published by him to be read in Schooles practized in Courts much about the yeare 1231. Or Gratian the Monk Pope Eugenius his confessor who after Iuo Bishop of Carnat had gathered the decrees the auncientest of our volumes in the Canon law might tell him truly he polished perfected the same and that it was allowed by Eugenius and published by him in the yeare 1149. or thereabouts but what of these relations 〈◊〉 so true he that will be truly informed of the Antiquity of the Canon law must not looke at the volumes thereof Decrees or Decretals but at the Decrees or Decretals themselues in the volumes for they were before their volumes were how could they else haue beene digested Had the Isidorus 〈◊〉 lib. 6. 〈◊〉 l. 〈◊〉 16 〈◊〉 Constā 〈◊〉 unt 〈◊〉 15. 〈◊〉 1. Author gone to Constantine the great the first Christian Emperor who first gaue leave to the christian Church to meet in councells to make Canons to governe in the Church Or to the Commons of the first 4 generall counsells he would never haue straighted the canon law from the yeare 1615. to 400 yeares Hetherto this 〈◊〉 4. That for the space of 300 yeares after Christ the distinction of Ecclesiesticall and Spirituall causes in point of Iurisdiction was not knowne nor heard of in the Christian world TO come to this distinction of Ecclesiasticall In the said printed 〈◊〉 in the case of praemunire sol 95. pag. 2. and spirituall causes from ciuill Temporall in point of Iurisdiction as when it should begin and his reasons why it was not knowne nor heard of in the Christian world before Let the Reader obserue how the Author writes first then sayeth he let vs see when this distinction of Ecclesiasticall or Spirituall causes from Ciuill and Temporall causes did first begin in point of Iurisdiction Assuredly for the space of 300 yeares after Christ this Distinction was not knowne nor heard of in the Christian world For the causes of Testaments of Matrimony of Bastardie of Adultery the rest which are called Ecclesiasticall or Spirituall causes were meerely ciuill subject only to the Iurisdiction of the ciuil Magistrate as all ciuilians will testify with me But after that the Emperor had received the Christian faith out of zeale desire they had to grace and honour the learned and godlie Bishops of that tyme they were pleased to single out certaine speciall causes wherin they graunted Iurisdiction vnto the Bishops namely in causes of tithes because they were payed to men of the Church In causes of Matrimony because mariagas were for the most part solemnized in the Church In causes Testamentarie because Testaments were many tymes made in extremis when Church-men were present giving spirituall comfort vnto the Testator and therfore they were thought to be the fittest persons to take the probats of such Testaments How be it the Bishops did not Imput proceede in these causes according to the decrees and Canons of the Church for the Canon law was not then hatched For this Distinction the Authors reason for Refut his assurance that it was not knowne nor heard of in the Christian world in point of Iurisdiction for the space of 300 yeares after Christ is he sayeth for the causes of Testaments Matrimony Bastardy Adultrie and the rest which the Emperor after he had received the Christiā faith had graunted to the Iurisdiction of the Bishops were meerely Ciuil determined by the rules of the Ciuil law subject only to the Iurisdiction of the Ciuil Magistrate As though whō the Emperor had translated these causes the rest frō the Iurisdiction of the Empire to the Iurisdictiō of the Church He translated not therwith the lawes that belonged to them their Cognition or Cognizance Or that the causes could become when they were translated to the Church Ecclesiasticall or spirituall causes in the Church and the lawes that belonged to their cognizance or cognition remayne ciull Temporall lawes in the Empire what had the Emperor done then when he had translated the causes not the lawes this given the causes to the Church without lawes And left the lawes vnto the Empire without causes the causes I meane whervnto these lawes belonged the lawes to the causes Now these Bishops sayeth this Author did not proceed in the causes aforesaid according to the Canons Decrees of the Church because he sayeth the Canon law was not then hatched A goose reason was not the Church then hatched and were there not 〈◊〉 then in the Church the 〈◊〉 〈◊〉 fesseth the translation of the causes to the Bishops why then Cicero tells him in his offices Libro 1. non remanet res apud cos a quibus transfertur And so it holdes translato aliquo transfertur et lex as in holy writ translato 〈◊〉 necesse est vt legis translatio fiat But how soeuer Cap. 〈◊〉 〈◊〉 de coust it Iudicious Reader this distinctiō of Ecclesiasticall Spirituall causes from Ciuil 〈◊〉 in point of Iurisdictiō that so much hath troubled the Author is as auneient in the courtes of the kingdome as this of the Lordes spirituall Temporall is in the house of Parliament which he might haue challenged aswell in the Persons and in their actions as in the causes which indeed he hath done for the distinctiō is the same in one in all Persons things actions touched in one touched in all Hero I leave him for that distinction from whence I am come to his next aspersion cast at the Bioshops and their Clergie 5. That the Clergie by their Iurisdiction 〈◊〉 bich they had from Caesar got wealth which begot Pride which begot their Ingratitude to Princes which blotted Caesart name out of the stile of their Courts and called them Courts Christian. THe distinctiō hath brought the Author to the Iurisdictiō of the Church As great an Ei sore to him nay a greater thē the distinction the church must haue no Iurisdiction whervpon thus he writes The Clergie saith Impur he having gotten by this Iurisdiction great 〈◊〉 said printed re 〈◊〉 eod ca su fel 96. p g. 1. wealth their wealth begot pride their pride begot Ingratitude towards Princes who first gaue them their Iurisdiction then according to the nature of all vngratefull persons they went about to extinguishe the memory of the benifit For wher their Iurisdictiō was first derived from caesar in the execution wherof they were caesars Iudges So as both their courts and causes ought still to haue borne Caesars Image superscription as belonging vnto caesar they blotted caesars name out of the stile of their courts called them Courts Christian As if the Courts holden by other Magistrates had beene in comparison but Courts of Ethnicks the causes which in their nature were mecrely Ciuil they called spirituall and 〈◊〉 So as if the Emperor should challenge his Courts causes againe say Reddi te Caesari
well governed common wealths a very few excepted whereof all-be it sundrie of them by the light of nature haue many rules of the Ciuil law yet if all the lawes of all other Countries were put together none excepted saving the lawes of the Hebrews which came immediatly from God for wisdome grauitie law or equity they come not neare to the law of the Romans whence it is that all other nations saving our owne although they receiue not the Ciuil law wholly for their law yet they honour and admire so much the equity thereof that they interpret their owne lawes thereby For the canon law it followeth What the Canon law is THat it is which is concluded in the Volumes thereof mentioned in the 10 page of the Epitome the Decrees Decretalls Sect clementines Extrauagants But let the Reader be advertised by the way that not all that is concluded in those Volums nor in the Tomes of the Ciuil law before but only the lawes constitutions extrauagants such as are An 〈◊〉 H 8 Cap 19 in an 〈◊〉 England intit An Act of the 〈◊〉 of the Clergie And 〈◊〉 8 H 8 cap 〈◊〉 Act 〈◊〉 Act against the 〈◊〉 〈◊〉 of the 〈◊〉 of R me an act for 〈◊〉 not crossing to the law of God nor adverse to the 4 first generall councells that at Nice That at Constantinople That at Ephesus that at Calcedon Nor contrary nor repugnant to the Royall Prerogatiue of the King Nor yet to the lawes Statuts Customes of his Kingdomes are the lawes we hold and follow for the Ciuil and Canon lawes in the Kings Dominions whereinto they were induced out of their volumes not the volumes themselues where though we reade them because they be not volumed by themselues but lye dispersed here and there amongst the rest therein wee hold not the rest amongst them as wee hold them for the Kings Ecclesiasticall lawes no more then we hold the Apocripha in the Bible though in the Bible for Canonicall scripture with this intimation I descend to the causes of the Cognizance or Cognition of these lawes in the Church or Common-wealth in the King Dominions what they are A Schedule of Such causes or actions of the Church by the Ciuil and Canon lawes as doe atise betweene party and party ordinarily As they call them causes of instance or At instance viz. Debates in 1 Church seruices with-holden from their Chappell 's 2 Ecclesiasticall promotions dignities or benifices 3 Spirituall pensions 4 Tithes 5 Sedile causes or seates in Churches 6 Dilapidations 7 Procurations 8 Testaments 9 Legacies 10 〈◊〉 11 Diuorces 12 Diffamations With their and every of their Incidents and Emergents A Schedule of such causes or actions of the Church as by the Ciuil and Canon lawes doe arise by Accusation Inquisition or Denuntiation Such are against 1 Offences against the act of 20 Elizabeth Cap. 20 for the vniformity of Common prayer c. 2 Pollutions of churches and church yards 3 Fighting or quarrelling in Churches or church-yardes 4 Herisies 5 Schismes 6 Apostasie 7 Idolatrie 8 Violation of the Sabbath 9 Violation of the Interdicts of the Church 10 Excesses in Prelats 11 Excesses in Clarks 12 Sacrilege 13 Sortilege witcheraft Inchantment 14 Laying violent hands vpon a Clerk 15 A Clerk a striker 16 Blasphemye 17 Periury ecclesiast 18 Simonye 19 Vsurie 20 Execrations 21 Imprecations Imprecātes debilitates Naufragia Morbos c. 22 Incest 23 Adultery 24 Fornication 25 Lenocinie 26 Obscenitie or Ribaldrie 27 Drunkennes Non frustra sunt instituta Regis Potestas Cognitoris ius vngulae carnificis arma militis disciplina dominantis seueritas etiam boni patris Habent omnia ista modos causas rationes vtilitates Haec cum rimentur malicoërcentur boni quieti inter malos viuunt Cap frustra 23. q. 5. SVndrie other matters and causes there are some ordinarie some extraordinarie some Ciuil some Criminall of the Conusance of the Ciuill law within the dominions of the King which not of the Cognizance of the Church whervnto this Appendix streights me I set them not in the Schedules thereof And yet for the honour of that learning more satisfaction of the Reader I will point thereat herein no more least it should exceede cōpasse I meane the compasse of an Appendix to so small an 〈◊〉 of which learning let the Reader vnderstand that first the Lord Admirall of the Sea Next the two Vniuersities Cambridge and Oxford haue a larger exercise therein then the Church or other places in the Common-wealth haue to season thereby the professors of that learning there with that practice thereof to make them the apter for such services therein as the Prince his Cōmon wealth at home with Princes and their Common wealthes abroad may require Now where the Nations round about vs farre neare are ruled by the Ciuil law wherein Princes treat with Princes of peace or warre or other Cōmon wealth-affayres by their Ambassadours if not Ciuilians attended by Ciuilians by whom they treat How meanely soever the Penmen of the Theses or positions in the Epitome before or their followers therein hold the Ciuilian his learning how Princes and their Common wealthes esteeme of them their imployments in their services in that learning shew But what doe I point at treaties betweene Princes no ordinarie obiect of the Ciuil law neyther deales it ordinarily but incidently therein by Commission from the Prince So it doth in Martiall affaires in an Armie So it doth in Ensignes and Armes And so 〈◊〉 doth in decisions of rights in Precedencie in Place Honour when such debates doe happen as many times they doe sometimes in the Church sometime in the Common wealth so in 〈◊〉 of like kinde which of the Science of the 〈◊〉 law though not of the practice of it ordinarily for the honour of that learning I could not passe by them and not point at them nor leave vntoucht their honouring that Science whose authorityes for Iudgment all the world honours Latret igitur Criticus quisquis volet modo nunquam latrare desinat Sayeth one of these authorityes of that law Ea est meaning the same nobilis 〈◊〉 iudi 〈◊〉 omnia fine 〈◊〉 〈◊〉 est 〈◊〉 〈◊〉 〈◊〉 〈◊〉 de vas Ipsa est quae 〈◊〉 〈◊〉 non est 〈◊〉 A third Ipsa est quae nobilitat addiscentes And sayeth a fourth And I Cap. 〈◊〉 do 〈◊〉 〈◊〉 Cap. 〈◊〉 〈◊〉 say no more Conduplicat 〈◊〉
EPITOME OF CERTAINE LATE ASPERSIONS CAST AT CIVILIANS THE CIVIL AND ECCLESIASTICAL LAWES THE COVRTS CHRISTIAN AND AT BISHOPS AND THEIR CHANCELLORS WHEREIN THE AVTHORS THEREOF ARE REFVTED AND REFELLED WITH An Appendix wherein the Ciuill and Canon Lawes with the causes of the Cognisance or Cognition of either of them in the Church or Common-wealth in the Kings Dominions what they are are opened BY WILLIAM CLERK Bach. of the Ciuill Law CIC. lib. 2. Tusc. Et refellere sine pertinatia refelli sine iracundia parati sumus The aspersions follow in the next fol. OPVSCVLI DICATIO STVDIOSIS IVRISPRVDENTIAE CANDIDATIS CVPIDAEQVE LEGVM IVVENTVTI HANC OPELLAM QVANTVLACVNQVE SIT GVILILLMVS CLERK DICAT CONSECRATQVE THE ASPERSIONS 1. THat the Ciuilians themselues confesse that the Ciuill law is a Sea full of waues 2. That euery Doctors opinion in that learning is a good authority 3. That the like may be said of the Canon law albeit the text thereof be scarce 400 yeares old 4. That for the space of 300 yeares after Christ the distinction of Ecclesiasticall and spirituall causes from Ciuill and Temporall in point of Iurisdiction was not knowen nor heard of in the Christian world 5. That the Clergy by their Iurisdiction which they had from Caesar got wealth which begot pride which begot their ingratitude to Princes which blotted Caesars name out of the stile of their Courts and called them Courts Christian. 6. That Bishops Chancellors are of late but vpstarts in the world 7. That the sloth of Bishops hath brought them in TO THE READER GEntle and Iudicious Reader if the wisdome of a King and his Parliament in England where the Ciuil and Canon lawes Bishops their Iurisdictions were in discussion thought it not fit the wisdome of the King alone nor with one nor two nor tenne with him of the wisests of the two houses vpper and nether of his Parliament nor vnder two sixteens with the King 32 in the totall the one of Tēporalitie the other of the Clergie should looke into these lawes to what intent I leave the Reader to 〈◊〉 29. H 8. 〈◊〉 19. the Act it selfe Intituled an Act of the Submissiō of the Clergy to the King c. Then weigh his wisdome his wisdome the two wisdomes of our two Authors who alone haue looked into these lawes discerned of them adiudged them their professors The Bishops their Courts their Chancellors with thē who doe execute the same The theses or positions named numbred in the page ensewing next the title page of this Epitome had they infected but some fewe affected to the studie of this learning discouraged them therein it had beene too much But they take impression in some of our Bishops in some of the Kings dominions I except England of whō some wil haue no vicars generalls but doe sit without them in their Consistories where by that occasion whilst they determine thinking they determine well the causes brought before thē they determine ill many times therein whose owners thereby somtimes the widow sometimes the Orphan somtimes both do suffer amongst others And no maruell why For though Persons things and Actions all that lawes doe handle or can handle in the generall are but 3 for whatsoever law we vse consists in one of these 3 Persons things or actions yet there is in each of these so many points of learning in the law that without the reading or practice thereof or both can no man Iudge aright Iudge he may and Iudge aright as he that shootes hits a marke he sees not so the blinde man hits the Crowe as the prouerbe is a fearefull adventure in Iudgment will a man adventure a riuer he knowes not and knowes there is a danger in it but knowes not where abouts without a guide A wise man will not some ventrous doe but die or live as they hit or misse the danger dayly experience teacheth this in waters more frequent in Iudgments wherein the wisdome of the law hath set a guide to guide him in Iudgment in matters of Iudgment of the Church in whō it invests the same in his person place or dignity and hath not the law nor the practice of it to Iudge accordingly by his profession as our Reuerend Fathers the Bishops meere divines haue not And therefore haue or ought to haue their Vicars generalls to guide them in Iudgmēt or guide the Iudgment without them otherwise if they iudge amisse or proceede amisse in Iudgment and so destroy it though otherwise iust as many times they doe as dayly experience shewes it in our Courtes of Appeales and Quarrells in Jreland they are inexcusable before GOD and man That Appeales are made and doe lie aswell frō the learned and experienced ludge be he never so circumspect in Iudgment it is evident likewise But not the difference Judicious Reader these appellations doe proceede from the perversnes of the Appellant not the vnskilfulnes of the ludge as the other doe Their causes are remissible to the Iudge againe frō whō they came are sent vnto him back againe regularly The other are not so but determinable determined by the Iudge of Appeale finally had the wisdomes of our authors of these positions attended the wisdome of the King his Parliament in the act aboue mentioned expressed the act stands still in force before they had divulged thē I will not say what they had done therein better or worse but better or worse they haue done and I haue said THAT THE CIVILIANS THE MSELVES confesse that the Civill Law is a Sea full of waues THE Author fell into In the 〈◊〉 to the 〈◊〉 〈◊〉 Repoit of 〈◊〉 causes matters in law 〈◊〉 and adjudged in 〈◊〉 Kings 〈◊〉 in 〈◊〉 fol. 4. pa 〈◊〉 printed in 〈◊〉 1615. this dispraise of this learning from the praise of his owne in these wordes viz. And therefore we may say for the honour of our Law notwithstanding that vulgar imputation of incertainety that the Iudgement and reasons of it is more certaine then of any other humane Law in the world aswell because the grounds of our Common Law haue from the beginning beene layed with such deepe wisdome policy and providence as that they doe provide for and meete with almost all cases that can fall out in our Common-wealth As also because these groundes are so plaine and so cleare as that the Professours of our Law haue not thought it needfull to make so many glosses interpretations thereupon as other Lawes are perplexed confounded withà ll which glosses as one doth well observe doe increase doubts ignorance in all Arts and Sciences And therefore the Ciuilians themselues confesse 〈◊〉 that their Law is a Seafull of waves the text whereof being digested into so many volumes The Professors saith our Authour of our 〈◊〉 learning the Common Law he meanes haue not thought it needfull to make so many glosses and interpretations thereupon as other
then the same ordinaries in the law then that now they are And from whence proceeded their vicars generalls and the same we call the Bishops Chancellors now whom the Author calls vpstarts in the world the lawes or constitutions in the same title of the Bishops audience in the Code doe teach the same fro point to point For not to speake out of them but to goe on with them as they lie concatenatae in the title sayeth another Ac cū sint ordinarij Iudices meaning the Bishops sayeth a third semiles 〈◊〉 praetorio A fourth ordinariè quoque procedunt These lincked texts in that title in the Code as they stand cited doe answere to the points in the question before proposed pūctually saving to the point of the Bishops vicars generalls wherevnto though they answere fully yet because not plainely to the Reader no Ciuilian let him be pleased but to cast his eye a few lynes backe againe to the words similes praefectis praetorio where the Emperor paralells the Bishops having made them ordinaries with Magistrates called praefecti praetorio of whō there were but three in the wide world one in Asia Praefectus praetorio orientis Another in Europe Praesectus praetorio Illirici The third in Africa Praefectus praetorio legionibus militiae Africanae These Ciuil Magistrates were respectiuely Iudges of the causes which the Emperor had translated frō the Empire to the Church whereof mentiō is made in this Epitome before of the which whē the Emperor 〈◊〉 had made the 〈◊〉 the same Iudges in the Church the Praefecti Praetorio were in the Empire before had made them similes praefectis praetorio who were Illustres Iudices so stiled in the law with this addition of their 〈◊〉 generalls How could the Bishops be without their vicars generalls similes praefectis praetorio that they had Iurisdictiō as the praefecti had that they were ordinaries as the praefecti were and Illustres Iudices made them not as the Empevor made them like vnto them without their vicars generals Now if the Reader will haue the reason why the Praefecti had their vicars all one binding in the Bishops it is this Quia illustres erant ante stabant caeteris dignitatibus Ideo habebant vicarios suos in Ciuilibus causis audiendis et terminandis So were the Bishops then so are they now Illustres Iudices antestabant ceteris dignitatibus in ecclesia Now if the Praefecti praetorio because they were Illustres Iudices autestabant ceteris dignitatibus in the Empire had their vicars as they had why the Bishops whō the law paralells with thē in the Church should not be as like vnto thē in their vicars generalls in the Church as in the rest of the pattes of their honour wherewith the Emperor had honoured them the law honours them at this day let the Author if he can shewe the difference Iustinians Code hath sundrie lawes some of his owne some of the Emperors before him even from the dayes of Constantine the great that shewe that Bishops in their Episcopall audience sate not without their Chācellors Their Chancellors oftē without the Bishops whose higher charge in CHRIST Church endured not the Bishops presence in court causes ordinarily And though likely not vnder the name title of Chancellors nor alwayes Vicars generalls officialls nor Comissaries they had other titles but the same offices as Ecclesiecdici or Episcoporum Ecdici as much to say as Church Lawyers or Bishops lawyers professed Ciuilians Canonists of that age the very selfe-same officers offices that the Bishops Vicars generalls then were now are who the Bishops then made doe now make but one the same Tribunāll or Consistorie no sooner vicurs generalls but or dinaries their Cōmissions they hold from the Bishops But their Iurisdiction from the law These be the 〈◊〉 officers in the world our vpstart Author would make I am come to his next aspersion the last I finde of this kinde as the roote of these officers the Bishops vicars generalls whom we call their Chancellors from whence he writes they did proceed from the sloath of Bishops 7. That the sloath of Bishops hath brought in Chancellors AProper Parent Sloath to breed vpon imput could his learning which commends related by D. Ridley in his view of the 〈◊〉 〈◊〉 law pag. 104. him finde no other or if none but that no other stocke to beare it then the Bishops The Bishops and their Chancellors both are much beholding to him But let the ludicious indifferent Reader but cōsider how the brother of this aspersion can fasten it vpon the Bishops or their Chancellors How could the Resut Bishops sloath bring in their Chancellors certaynelie the Bishops Nascentis ecclesiae the auncient Fathers of the Church were vnder persecution no sooner set in their Seas but beset with Ethnicks alas they had no rest to beget sloath to beget their Chancellors And for the Bishops Citerioris saeculi the later Fathers they brought them not in they found them in their Consistories when they came themselves In a word Iudicious Reader Th' imperiall power th'immediat power vnder GOD Christ. as it is set downe in what hath beene sayed to the aspersion next before brought them in and not the sloath of Bishops as the Author dreames Now the cause why the Th' imperiall power furnished the Bishops with these officers was indeed the multitude 〈◊〉 of Ecclesiasticall causes then more now by as many more the decisions whereof in their Cōsistories left to the Bishops the Emperor doubted might haue drawen them from prayer divine exercises A second reasō was that the causes of the Cognizāce of their Courts were more likely as they are to haue thereby a more speedy ready and Iudicious triall before Iudges of the same learning which require a whole man then before Iudges of another though a higher requiring as the Bishops pastorall office doth a whole man too If the Author will haue a third reason it was that Clerks suites and quarells should not be divulged spread abroad amongst the secular sort which trenched many times vpon the whole profession especially in Capitall matters wherein Princes anciently so much tendered the clergie that if a Clerke had̄ cōmitted an offence worthy of death or open shame whereby he became perpetually in famous he was not first executed or put to open shame before he was degraded by the Bishop his Clergie so was executed put to sname not as a Clerke but as a laye Malefactor for the honour dignity of Priesthood It were to be wished this order were retayned still that Clerks should not passe immediatly whē they fall into such Excesses frō the Alter to the halter but hang or suffer other shame without their Priest hood which order if it were retayned still or might be restored would much honour the Church and no whit derogat from the Iurisdiction of
the Crowne For the second of the foresaid reasons as where the Bishops in their Cōsistories haue not had their vicars generalls whō we call their Chancellors as in many partes in this kingdome wherin we live they have not how many just causes vpon grievances in proceeding before the Bishops givē haue beene appealed quareled the plaintifes in the first instances before the Bishops the Iudge à quo in the cause of appeale or quarell overthro wen before the Iudge of the Appeales or quarell the Iudge ad quem to the insupportable travell and expence of the subiect their transmissions in the causes in the Registries of the Courts of Appeales quarrells doe shewe which doe cut so sore vpon the poore many tymes that spent by that occasion in the second instance he is not able to prosecute in the principall the first and so looseth all operam oleum To meet with this mischeife or Inconuenience rather the law hath provided in great wisdome that if a Bishop will hold himselfe so compleat a Iudge within himselfe as that he needes no Chancellor but will proceed without him ordinarily his Metropolitā the Arch-Bishop of whose province he is may compell him therevnto or if he will not be compelled may put vpō him a Chancellor as the King the supreame ordinary may vpon the Metropolitan in the case and supplie his neglect in the Suffragan Bishop If the Metropolitan supplies it not For as each superior ordinary over the immediat vnder him hath his supplitorie power by the law so hath the King the supreame ordinarie over them all subordinates vnderhim his supplitorie power by the same rule so necessarily holdes the law those officers whom it may not be omitted Published by 〈◊〉 〈◊〉 of the Lords 〈◊〉 and counsell 622 〈◊〉 In his his late Maiestie in his late instructions for the ordering setling the Courts and course of Iustice within this kingdome hath confirmed viz. in his 45 instruction or direction thus That the Bishop of every 〈◊〉 〈◊〉 order to appoint honest sufficient 〈◊〉 Chancellors Commislaries to 〈◊〉 〈◊〉 risdictiō vnder them Iudicious Reader I 〈◊〉 said though not so much by much as might be said to this the rest of the 〈◊〉 〈◊〉 I haue passed over yet more then I 〈◊〉 to deale with their Authors out of their Elemēts in this kind Apelles sent the 〈◊〉 〈◊〉 to his last when he gaue his Iudgemēt though but of the foote of the picture he had 〈◊〉 though a part of the body whose picture 〈◊〉 was that belonged to his trade Our Authors haue gone as high aboue the foote as the height of the head the Bishops of the Church The lawes of the Church The Courts of the Church the Iudges of the Church vnder the Fathers their Chancellors whē we call their vicars generalls with whom they haue dealt as Painters vse to doe with the Image of GOD whom no man ever saw nor that Matie seene with mortall eyes yet they can imagine an Image of him as our Authors haue done of the Bishops Courts lawes and the rest whom which though they haue seen yet not in Iudgment not prosessing their learning of whom which they haue more then boldly written though of learning Iudgment yet without learning or Iudgment Let not any Reader therefore of their Theses or positions in the premisses if he stood or stands or shal be affected to the studie of that learning in those lawes be discouraged thereby what the Ciuil Canon lawes are and what the causes are of the Cognizance or Cognition of either of them in the kings dominions in the Church or Common wealth the Reader might expect in the body of this Epitome but omitted there th'appendix therevnto ensewing opens them wherevnto the Reader is referred AN APPENDIX Wherein the Ciuill and Canon lam with the causes of the Cognisance or Cognition of eyther of them in the Church or Common wealth in the Kings Dominions what they are are opened What the Ciuil law is THe law of the Ancient Romans it is the same we call the Roman Ciuil law that was reduced by Iustinian frō 2000. bookes or very neare 2000 bookes to the 4 Tomes or Volumes mencioned before in this c de vet 〈◊〉 〈◊〉 l. 1. § 〈◊〉 〈◊〉 Epitome pag. 4. whereof the Digest or Pandext is the first so called Quia digeritomnes disputationes legum in se quasi in suoe aluo continet The second the Coà e of caudex as much to say as plurium tabularum contextus vnde tabulae codices dicuntur cōpiled as a learned Doctour D. Ridley in his view of the Ciuil 〈◊〉 law pag 〈◊〉 of ours related of 56 answears of so many Emperors with their counsell famous learned men to as many cōsulations wherof that Tome compiled is called the Code The Authenticks the third Tome or Volume Of his 〈◊〉 at large in D. Rid. view c pag 〈◊〉 of the Ciuil law are a Tome or Volume of new 〈◊〉 of Emperors after the Code brought into the body of the law called the Authēticks as authēticall of themselves proceeding as they did from the Emperors owne mouthes The Volume is devided into 9 collations or coustitutions or Sections and they into 168. Nouells and the Nouells into Chapters they were called Nouells because they were new lawes whereof some were generall concerning all all alike Persons and Places some speciall or private vnto some speciall or private persons and places The three Volumes aboue mentioned were the Tomes or Volumes of Iustinian the Emperor gathered by him some frō some Emperors his predecessors decrees and constitutions some from his owne as time occasion had bred them the latest no later then 500 yeares after CHRIST The fourth and last Tome of the Ciuil law feuds explaned by D Rid in his view c to be Customes services that the subiect or vassall oweth to his Princeor Lord for such kinds or fees as he hould 〈◊〉 of them pag. 61. are the Feuds of Feudum of Faedus or fides or as some say of Fidius whom they faine the God qui fidei praeest by whom they vsed to sweare per deum Fidiū credis iurato mihi Plaut And not vnlike For howsoever Iustinian the Emperor takes notice of them in his Nouells he tooke it frō the ancient Romans before Christ at the least from Alexander Seuerus an Ethnick Emperor 224 yeares after Christ very neare 400 yeares before Iustinians time who made Foudataries of whō likely he tooke the oath of faith and Homage and they yeelded it per deum Fidium c iurabis c. But frō whence or whomsoever they proceeded they became and are a particular Tome or Volume of the Ciuil law which is as that learned Doctour in his view c saith pag. 3. for the great wisdome 〈◊〉 Reg. iur Reg suae a 〈◊〉 muni 28. and equity of it at this day as it were the Common law of all
quae sunt Cesaris they would all crie-out on the contrary part say Date deo quae sunt dei Our Courts beare the name title of Christ the superscription of Caesar is quite worne out and not to be found vpon them A strange phantasie fiction imagination that 5 esut. the stiling of the one Court the Court Christian should hammer into any head such a toye to make the other as it were as the Author sayeth in comparison Courts of Ethnicks so the Author would insinuat not to speake of other kingdomes or common wealthes then wherevnto wee doe belong come not they both from one fountaine from one head arethey not set both doe they not sit both Sister like in one crowne thanked be God they doe so hand in hand Christian Courts both though not stiled both Courts Christiā Sainct Hieromes distinctiō vpon the point that setled 〈◊〉 q. 1. 〈◊〉 7. his Leuite might haue setled the Author aswel if he had hit vpon it as he could not easily misse it turning our bookes as it seemes he did for the hatching of the Canon law But as he writes who hath written truly of some sorte of men Cancros priùs recte ingredi facias quam his qui non tam Iudicio quam proposito et voluntate aberrant quibusuis rationibus satisfacere possis quibus Ne si persuadeas quidem vnquam persuaser is Touching that distinction thus that Father writes vnto that Leuite whom he calles Leuitā suū duo sunt genera christianorum est autē vnum genus quod mancipatū est diuino officio c. vt sunt Clerici et deo deuosi aliud vero genus est Christianorum ut sunt Laici his temporalia c. The Sages of the Authors learning in the law of the land that haue beene to this tyme did never stumble at that stile before but passed sagelie by it the beginning whereof in the Courts of the church was when she was not loaden with wealth Nec tunc diuitiae ecclesiam onerabant Alas she was not loadē with persecutions they were not Caesars courts then as the Author makes them Caesar had not then receiued the faith But the Church held them even in the thickest of Ethnicks who called them the Christian Courts whence they came C desum 〈◊〉 et sid 〈◊〉 eod de Epis 〈◊〉 Cler. c. eod de Episcop aud c. eod de Haenerman et sam eod de Apostat eod de Iud. et 〈◊〉 eod de 〈◊〉 c. stiled the Courts christian vnder which stile they came vnto caesar whē caesar came to the christian faith And from Caesar to the church with sundry sacred constitutions as of the holy 〈◊〉 catholique faith of churchs of Bishops of the Bishops audience or Iurisdiction with sundrie more in mayntenance of the saith as against Hereticks Maniches Samaritās Apostats Iewes Caelicols Pagans thelike all in assistance of the Christiā faith whervnto he added afterwardes as the Author sayes other Cognizances or Cognitions of causes as of mariages Testaments and the like 〈◊〉 de 〈◊〉 coal de 〈◊〉 Now weigh Iudicious Reader wo things one what the wealth could be that our Author dreames of the Clergy could haue gotten then when he writes they got it by their Iurisdiction which they had from Caesar to beget their pride to beget their ingratitude to Princes to blot out Caesars name out of the stile of their Courts Another how they could haue blotted Caesars name out of the stile of their Courts by stiling them if they had so stiled them Courts christian when Caesar had imbraced Christ was he lesse Caesar then he was before with this Quere I leave this a spersiō with this intimatiō that our Author who cnvies it seemes herein that the Courts of the Church should be stiled Courts Christian arrogates to Caesar more then Caesar to himselfe more then Caesar would he should doe derogates from Christ frō whom the stile 〈◊〉 indeed rightly how soeuer so stiled vnder God whom Caesar the Bishops vnder him hold thē whose Tribunals they are not Caesars nor the Bishops more then in their execution 6. That Bishops Chancellors are of late but vpstarts in the world WHether the Author of the former aspersions cast at Ciuilians the Ciuil Canon lawes and at the Clergie be the Author of this aspersiou and the next last I finde of this kinde throwen at Bishops Chancellors or some other vpstart Author that hath gleaned after him or that went before him in the same field I cānnot tell D. Ridley ir his view of the 〈◊〉 Sc ecl 〈◊〉 law 〈◊〉 104. I find thē by relatiō to be printed as the rest but not printed with the rest but howsoeuer let thē goe together and their Author be whō he wil be thus he writes Bishops Chancellors 〈◊〉 are but vpstarts in the world Bishops 〈◊〉 Iudicious Reader whom we call their vicars generall other Chancellors know we none to Bishops saving this vpstart opinion are vpstarts of no lesse then 1200. yeares standing Resut in the world so long haue Bishops had their Episcopall audience which made them ordinaries and so long haue 〈◊〉 had their vicars generalls whom we call their Chancellors For which audience their becōming ordinaries herevpon the Emperors reasons therefore Let the reader vnderstand that when the Bishops constācie in Religiō sealed with so many of their blouds and their Clergies had brought the Emperors therevnto wherein Cōstantine began the succeding Emperors thought not enough their superiority in the church with out power Iurisdiction to strengthen them therein For said the Emperor in his Christian zeale therevnto Et si praecipuū pontificis seu Episcopi munus est doctrina verbi populum moderari tamen quia nonomnes dicto audiētes sunt nec ejusmodiper suasiomad disciplinā perduci vel in officio retinere possunt et superioritas in qua sunt ecclesiastici absquē Imperio et Iurisdictione non satis habet neruorum et authoritatis deniquè quoniā ecclesia mater et cultrix est Iustitia Ideo Episcopis peculiaris quaedam Iurisdictio ecclesiastica Ciuili dignior in personas et causas ecclesiasticas legibus Impp est attributa c. vt ius dicant Clericis c. And least the Emperor in his constitution in these wordes vt ius dicant Clericis c. should seeme to the Reader to straight the Bishops in their audience or consistories to Clerks onely there followes a praeterea in the same title in the Code de Episcop audient not long after this praeterea sayeth the Emperor there ius dicunt Laicis c But to the point became the Bishops ordinaries then by this Iurisdiction and the same ordinaries in the law that now they are if they did did this beget their vicars generalls then whō now we call the Bishops Chancellors necessarily They did so become by this ordinaries