one kinde of Tree hath more state in the ground than an other hath but that the Law hath respected the necessary use of the one more than the other By the Civile Law although this word Wood be generall L. Ligni appellatione de Leg. 3 et L. Carbonum ff de verb. significat yet it is thus distinguished that some is wood some is Timber which the Law cals Materia Timber is that which is fit to build or underprop withall Wood is whatsoever is provided for fewell so that under that name there passeth Reed Cole Turfe Cow-dung and whatsoever is any L. Ligni appellatione §. Ofiliu◠§. idem ff de lega◠〈◊〉 where ordinarily used for fewell Timber is of a higher consideration than wood is insomuch as if a man bequeath unto an other all his wood that is in grove field there shall not passe by this legacie such Trees as are cut downe for Timber but if they were dotterd Trees or the owner thereof purposed them for fewell and so cut them out into billet or fagot in such sort as there could be no other use thereof than to burne then it is otherwise for by this meanes of great wood it is become small wood as being cut out in shides or splinters fit for to burne So that in the reckoning of the Civile Law Timber stands not onely in the nature of the wood it selfe but is in the destination and purpose of the owner who according to his good liking may make that wood which is fit for timber fire-wood or timber which if it were so in account with the great Lawyers of this Land the Church should have more Tythes of Wood appointed for fewell and lesse suite for the same As they exempt the bodies of great Trees above xx Plowd ut supr yeares growth from payment of Tythes so also they free the boughes thereof upon this reason that the boughes thereof are fit and serviceable for building which although happily may be in some of them that are next to the Trunck of the tree yet it is farre otherwise in those that are more remote from the same whereof there can bee no other use than to burne and therefore the Law precisely holds in case where wood is bequeathed by which is meant fire-wood onely unlesse the Testator otherwise expresse his minde the lops of timber trees which the Law cals Superamenta L. Ligni Appellat §. Ofilius De Leg. Fod 3. materiarum are bequeathed for that the lops have not that use that the Timber hath that is to build or prop up withall but they serve to burne onely By which severall ends there is severall consideration and account made of them Neither is it to the purpose that they alledge for the defence hereof that the accessorie followeth the nature of the principall for that rule is not true in every accessory L. Etsi C. de Praediis minorum but onely in such wherein is the like reason as in the principall which in the trunck and lop of a tree cannot bee alike for building Further how the Boughes of a tree that are of the same substance as the body of the tree is should be accessories to the tree I see not for nothing can bee an accessory to an other that is of the same nature and substance as the other is as the
respected not so much the qualitie of the crime upon which the Diffamation grew as the manner of proceeding therein ayming in the one at publique vendict which is to be sought out of the Ecclesiasticall Law and in the other at private 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 equall 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 praejudiciales that is such that draw smaller causes unto them but themselves are drawne of none other but such as are like principall or greater than themselves are So that unlesse the manner of proceeding bring these causes under the compasse of the Common Law in such sort as I have before shewed the coupling of them with another matter of the same Law will hardly bring them under the triall thereof for that there be few actions greater then it selfe is so that if the crime be Ecclesiasticall howsoever 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 be true in Diffamations springing out of Temporall crimes where punishment is required for the offence committed and amends in money is not demaunded unlesse happily that grow of penance injoyned which the offender will redeeme by giving money to the Judge or to the partie grieved And this I take to be a farre better limitation for either Law having the ground of the Civile Law and a Statute of the Common Law and common reason it selfe for it than the other divise is which so distinguisheth this businesse as still it makes it rest in the mouth of the Judge which cause of Diffamation is meere spirituall and which not which were not to be done if there were cleare dealing in the matter for Lawes are so to be made as that as little as may be be left to the discretion of the Judge but all be expressed as farre as the nature of the cause vvill give leave vvhich albeit it be hard to doe for the varietie of the cases that every day happen never thought on before yet that is to be laboured so farre as may be for this libertie of leaving many things to the Judges discretion is many times great occasion of confusion in Judicature saying sometimes this and sometimes that as his private humor shall lead him and therefore a plaine distinction betweene both the Lawes vvere best that every man may see and say vvhat is proper to either of them SECT 2. That the suit of Bastardie as well in the principall as in the incident belongs unto the Ecclesiasticall Law ANd thus farre as concerning matters of Diffamation Now followeth that I speake of matters of Bastardie Bastardie is an unlawfull state of birth disabled by divine and humane Lawes to succeed in inheritance Of Bastards some are begot and borne of single women in which ranke also I put widowes some other of married women Of single women some are such as a man may make his wife if himselfe be sole and unmarried as those that are kept as Concubines in place of a mans wife some other are such as a man cannot make his wife although himselfe be sole and unmarried for that either they are already precontracted to some other or that they be in so neere a degree of affinitie or consanguinitie one to the other that the marriage would be damnable the issue thereof unlawfull Of such as are begotten of single women by single men who are in case to marrie them if they will some are called by the Civile Law Filii Naturales because they were begot by such as they held for their wives and yet were not their wives who might be legitimate by sundry waies as hereaster shall be shewed Some other begot of single women if they were begot in vage lust without any purpose to hold such a one for a Concubine but upon a desire only to satisfie a mans present lust whether they were begotten by married men or single men were called Spurii vvho for the most part are putative children and their father is not otherwise knowne then by the mothers confession vvhich sometimes saith true sometimes otherwise Isidore saith they vvere so called because they were borne out of puritie for that such kinde of lust is contrary to holy Matrimonie whose bed is undefiled and therefore the other is corrupt and abominable But where any was borne of a woman single or married that prostituted her selfe to every mans pleasure and made publike profession of her self to be an harlot such as they are whom the Law calleth Scorta these were called Manzeres Those which were begotten of married women were called Nothi because they seemed to be his children whom the marriage doth shew but are not no otherwise than some feavers are called Nothi that is bastard feavers because they imitate the tertian or quartan Feaver in heat and other accidents but yet are neither tertians nor quartans as the learned Phisicians well know but these are counted so to bee bastards if either the husband were so long absent from his wife as by no possibility of Nature the childe could bee his or that the Adulterer and Adulteresse were so knowne to keepe company together as that by just account of time it could not fall out to be any other mans childe but the Adulterers himselfe and yet in these very cases within this Realme unlesse the husband be all the time of the impossibility beyond the Seas the Rule of the Law holds true Pater is est quem nuptiae demonstrant The most nefarious and last kinde of Bastards are they whom the Law calleth Incestuosi which are begot between Ascendents Descendents in infinitum and betweene Collaterals so farre as the Divine Prohibition and the right interpretation thereof doth stretch it selfe The effects of these sorts of Bastardies are divers First it staineth the bloud for that hee that is a Bastard can neither challenge Honour nor Armes from the Father or Mother for that he was begot and borne out of Matrimony which is the first step to Honour and therefore the Apostle calleth Marriage honourable whereupon it must H 〈…〉 13. 4 follow that the opposite thereof is shame for albeit it bee no sinne for a Bastard to be a Bastard yet is it a defect in him to be such a one and a thing easily subject to reproach Secondly it repelleth him that is a Bastard from all succession descending from the Father or the Mother whether it be in Goods or Lands unlesse there bee some other collaterall provision made for the same for that all such Lawes and Statutes as are made
reforming of that which is over-plus or defective is in the Parliament so notwithstanding as that the Prince evermore breatheth life into that which is done Lawes Statutes or Customes are then best interpreted when as the very plaine and naturall sense of them is sought after and no forraine or strained exposition is mixt with them for that turneth justice into worme-wood and judgement into gall then that the Judge be not too subtill in his interpretation but follow such exposition of the Lawes as men of former age have used to make if they be not plainly absurd and erronious for oft shifting of interpretations breedeth great variance in mens states among such as have busie heads and much discrediteth the Law it selfe as though there were no certaintie in it with which although the fage Judges of our time cannot be charged for ought that I know yet I cannot tell how men much complaine that Lawes are farre 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 the Spirituall Court where the interpretation upon the three Statutes of Tythes made by King Henry the eight and Edward his sonne among other inconstancies of other Lawes hath such great varietie of sense and understanding in sundrie points thereof as that if the makers thereof were now alive and the first expositors thereof sate in place of Judgement againe the Statutes being measured by the interpretation they now make of them vvould hardly acknowledge them either to be the Statutes that they then made or the other did after expound and declare for every of these Statutes and the sense that was given of them vvas wholy for the benefit of the Church according to the tenor thereof but as they now receive explication they are not onely not beneficiall unto the Church but the greatest hinderance to the same that may be for the words are made to jarre with the sense and the sense vvith the vvords neither is there kept any right analogie in them and therefore the Reverend Judges are to be intreated because they challenge unto themselves the opening of the Statutes alone albeit peradventure that be yet subjudice where the Statute of Ecclesiasticall causes is to be interpreted that they would recall such exorbitant interpretations as have of late gone abroad upon these Statutes and restore them to their ancient sense and understanding No man can so cunningly cloake an interpretation but another will be as cunning as hee to spie it out and then the discredit will be the Lawes Lib. 1. Politâ—â— A small errour saith Aristotle in the beginning is a great one in the end and hee that goeth out of the way a little the longer he goeth on the further he is off from the place his voyage was to and therefore the speedier returne into the way againe is best The old Proverbe 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 dangerously than under the authoritie of the Law and therefore one saith very well that There are two salts required in a Judge the one of knowledge whereby hee may have skill to Judge uprightly the other of conscience whereby hee may be willing to judge according to that as his skill leadeth him unto both which being in the grave Judges it is not to be doubted but they will be easily induced to review their owne and their predecessours interpretations and reduce such exorbitant expositions as have scaped out thereof unto the right and naturall sense thereof which if perhaps they shall be loath to do for because it makes for them or for some other like partiall respect then humble supplication is to be made unto his Majestie that hee himselfe will be pleased to give the right sense of those things which are in controversie betweene both the Jurisdictions for his Majestie by communicating his authoritie to his Judge to expound his Lawes doth not thereby abdicate the same from himselfe but that hee may assume it againe unto him when and as often as hee pleaseth Whose interpretation in that is to be preferred before theirs first for that his interpretation is impartiall as hee that will not weaken his left side to make strong his right for so are these jurisdictions as they are referred unto his politique bodie but will afford them equall grace L. 1. num 8. C. de legibus L. 1. num 7. C. codâ— omnes populi ff de justit jure and favour that hee may have like use of them both either in forraigne or domesticall businesse as occasion shall serve then that his Judges interpretation maketh right onely to them betweene whom the cause is but his highnesse exposition is a Law unto all from which it is not lawfull for any subject to recede neither is it reverseable by any but by himselfe upon a second cogitation or him that hath like authoritie as himselfe hath and therefore most fit to be interposed betweene Jurisdiction and Jurisdiction that the one partie be not Judge against the other in his owne cause which is both absurd and dangerous And let this suffice for the right interpretation of Lawes and Statutes Now it followeth that I speake something of the supplies that may be made to the defects that are in the same SECT 2. The second thing required to the first correcting of superstition and supplying of defective Statutes IT is not to be doubted but it was the full minde and intent of the Lawmakers which made those three Statutes to infeoffe the Ecclesiasticall Courts in the inheritance of all those causes that are comprised in those Statutes save those that are by speciall name exempted and that they did by the said Statute as it were deliver unto them full and quiet possession of the same for even so sundrie branches of the said Statute do shew as I have elsewhere made it manifest and that there hath growne question upon many points thereof and that the professours of the Ecclesiasticall Law have beene interupted in the quiet possession thereof commeth of the unperfect penning of the same and not of any just title or claime that may be made by the professours of the other Law thereunto but this is a thing not onely proper to these three Statutes but also common to all other Statutes which are writ of any Ecclesiasticall causes within this Land which notwithstanding may be remedied if it seeme good unto his sacred Majestie and the rest of the wisedome 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 defective and yet keeping 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 §
censured 204 Arbitrement what 79 Armes and the cases incident 99. how gotten 100. how to be borne 101 102 Armour by whom to be made 60 Artificers immunity from service 41 Auditors denied that immunity which professours enjoy 40 Aventines paines in compiling his Annals 169 Augustus why so called 108. his title to the Empire ib. Augustine the Monke 142 Avocation of causes inconvenient 131. 132 Aurum glebale what 45 Authenticks what 50. why so called ib. their contents seq B Baptisme how primitively administred 176 A Baptismall Church what 177 Barcinius the Collectour of the first Volume of the Decretals 75 Barren ground what 223. vid. Waste What ground to be accounted harren 224. Absolute and Comparative 223. how distinguished from Heath 225. Barren money what 224 Bastards by law those that are borne eleven moneths after the decease of the womans husband 55. severall sorts of Bastards 244. not to beare their Fathers Armes 245. nor to inherite ib. how they might be legitimated 146 Bastardie what 243. the effects thereof 245. to what jurisdiction the triall thereof belongeth 246 propounded either incidently 247. or principally 248. Generall bastardie defined ib. speciall defined 249. refuted 250. both of Ecclesiasticall cognisance 251. as is proved by severall precedents 251. 252 Battaill Abbey by whom founded and how endowed 190 Bawds how punishable 53 Benedict the first Founder of cloystered Monkes 187 Benefices how long they may be vacant 81. not to be impaired during the vacancie 82. some appropriated to Bishops and why 216 Bequests vid. Legacies Bertricks Will 194 Berytus the priviledges thereof 43 Bigamie 83 Bishops why so called 34. their power and jurisdiction 35. and degree 120. 121. place in Parliament 159. 160. their power in Ordination of Clerkes 57. in Consecration of Churches 191. 192. 193. seq Chappels 58. in Division of Church dues 154. in decision of controversies 54. in permission or prohibition of building Churches 191. and endowing them 194. and filling them 195. 196. seq their manners 51. 52. who to be elected 64. not hunters nor severe 85. to be resident 58. 65. not to be called before a temporall Iudge 65. nor deteine the Tythes of any Benefice by them founded 206. 207. nor passe them over to Lay men 208. in what cases they may hold them in fee. ib. their primitive endowments 209. 210. their different right in Tythes and demeanes 215. they somtime present at Patrons Wils 194 Bishop of Romes priority 66 Blasphemie capitall 59 Boniface the 8. Collectour of the second Volume of the Decretals 75 Border grounds 61 Boughes of great trees tytheable 229. 230. c. not accessories to the trees 233. Bounds of Parishes of Ecclesiasticall cognisance 151. vi Parish But of Bishopricks temporall 155 Brethren of the whole blood preferred before others 60 Briberie how punished 23 24 Burglarie how punished 21 Burners of houses how punished 19 C Cacus his fact 157. applyed 158 Canon Law what 73. divided 74. vid. Law Canons of Nice 153. of Antioch 154. of the Apostles questioned 194 Cardinals originall 152 Captives 27. feigned by the Law to be dead when they are taken 129 Cassiopea's new Starre 170 Castalia Castle-ward what 70 Castellians who 47 Censures to be judicially executed 85 Cessers for what instituted 44 Ceremonies used at the dedication of a Church 191 Chamberlaines place 46 Chancellours what 115 116. how they differ from Commissaries ib. their antiquity ib. Lord Chancellour why provided of Assessors 275 Changes of Church lands 57 Chappels how to be built 58 Charles Martel vid. Martel Children not to be punished so severely as men 85. after divorce how to be educated 62. their maintenance how it may be provided for 263 Chorepiscopi their office 153 154 Churches affinity with the Common-wealth 211. their priviledges 34 293. Prescription 62. building 65 66 not to be built without the consent of the Bishop 193. nor endowed 194. Manner of dedication 52. 191. their lands not to bee alienated 52. 54. 63. nor goods immoveable 56. nor vessels 64. yet may they be exchanged 57. at the Bishops disposall 193 194. Churches formerly both few and meane 197 Church dues how divided 153 154 Church peace-breakers how mulcted 178 Church-robbers curse 172. 173. the crime fatall to kingdomes 175 Church-shot 138 Circumstances considerable in punishing 99 Civilians disrespected 274 Civile Law vid. Law Pope Clement's sentence for the K. of Sicily 113. Clementines what 75 Clergies orders 54. most beneficiall to the Prince 186 Clerkes why so called 34. who to be admitted 65. where to pay for admittance 57. their behaviour and number 51 52 53. strictnesse of conversation 184. to be reverenced 117. not to hunt 85. nor to medle in civill affaires 82 their immunity 64. 66. how to be judged 60. by whom 65 Cloistered Monkes their originall 187. Priviledges 188 Clients compared to Sysiphus 132 Cnutes lawes 140 Code what why so called why compiled 31. how distinguished from the Digest 32. 33. contents s for whom most usefull 49 Cognisance Ecclesiasticall and Temporall 158. vid. Ecclesiasticall Collations the Sections of the Authenticks 50 Collectours of subsidies how to be punished for exacting 14. their office 38 Colours their dignitie in Armory 102 Combats permitted by the Common law 86 Commissaries what 116 Common-wealth allied to the Church 211. consistes of two parts 271. ruled by peace vid. warre ib. Competency to be allowed to the Minister 95. 196 Commutation of Church lands how formerly tolerated and how in the present age 210. 211 Confiscation in whole or in part 25. goods confiscate how to be disposed 37 Connexitie of causes not to be taken away 148. 157 Consecration of Churches with what ceremonies performed 191 Consent of parents requisite co the Marriage of Children 67 Consistories why granted 117 Constantines great bountie towards the Church 182. his law concerning Executors 267 Constantinoples priviledges 43 Consull what 45 Contracts Marine 88. 89 Contribution for ejectments 92 Controllers office 39 Controversies how decided 9 Corruptions in judgement how punished 20 Corses not to be prohibited buriall 6 Cozenage how punished 21 Councellours vid. Advocates Councels decrees as lawes 66. Councell of Nice 153. of Antioch 154. Lateran of Gangra and Antioch make Bishops disposers of Church goods 194. as also the Toletan Bracaran c. 195 Courts Spirituall abbridged of what they formerly have had 114. 115. 146. 147. why first granted 117. Court of Chancerie 275. of Requests 276 Crimes extraordinary 19. 20 Criminall matters triable in Ecclesiasticall Courts 48. 115 Crosse with what ceremonies set up in Churches 191. used for want of Churches 197 Curiositie of School-men prejudiciall to the Church 162. 202 Curse the More and the Lesse 172. The manner of Cursing 173. The forme of the generall Curse with Bell Booke and Candle 174 Customes of tything of Ecclesiasticall cognisance 147. 148 Cystercians exempted by the Pope â—00 but compelled by the Parliament to pay Tythes 143 D Damages why not cessed in cases of consultation 127. treble