he that is charged with the Bastardie were borne in lawfull Matrimonie or out of Matrimonie or whether he were borne before Lib. Intrâ—c fol. 35. his Father and Mother were lawfully contracted together in Matrimony or after All which the Ordinarie makes inquirie upon by his owne Ordinarie and pastorall authoritie for that matters of Bastardy doe originally belong to the Ecclesiasticall Court and not to the Temporall And as hee findes the trueth of the matter by due examination to bee this or that so hee pronounceth for the same in his owne Consistorie and makes certificate thereupon to the Kings Court accordingly and as hee pronounceth so the Temporall Judges follow his sentence in their Judgements either for or against the Inheritance that is in question Speciall Bastardy they say is that where the Matrimony Bracton is confessed but the priority or posterioritie of the Nativity of him whose birth is in question is controversed which to my thinking if I conceive aright is no other thing than the generall bastardie transported in words but agreeing in substance matter with the other for even these things which they pretend make speciall Bastardie are parts and members of the generall Bastardie and are either confessed or inquired upon by vertue of the Kings writ in the same For first for the Matrimonie that is here mentioned it is there agnised both by the Plaintife in pleading of it and the Defendant in the answering thereto and therefore the Plaintifes plea is thus Thou art a Bastard for that thou wast borne before thy parents were lawfully contracted together in Marriage or before their Marriage was solemnized in the face of the Church To which the Defendants reply is I am no Bastard for that I was borne in lawfull Matrimony or that I was borne after that my Father and Mother were lawfully married together In both which you see there is a Marriage confessed and the question onely is of the priority or posteriority of the nativity of him that is charged withall whether it happened before or after his parents marriage which as they hold is the other member of speciall Bastardie and yet this prioritie or posterioritie of nativity by vertue of the Kings writ comes no lesse in inquirie to the Ordinarie in the case of the generall Bastardie than they make it to be traversable in the speciall Bastardie and therefore the writ to the Ordinary for generall Bastardie is conceived in this manner viz. Inqutratis utrum praedictus A. pars rea genitus vel natus Lib. Intrac fol. 35. fuit anto Matrimonium contractum inter talem Patrem suum talem Matrom suam vel post So that either they Glanvill lib. 7. cap. 15. must confesse there is no such bastardie as they make shew there is diverse from that that is tried before the Ecclesiasticall Judge or that themselves doe confound the members that should divide the same and make them one or the other as them list for both simply they cannot be unlesse they be distinguished with other notes and differences than hitherto I finde they are But to say the truth if these things be well weighed and considered speciall Bastardie is nothing else but the definition of the generall and the generall againe is nothing but the definite of the speciall for whosoever is born out of or before lawfull Matrimonie hee is a Bastard and he againe is a Bastard that is borne before or out of lawfull Matrimony so that these things to bee a Bastard and to bee borne out of lawfull Matrimony are convertible one with the other so then as it were very hard to make a divorce betweene these things that are so â—eere in nature one to the other being convertiblâ— termes one to the other so hard againe it were in policie to disjoyne these things in triall that are so neere in affinitie one to the other because they are the same in substance and nature as the other are and therefore Eodem jure conseri debent And also ne continentiae causarum dividantur 〈…〉 q. c. 2. cognorimus which is no lesse absurditie in Law than it is a grossenesse in other learning to deny a principle or generall Maxime of the profession And so farre hitherto as concerning the reasons and arguments that may be brought against this speciall Bastardie Now it resteth that I shew by ancient precedents that both these sorts of Bastardy have appertained to the Ecclesiasticall Courts onely and the first precedent is in the incident the other in the principall and the precedent is no lesse ancient than Henry the seconds time as that which happened under Alexander the third about the yeare of our Lord 1160. and the case is this A certaine man of Norwich Diocesse called R. H. had issue I. H. who had a Son called C. H. I. H. deceasing before R. H. Cap. Lâ—…or ext qui filii sunt legitimi his Father C. H. succeeded in his Grandfathers Inheritance his said Grandfather being dead but M. H. Brother to the said Grandfather pretending that the said I. H. was a Bastard draweth the said C. H. into the Temporall Court upon the Inheritance whereupon C. H. called the said M. H. into the Bishop of Norwich his Court for the triall of his nativity but the Bishop long protracting the cause C. H. appealed to the Pope who delegated the same cause to the Bishop of Excester and the Abbot of Hereford with order That if the said M. H. should not within two Moneths prove that which hee objected against C. H. that then they should intimate the same to the secular Judge before whom the inheritance was in question that he should not stay any longer upon the question of legitimation but proceed to Judgement in the cause of the inheritance Which president though it be long before the Statute of Bastardie made by Henry the 6. and so no writ went from the Temporall Court for the certificate thereof yet it shewes that the Temporall Judges in those dayes did not proceed to Judgement in the principall cause before the incident were decided by the Ordinarie and that they counted bastardy then to be of the Ecclesiasticall cognisance and that it was lawfull for him that was pretended to be a Bastard to appeale from his Ordinarie if either the Ordinarie detracted the determination thereof or were suspected of partiality And thus farre of the incident There is an other much like precedent to this in the same Kings dayes but that is in the principall for that the inheritance came not first in question but the legitimation it selfe and the case is as followeth A certain man called Ralph kept one Analine the wife of one Allin by whom he was supposed to have begot one Cap. Causam ext qui fil 〈…〉 sunt legitimi Agatha who also being married had a Sonne called Richard Ralphe going beyond the Sea left Richard and his Mother Agatha in possession of all his
wherefore neere the beginning of the same Statute the Statute ordering that all persons of this Realme and other of the Kings Dominions shall truly and effectually set out and pay all and singular Tythes according to the lawfull customes and usages of the Parishes where they grow and become due because there is a question made where these customes and usages shall be tryed in the Ecclesiasticall or Temporall Law if these or the like words had beene added to the same to be proved before an Ecclesiasticall Judge after the forme of the Ecclesiasticall Law and not elsewhere the whole matter had beene cleare for that point And whereas againe in the end of the same Statute there be some good words tending to the appropriating of these matters of Tythes and obligations and other Ecclesiasticall duties to the Ecclesiasticall Court and that the remedie for them shall be had in the Spirituall Court according to the ordinance of the first part of that Act and not otherwise yet because there is no penaltie to that act busie men easilie make a breach thereinto for that Lawes without penalties for the most part are weake of no force if therefore this or the like supply were made if any man sue for these or like duties in any other Court than in the Kings Ecclesiasticall court the parties so suing to forfeit the treble value of that which he sued for to be recovered in the Kings Ecclesiasticall Court where it ought to have bin commenced by the way of Libells or Articles the one halfe thereof shall be to the King the other to the partie grieved many of these suits would easily be met withall Neither is it to the purpose that this is matter of mony and Lay-Fee that should be in this sort forfeited and therefore is not Regularly to be sued for in the Ecclesiasticall Court for seeing the cause is Ecclesiasticall upon which the matter of forfeiture ariseth it may be very well allowed Ne continentiae causarum dividantur and for that ordinarily every jurisdiction that is wronged may defend it selfe with a penaltie beside we do by the like right in the Ecclesiasticall courts recover expenses of suits in Law fees of Advocates Proctors mony for redemption of sin so that it will be no strange matter to have this kinde of suit allowed unto the Ecclesiasticall Court Further whereas there are in the Statute of Edward the sixt chapter 13. in the beginning almost of the said Statute two clauses under paine of forfeiture one of treble value for Tythes carried away before they were divided set out or agreed for The other of double value where the Tythes were hurt or impared by the partie stopping or letting him that had interest thereunto to carrie them away or by withdrawing or carrying them away himselfe the same is ordered by a clause in the second branch thereof reaching unto them both for that a clause put in the end of two sentences stretcheth it selfe indifferently unto them both if there be no more reason it should belong to the one than the other as there is not in this case for if it were not so the first penalty had no order set down how it might be recovered that the same shall be recovered according to the Kings Ecclesiasticall Law to which if there were added this word only and not elsewhere or otherwise and they martialled in their right places there were nothing more sure or strong Moreover whereas in the first proviso of that Statute it is decreed that none shall be compelled to pay any manner of Tythes for any Hereditaments which by the Lawes or Statutes of the Realme or by any Priviledge Prescription or Composition Reall are not chargeable therewithall whereby it is doubtfull in what Court the said Exemptions are to be alledged if there were inserted these words or other of like nature the said Lawes Statutes Priviledges Prescriptions or Compositions reall to be alledged argued traversed and determined before the Ecclesiasticall Judge onely according to the forme of the Ecclesiasticall Lawes and not else-where upon like forfeiture of treble dammages as is aforesaid it would make this poynt sure unto the Ecclesiasticall Law Over and besides this whereas in the same Statute there is a discharge allowed to barren heath and waste ground in some for not payment of tythes in other for the manner of payment of them for the space of 7. yeares after the improving and converting of them into arrable ground or meadow it would make the matter plaine which Law should have the pronouncing thereupon if there were added these or the like words So the same ground be proved in forme of Law in the Ecclesiasticall Court to be barren heath and waste Lastly whereas in the said Statute among other limitations of causes wherein the Ecclesiasticall Judge is not to deale by vertue of the said Statute there is one in these words neere the end of the said Statute Ne in any matter whereof the Kings Court of right ought to have Jurisdiction which limitation is so vage large that thereout there may be forged as many divers kindes of Prohibitions as the Poets sained Vulcan ever made thunderbolts for Jupiter And therefore it were very well and consonant to the good meaning of the said Statute that this vagenesse were restrained and reduced to a more certainty of matter by these or like words By any ancient Law or Statute of this Land And so farre as concerning the imperfection of the said three Statutes and how they may be amended and made reducible to the first meaning and intent of the makers thereof by some small supply alteration or change of words the sense and ground-worke standing ever the same according to the wisdome of his Majestic and his great Councell assembled in Parliament CHAP. II. SECT 1. The second Meane to releeve the Civile Law which is by allowing it the practice of such things as are greevances in the Common-wealth and fit to be reformed by some Court but yet are not otherwise provided for And first of the greevances which concerne Parents and Children and how they may be releeved NOw it followeth that I shew wherein the practice of the Ecclesiasticall Law under which I comprise the Civile Law so farre as it is in use amongstus may bee increased to the benefite of the subject and the enlargement of the profession without the prejudice of the Common Law And that I may first begin with the piety of Fathers towards their Children children againe towards their Parents which is the beginning of all Common-wealths for even Nature it selfe hath taught that not onely in the most brutish people that bee but also setled it in the savagest kinde of beasts that are upon the earth the one to cherish that which it selfe hath brought out and the other to love againe that which hath brought it out and yet what Law is here in England which provideth for the one or the other unlesse
that all the Lawes thereof appertaine unto Your Majesties care comfort alike For which not onely the whole profession of Your Ecclesiasticall and Civile Lawyers that now are but those which shall succeed in those places for ever hereafter unto the worlds end will praise and magnifie Your Majesties gratious favour towards them and wee that now are will pray to God for the long and happie prosperitie of Your Highnesse and Your Posteritie over us during the continuance of this Heaven and this Earth and after the passing away thereof a perpetuall fruition of the new Heaven and the new Earth wherein righteousnesse onely shall dwell for ever Your Majesties most humble and dutifull Subject THOMAS RIDLEY To the Reader GEntle Reader I confesse as I meditated this Treatise upon mine owne motion as I doe somtimes matters of other argument when my leasure serves mee thereto so also I doe not set it out to the view of the world upon mine owne motion but was desirous it should have beene kept in saving that I must obey where I am bound The thing that gave mee cause to this meditation was that I saw many times how meanly men esteemed of the Civile and Ecclesiasticall Law of this Land valuing them by the practice of so much of them as we have among us And therefore I thought good although not wholly to unfold the riches of them yet to make shew of them folded up in such sort as Mercers make shew of their silkes and velvets laid up in whole peeces in their shops whereby it may bee seene what great variety they have of all these kinde of wares although the goodnesse of the ware it selfe cannot be discerned because it is foulded up Besides seeing how frequent prohibitions are in these dayes in causes of either cognisance more than have beene in former time I thought it not unworthy my labour to inquire and see upon what just grounds they are raised up in this multitude not of any humour I have to gainesay the lawfull proceedings of any Court which I reverence and most readily acknowledge their authoritie in all things belonging to their place but to know and search out the truth of those suggestions that give cause unto these prohibitions For whenas such Lawes as are written of these businesses are written indifferently as well for the one Iurisdiction as the other no man is to be offended if the one Iurisdiction finding it selfe pres sed by the partiall interpretation as it supposeth of the other inquire the ground of such interpretation and labour to redresse it if it may be by the right interpretation thereof To the end that either Iurisdiction may retaine their owne right and not the one bee overtopt by the other as it seemeth to be at this day And that in such matters as they concerne of their owne right as depend of no other authoritie but of the Prince alone which is the thing onely that is sought in this little Treatise And therefore the Reverend Iudges of this Land are to be intreated that they will vouchsafe an equall interpretation of these matters as well to the one Iurisdiction as the other for so it is comely for them to doe and if they doe it not the other are not so dull-senced but they can perceive it nor so daunted but that they can flie for succour unto him to whose high place and wisdome the deciding of these differences doth of right appertaine PENELOPE is said to have had many wooers comely in person and eloquent in speech but shee respected none but her owne ULYSSES Such should be the minde of a Iudge that whatsoever other appearance or shew of truth be offered one saying This is the true sence of the Law and an other that yet the Iudge should respect none but the very true germane and genuine sence thereof indeed Which if it were religiously or indifferently observed in every Court then needed not this complaint that now is but every Iurisdiction should peaceably hold his owne right such as the Prince Law or Custome hath afforded unto it THOMAS RIDLEY A VIEW OF THE Civile and Ecclesiasticall Law also wherein it is straightned and wherein it may be releeved PART I. CHAP. I. SECT 1. The Division of the whole booke into foure parts What right or Law is in generall What is the Law publick and what the Law private What is the Law of Nature What is the Law of Nations What is the Law Civile BEfore I shew how necessary it is for his Majestie and the Realme to maintaine the Civile Ecclesiasticall Lawes as they are now practised among us in this Realm I will set downe as it were in a briefe what the Civile and the Ecclesiasticall Lawes are then will I shew how farre forth they are here in use and practise among us thirdly wherein wee are abridged and put beside the use and possession thereof by the Common Law even contrary to the old practise thereof and the true sence and meaning of the Lawes of this Realme and the Statutes in this behalfe provided and lastly wherein we might be releeved and admitted to the practise of many things in the Civile Law without prejudice to the Common Law and so both the Lawes might know their owne grounds and proper subjects and not one to be jumbled with the other as it is at this day to the great vexation of the Subject But before I speake of the Civile Law in particular I will define what Right or What Law is Law is in generall Law therefore is as Vlpian saith L. 10. in fin ff de Justicia Jure the knowledge of Civile and humane things the understanding of those things which are just and unjust This Law is primarily divided into the Law publick and the Law private The 1. Jus publicum publick is that which appertaineth to the generall state of the common-wealth for I meane the Law publick not in respect of the Forme that they were publickly made as we make lawes in our Parliaments for so all the Civile Law is publick as made by publick authority but in respect of the object or end thereof for that they concerne the Church the Clergie the Magistrate and other like publick functions none of which levell at the rule of equity or equality between man and man as private lawes doe but ayme at that which is most fit ingenerall for the common State 2. Jus privatum The private Law or the private mens Law is that which concernes every singular mans state which for that it is occupied in giving every man his owne it must of necessitie be proportionable to the rule of Equitie and Justice Private Law is of three sorts the law of Nature the law of Nations and the law Civile The law of Nature is that which Nature hath taught every living creature as the care and defence of every The Law of Nature creatures life desire of libertie the conjunction of male
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
somtimes at Rome in Italy somtimes at Avignion in France sometimes in other places as by the date of the Bulls and other processe of that age may be seene which severall removes of his gave occasion to the Parliament of inserting the word Elsewhere in the body of those Statutes that thereby the Statutes providing against Processe dated at Rome they might not bee eluded by like Processe dated at Avignion or any other place of the Popes aboade and so the penaltie thereof towardes the offender might become voyde and bee frustrated Neither did the Lawes of this Land at any time whiles the Popes authoritie was in his greatest pride within this Realm ever impute a Praemunire to any Spirituall Subject dealing in any Temporall matter by any ordinary power within the Land but restrained them by Prohibition onely as it is plaine by the Kings Prohibition wherein are the greatest matters that ever the Clergie attempted by ordinary and domesticall authority and yet are refuted onely by Prohibition But when as certaine busie-headed fellowes were not content to presse upon the Kings Regall jurisdiction at home but would seeke for meanes for preferment for forrain authority to controule the Judgments given in the Kings Courts by processe from the Pope then were Praemunires decreed both to punish those audacious enterprises of those factious Subjects and also to check the Popes insolencie that hee should not venter hereafter to enterprise such designments against the King and his people But now since the feare thereof is past by reason all entercourse is taken away betweene the Kings good Subjects and the Court of Rome it is not to bee thought the meaning of good and mercifull Princes of this Land is that the cause of these Statutes being taken away the effect thereof should remain and that good and dutifull Subjects stepping happily awry in the exercise of some part of their jurisdiction but yet without prejudice of the Prince or his Regall power shall bee punished with like rigour of Law as those which were molesters greevers and disquieters of the whole estate But yet notwithstanding the edge of those Praemunires which were then framed remaine sharpe and unblunted still against Priests Jesuites and other like Runnagates which being not content with their owne naturall Princes government seeke to bring in againe that and like forraine authoritie which those Statutes made provision against but these things I leave to the reverend Judges of the Land others that are skilfull in that profession onely wishing that some which have most insight into these matters would adde some light unto them that men might not stumble at them and fall into the danger of them unawares but now to Prohibitions SECT 2. The impeachment thereof by Prohibition and what it is A Prohibition is a commandement sent out of some of the Kings higher Courts of Records where Prohibitions have beene used to be granted in the Kings name sealed with the seale of that Court and subscribed with the Teste of the chiefe Judge or Justice of the Court from whence the said Prohibition doth come at the suggestion of the Plaintife pretending himselfe to be grieved by some Ecclesiasticall or marine Judge in not admittance of some matter or doing some other thing against his right in his or their judiciall proceedings commanding the said Ecclesiasticall or marine Judge to proceed no further in that cause and if they have sent out any censure Ecclesiasticall or Marine against the Plaintife they recall it and loose him from the same under paine of the Kings high indignation upon pretence that the same cause doth not belong to the Ecclesiasticall or Marine Judge but is of the temporall cognisance and doth appertaine to the Crowne and dignitie Of Prohibitions some are Prohibitions of Law some other are Prohibitions of Fact Prohibitions of Law are those which are set downe by any Law or Statute of this Land whereby Ecclesiasticall What are Prohibitions of Law Courts are interdicted to deale in the matters therein contained such as are all those things which are expressed in the Kings Prohibition as are also those which are mentioned by the second of Edward the sixth where Judges Ecclesiasticall are forbid to hold plea of any matter contrary to the effect intent or meaning of the Statute of W. 2. Capite 3. The Statute of Articuli Cleri Circumspectè agatis Sylva Caedua the treaties De Regia Prohibitione the Statute Anno 1. Edwardi 3. Capite 10. or ought else wherein the Kings Court ought to have Jurisdiction Prohibitions of fact are such which have no precise word or letter of Law or Statute for them as have the other but What are Prohibitions of fact are raised up by argument out of the wit of the Devisor These for the most part are meere quirks and subtilties of law and therefore ought to have no more favour in any wise honourable or well ordered Consistorie than the equity of the cause it selfe doth deserve for such maner of shifts for the most part breed nought else but matter of vexation and have no other commendable end in them though they pretend the right of the Kings Court as those other Prohibitions of the Law doe but the Kings right is not to be supposed by imagination but is to be made plaine by demonstration and so both the Statute of the 18. of Edward the third capite 5. is where it is provided that no Prohibition shall goe out but where the King hath the cognisance and of right ought to have and also by the fore-named Statute of Edward the sixth which forbids that any Prohibition shall be granted out but upon sight of the libell and other warie circumstances in the said Statute expressed by which it is to be intended the meaning of the Law-givers was not that every idle suggestion of every Attourney should breed a Prohibition but such onely should bee granted as the Judge in his wisdome should thinke worthy of that favour and if right and equitie did deserve it although as I must needs confesse the Statute is defective in this behalfe for to exact any such precise examination of him in these cases as it is also in other points and is almost the generall imperfection of all Statutes that are made upon Ecclesiasticall causes but I feare mee as emulation betweene the two Lawes in the beginning brought in these multitudes of Prohibitions either against or beside law so the gaine they bring unto the Temporall Courts maintaineth them which also makes the Judges they cesse not costs and damages in cases of consultation although the Statute precisely requires their assent and assignement therein because they would not deterre other men from suing out of Prohibitions and pursuing of the same The Prohibitions of the law as have beene before shewed are neither many nor much repined at because they containe a necessary distinction betweene Jurisdiction and Jurisdiction and imply the Kings right and Subjects benefit but the
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
validity of the Will it self the Legacies and devises therein whether they were of lands or tenements or of goods or chattels the Probate it selfe worketh nothing but leaveth that to the Law Common or Ecclesiasticall according as the bequest belongeth to either of them whether it be good vailable in Law or no for it oftentimes falleth out notwithstanding the Wil be lawfully proved before the Ordinary yet the bequests are not good either in respect of the person to whom the bequests are made or in respect of the thing that is not devisable in all or in part as by the Common Law lands in Capite cannot be devised more than for two parts but in Socage the devise is good for all and by the Custome of the Citie of London some other places of the Land a man can bequeath no more than his deaths part and if hee doe his bequest is void for the rest but in other places of the land a man may bequeath all By the Civile Law a man can bequeath nothing to a Traytor or an Heretick or an unlawfull Colledge or Company unlesse perhaps it be for the aliment or maintenance of them in extreame poverty that they die not for hunger which is the worke of charitie and if he doe the legacie thereof is void to all intents purposes So then the Probate of the Ordinarie in matters of land neither helpeth nor hindereth the right of the devise it selfe but is a declaration onely of the dead mans doome uttered before such such witnesses which taketh his strength not so much from the Probate as from the Law and is testified onely by the Probate that the same was declared by the Testator in the presence of the witnesses therein named to be his true and last Will. So that no man herein is to be offended with the Ordinary as presuming of a matter not appertaining unto him for his testification in all Law and conscience doth belong unto him to give allowance so farre unto the defuncts Will as it is avouched before him to be his last act deed in that behalfe but rather they are in this case to thanke the Ordinary that he by that act of his hath preserved the memorie of that which otherwise perhaps would have been lost and perished to the great hurt of the Common-wealth and others which have private interest therein CHAP. II. SECT 1. Of the Care that Princes of this Realm have had for the due payment of Tythes unto the Church and the preserving of the cognisance thereof unto the Ecclesiasticall Courts of this Land both before the Conquest and since OF all matters that appertaine to the Ecclesiasticall Courts there is no one thing that the Princes of this Land have made more carefull provision for since there was any Church government in this Land than that all maner of Tythes due by the word of God should bee fully and truely paid unto their Parish Churches where they grew and if they were denied should be recovered by the Law of the Church * The great pietie Princely care of our ancient Kings before the Coquest is worthily noted by the Authour and because it argueth the rare devotion of those times wee will consider it more perfectly About the seventh Centurie Ina King of the West Saxons made this Law 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 hpa 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ne 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is That the Church-sceat be paid in at Martlemas if any refuse to pay it that his penaltie be fortie shillings and the payment of Church-sceat twelve times That which the law here calleth Church-sceat according to the varietie of reading hath bin diversly interpreted Fleta as if it were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 readeth Church-seed and therefore he saith it was Certa mensura bladi Trâ—tics c. So the old Lawyer in Lambert fuit un certein de ble batu que chescun homme devoit en temps des Britons des Engles porter a lour Esglise le jour Seint Martin Others reade 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Churchescet that is the Church shot or Church due Which way soever we reade the word there will bee no great injurie done to the sense yet because other things besides Corne have gone under the name of Church-sceat as the Cocks Hennes at Christmas therefore it seemeth that the last reading is the best heere it must signifie a quantitie of Corne due to the Church and to be paid in at Martlemas Why these dues and others were tendred at this Feast Hospinian thinketh he hath given a good reason but see Gretser in his Booke de Festis upon S. Martins day In the ninth Centurie King AEthelstane made this Law Ic 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 callum minum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 calle mine 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 on 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nama 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mine 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 hi 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is I AEthelstane King by the advice of Wulfhelme my Archbishop and my other Bishops command all my Reves thorough all my Kingdome in the Lords name and of all Saints and for my love that in the first place they pay the Tythe of my owne revenues as well in living Cattell as the yearely fruites 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is And this to be done at the day of the beheading of S. Iohn the Baptist And that the Subject might the more earnestly intend the observation of this Law the King addeth a pious exhortation 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Iacob 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ic 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mine 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mine 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mâ—n 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 hi 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 eac 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 on 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 bocum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mid 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ecelic 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is Furthermore thinke wee with our Our selves what Iacob the High Father to the Lord said I will give thee my Tythe and my peace-offering And the Lord himselfe in the Gospel saith To all that have it shall be given and they shall abound We might also bethinke Our selves of the penaltie which is written in this booke that if wee will not pay our Tythes then the nine parts shall bee taken away and the tenth onely shall be left us And Gods Lore putteth us in minde that for these earthly things eternall are to be had and everlasting for the transitorie Thus the religious Prince goes on and earnestly pursues the argument in the Rhetorick of those times seeming to intimate to his people that though no humane Law had interposed it selfe yet the divine equitie of this cause might be eminently enforced out of sacred Writ King Edmund in a Synod holden at London at which was present 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Oda and Wulfstan
if the usage and custome of the payment it selfe had not beene subject to the Ecclesiasticall cognisance for in vaine shall a man sue for that the Law allowes him no course to come by if it be denyed in the speciallest L. Finals ff de officio ejus cut mandata est turisd l. 3. ff de penu legata point belonging to that suite for this is undoubted Law where ever there is an authority or Iurisdiction granted there are in like manner granted all those things without which that authority or Jurisdiction cannot bee perfected or performed SECT 3. That customes of payment of tythes are triable onely at the Ecclesiasticall courts ANd therefore it is without question as Tythes by the said Statutes are onely recoverable by the Ecclesiasticall Law and not elsewhere so also the custome whereby they are paid is only triable at the Ecclesiasticall Law Otherwise this inconvenience will follow thereupon which in all other Lawes beside this of ours is a great absurditie Bartol l. nulli C. de iudicijs Glos. c. significaverunt de iudicijs that the connexitie of the cause which the Civilians call Continentiam causarum will be dismembred and disjoyned which by all good pollicie together with all her parts emergent or annexed ought to be handled discussed and determined before one and the selfe same Judge one I meane not in number but one in profession for otherwise I should by this assertion barre Appeales which is not mine intent Which course if it were held here in England causes should not be drawn peece-meale in such sort as Medea tore her brother limme-meale and one part of it carried to this Cicero pro Murena Court another to that like unto the rent lims of the childe that were cast here and there by Medea thereby to hinder her father from pursuing her but all should be ended in one and the selfe same Court which would be a great ease to the subject who now to his intolerable vexation and excessiue charges is compelled to runne from Court to Court and to gather up as it were one lim of his cause here and another there and yet happily in the end cannot make a whole and perfect body of it Beside it is a mighty disorder in a Common-wealth thus to jumble one Jurisdiction with another the very confusion as well of the one Law as the other for as Kingdomes are preserved by knowing their bounds and keeping their limits so also Jurisdictions are maintained and upheld by containing themselves within the lists or banks of their authoritie Further unles they will grant that there is an Ecclesiasticall custome as there is a Secular Custome and that the one is as well to be tried in the one Court as the other is in the other they will make their own Doctrine in the before rehearsed Prohibition voyde where they will have it certain that there is a Secular Custome if there be a Secular Custome then doubtlesse there is also an Ecclesiasticall or Spirituall custome for the word Secular is not put in that Glo 〈…〉 Clem. unica in verbo aternaliter de summa tâ—â—nit fide catholica place absolutely but relatively and the nature of Relatives is one to put another and one to remove another but in the Secular customes they barre the Civilian therefore they grant him the spirituall for of contrary things there are contrary reasons and contrary effects and what that which is proposed doth worke in that which is propounded L. Fin. §. plus autem de legatis 3. â—bâ— Angel the same againe that which is opposed doth worke in that which is opponed by which Rule as Temporall Lawyers are to deale in Temporall Customes and spirituall men are not to intermeddle therein so also Ecclesiasticall Lawyers are to deale in Ecclesiasticall causes and Temporall Lawyers are not to busie themselves thereabout And that this was the intent of the King when hee first received the Church into his protection with all the priviledges thereof may appeare hereby that having united both the Jurisdictions in his owne person he did not jumble them both together as now they are but kept them distinct one from the other not onely in authorising the Ecclesiasticall Courts that were before but also in using the very words and phrases that the Jurisdictionaries Ecclesiasticall did use every where in their writings even these words whereupon men now take hold to frame Prohibitions viz. according to the laudable customes and usages of the parish and places where such Tythes grow which were the words of Innocent the third in the Decretals upon the title of Tythe long before these Statutes were made or any other Statutes concerning the true payment of Tythes and Linwod in the same title of Tythes often useth the very selfe same words and phrases that the other doth so that if these words made no Prohibition before the Statute as I thinke it cannot well be shewed to the contrary neither ought they to doe it now since the Statute for that they are spoken still in the Church businesse and not in a temporall matter whose government although it be under one and the selfe same Prince that the temporall state is yet is it distinct from the same as ever it hath beene since there hath beene any setled forme of Church-government in any 1 Cor. 5. common-wealth as may appeare both by the example of S. Paul which never goeth to any temporall power to punish the incestuous person although there were sundry lawes then both in Greeke and Latin written of these matters but doth it by the spirituall sword alone and also by that that in matters of jarre for worldly causes betweene brother and brother hee forbids such as were new Christians to goe to 1 Cor. 6. law before Infidels but adviseth them rather to appoint Judges among themselves to decide such controversies which albeit in those dayes was meant as well of lay Christians as of the Ministers of the Gospell for that the number of them then was small and the causes of suit they had one against an other were not many and might easily be ended by one and the selfe same consistorie yet when the number of the Christians increased and the Church got some rest from persecution the Jurisdiction was againe divided and as there were secular Courts appointed by Princes wherein temporall mens causes and lay businesses were heard so there were also by the same authoritie erected Ecclesiasticall Courts and Bishops audiences wherein either Ecclesiasticall mens causes alone or such as they had against C. de Episcopali audienta â—ertia Lay men or Lay men against them were treated of and determined So that this was no new devise of Henry the eigth or Edward his Sonne that when they tooke upon them the supremacie over the Church as they had before over the common-wealth they did not mishmash both the States together and made one confused heape
of later age being lesse thankfull than they and loath to seeme beholding to Ecclesiasticall Courts for any matter of good order and disposition have arrogated the same wholly to the Temporall Courts as though the Ecclesiasticall Judge could not as well discerne what two or three honest men depose and say as concerning the limits or bounds of a Parish as twelve meane men of the countrie who are upon like depositions to give up their verdict But for the limits of Bishopricks I acknowledge that they are Temporall for that they were not primarily designed out by Ecclesiasticall men and their direction but were assigned to Provinces or Shires first described and distinguished by Princes but for Parishes neither reason nor antiquity concurres with them that they should be temporall or that they should be usurped or challenged to be of the temporall cognisance And so much for those Prohibitions which they commonly frame out of the 27. and 32. of Henry the eight not that there are no more but these but that having a taste of these there may be like Judgement made of the rest SECT 5. That the clause of treble Dammages in the 13. chapter 2. Edward the sixt is to be sued in the Ecclesiasticall Courts onely OUt of the Statute of the 2. of Edward the sixt cap. 13. they raise many Prohibitions the first whereof in order of the Statute although the last in practise is the prohibition of treble dammages upon not dividing and setting out of Tythes or at the least for the not compounding for them before they be carried away Which forfeiture they suggest and thereupon bring a Prohibition and so draw the whole suit of Tythes into their Courts contrary to the true meaning of this statute which would have those treble dammages in case of not justly dividing and setting out or not compounding for the Tythes before they be carried away be no lesse recoverable before an Ecclesiasticall Judge according to the Kings Ecclesiasticall Law than the forfeiture of double value by the letting and stopping of them to be carried away whereby they are lost with the costs thereon growing is remediable at the same Law For albeit the clause which is to redresse this wrong be put after that part of the Statute which concernes the stopping and letting of Tythes to be carried away yet when there is as great reason hatt it should stretch it self to the first branch of the provision as to the second and the second branch hangeth on the first by a conjunction copulative there is no hetorogeny or disparitie in the matter whereby it may not be as well verified in the one branch as in the other I see no reason why it should not equally respect them both according to the rule of the Law Clausula in fine posita refertur ad C. 6. tit 28. l. 1. omnia praecedentia maximè quando non resultaret intellectus contrarius juri as here it doth not for the intendment of of either branch of the Statute is to procure by their severall forfeitures a just and true payment of Tythes the recovery whereof as the precise words of the Statute in one member restraine unto the Ecclesiasticall Law so the Identitie of reason in the other member doth confirme it unto the same Law for where there is the like reason or equitie there ought to bee the like disposition or order of I. Illud ff ad l. Aquiliam Law Beside if the principall cause it selfe be triable in the Ecclesiasticall Court why should not those things which hang thereon bee tryed in the same Court for they are but as it were accessories to the principall and so not onely follow the nature of the principall but also belong to the Court of the principall and are determinable where the principall is for otherwise happily there might fall out contrary sentences of one and the selfe same thing the one condemning the other absolving Further in that Court wherein the course of Justice already is begun the cause may with lesse labour and easier expences be ended being for the most part determinable by one sentence than that a new processe thereof should begin before another Judge who knoweth little or nothing of the principall matter and therefore cannot so easily decide the accessorie Lastly those which take this course first to surmise a forfeiture then to draw the originall suit whereupon the forfeiture grew into question bring in a proceeding far different from the common stile of all well ordered Courts in all Nations among whom the conusance of the cause and tryall thereof goeth before and the forfeiture or execution thereof followeth after But in this Hysteron proteron the execution is in the forward and the tryall is in the rereward In which doing they deale much like as Cacus the Gyant dealed with Hercules Oxen who to the intent that Hercules should not finde what way they were gon drew them backward by the tayle into his Cave but as that device served not Cacus but that Hercules had his Oxen againe so it is to be hoped the Reverend Judges of the Land will not long suffer this subtiltie to prevaile but as it came in like a Foxe and reigned as a Wolfe so in the end it shall dye and vanish away like a vaine device much like the destinie of Boniface the eigth for the reverend Judges are not onely to minister justice betweene man and man so that every man may have his owne and none be oppressed by an other but also they are to carrie an upright and indifferent hand betweene Jurisdiction Jurisdiction yea though themselves be parties to the matter in question so that one Jurisdiction eate not up an other as the Locusts in Egypt devoured up all the greene things of the land SECT 6. That the naming of Law or Statute in a Statute doth not make it to be of the Temporall cognisance if the matter thereof be Ecclesiasticall ANother rendevous they make of the words of this Proviso Law statute priviledge prescription or composition reall as though all which passeth under any of these tearms must belong to the triall of the Common Law and not to the cognisance of the Ecclesiasticall Law and that forsooth because these words and tearms are expressed in the Statute which is much like unto that as one would needes have a house to be Master Peacocks house because hee saw a Peacock sit upon the top thereof But it is not the naming of a thing in a Law or Statute that makes it to be of the Temporall cognisance or otherwise but it is the nature or qualitie of the thing named that rangeth it under the one Law or the other So that if the matter ordered in the Law or Statute be Temporall the cognisance shall bee Temporall if Spirituall then the case is determinable in the Ecclesiasticall Law for this Proviso is not prohibitorie as the last Proviso of this Satute is whereby Ecclesiasticall Judges are forbidden to
Church of any right or make of holy Church any Layfee that is halowed or sanctified And all thoe that withold the rites of holy Church that is for to say offerings tythes rents or freedomes of holy Church let or distrouble or breake that is to say if any man flee to the Church or Church-yard who so him outdraweth and all thoe that therto procure or assent And all thoe that purchasen letters of any Lordys Court that processe of right may not bee determined or ended And the Canterbury booke saith All thoe ben accursed that purchasen writtes or letters of any leud Court or to let the processe of the Law of holy Church of causes that longen skilfully vnto Christen Court the which shuld not bee demed by none other Law c. And all that malycyously biriveâ— holy Church of her ryght or maken holy Church Lay-fee that is halowed blessed And also all thoe that for malice or wrathe of Person Vicare or Preiste or of any other or for wrongfull covetyse of himselfe with-holden rightfull Tythes and Offerings rents or mortuaryes from her owne parish Church and by way of coveryse fallelyche againe taking to God the worse and to hem selfe the better or else turne hem into another vse than hem dweth or done hem in other place after the rowne will so that they he not done to the same place that they should bee or let by word or by deede any man or woman for to doe her good will and her devotion to God and to holy Church For all christen men and women bene harde bound vpon paine of deadly sinne not oneliche by the ordinance of man but both in the old Law and also in the new Law for to pay truitche to God and holy Church the tythe part of all manner of increase that they winnen truliche by the grace of God both with her travell and also with her craftes whatsoe they be truliche gotten Alsoe the tythe part of all manner fishes and foules and beasts both wilde and tame And all manner of frutes that growen out of the earth Alsoe all that wittingly or wilfully tythen falsly that is to say that geven not to God and holy Church the tenth part of every wynning leefully woâ—nen in merchandise or in any other craftes withdrawen only that expence and the costage that needfully must be made about the thing whereof the winning is getten not tything the winning of one marchandise with the losse of another And all thoe that of the fruites of the earth or of beast or of any thing that neweth in the yeare geven not the tythe wholy withouten any costage All thoe that falsly tythen taken to God the worse and holden the better to her owne profite against the ordinaunce of Boniface sometyme the Archbyshope of Cantorbury by the which ordinaunce throughout the Province of Cantorbury shuld be one manner axing of tythes in this manner wise Of all manner of frutes of earbis of gardens withouten any manner of cost abating of hey where ever it groweth in greate medes or in smale as oft as it neweth of neweing of all manner of besteal of calfe or of lambe fro seaven vpward into the tenth and fro syx downeward for everyche of hem an halfe penny but if the Person or Vicarye will abide till another yeare and tell thilke that leeven and take the other beast that followeth of woole that is woxen of fellis fro purification of our Lady of milke all the while that it dureth as well in Winter as in Sommer but if they will doe gree therefore to the Person or to the Vicary for the profite of holy Church Of fishing of 〈…〉 eing of veneson oâ— beene of all other good rightfully wonnen that newen by the yeare of profite of mills and weris of fishing noe cost abate but to the very value shall the tythe be payd of lesewys communys severelis shall the tythe trulyche bee payd after the number of the beeseis or the dayes as it is most profite to holy Church all werkemen and chapmen that wynnen on her craftes and on her marchandise shulen trulyche pay her lythe to God and to holy Church Alsoe Carpenters and Smithes and Weeveris and all other crafty men and all other hired men and wimen shulen Tythen of all they getten but if they wulle giue any certayne thereof to holy Church at the Persons or Vicaryes will Alsoe of fowles of Calues of Piggs of Gees of Hennes of flaâ—e of Hempe of Corne and of all thing that neweth by the yeare Alsoe of shryding of Trees and of all manner of vnderwood woring or hewed Alsoe men of holy Church moune curse by name hem that wolen not pay her Tythes as it is written in many places of the law of holy Church At the repeating of these Articles the Prelate standeth in the Pulpit in his Albe the Crosse being lifted up and the candles lighted After the Repetition these or the like formall words of Execration are denounced Ex Authoritate Dei Patris Omnipotentis beatâ— Mariae Virginis omnâ—â—m Sanctorum excommunicamus and thematizamus Diabolo commendamus omnes supradictus malefactores Excommunicati sunt anathematizati Diabolo commendati Maledicts sunt in villis in campis in vus in semitis in domibus extradomes iâ—omnibasâ—atâ—is locu stando jacendo surgendo ambulando currendo vigilando dormiendo comedendo bibendo aliud opus faciendo Or as the Canterbury Booke saith But thorow authoritie of our Lord God Almightye and our Lady S. Mary and all Saints of Heuen of all Angels or Archangers Patriarchs and Prophets Euangelists Apostles Martyrs Confessors and Virgines alsoe by the power of all holy Church that our Lord Iesus Christ gaue to S. Peter we denounce all thoe accursed that wee haue thus receiued to you and all thoe that maintaine hem in her sins or geuen hem hereto either helpe or councell soe that they bee departed from God and all holy Church and that they haue noe of the passion of our Lord Iesu Christ ne of noe Sacramentes that bene in holy Church he noe part of the prayers among christen folke but that they be accursed of God and of holy Church fro the soole of their foote vnto the crowne of her head sleaping and waking sitting and standing and in all her words and in all her workes and but if they haue grace of God for to amend hem here in this life for to dwell in the paine of hell for euer withouten end Fiat Fiat Doe to the boke Quench the Candle Ring the Bell Amen Amen This Generall Sentence was solemnly thundered out once in every Quarter that is as my old Booke saith the fyrst Sonday of Advent at comyng of our Lord Ihesu Cryst the fyrst Sonday of Leenten The Sondaye in the Feste of the Trynyte and the Sonday within the vtus octavesweesay of the blessyd Vyrgyn our Lady S. Mary damnation Neither did all such as did then
which hee had from his cradle or hath happened to him by any accident without any default of his and cannot be easily remedied or reprocheth him with any thing in his state or condition wherewith hee is not justly to be charged neither is there any just cause offered the diffamer why hee should use such disgracefull speeches against the other then is it altogether punishable For that such things tend onely to contumelie and despite which the Law seeketh by all meanes to represse for that thereby charitie betweene man and man is violated and the peace of the Common-wealth is many times broken and disturbed The proceeding in these causes in the Civile Law was of two sorts for it was either ad publicam vindictam or else ad privatum interesse as the partie injuried made his choice thereof Ad publicam vindictam was when the partie Diffamed ff ad L. Corneliam l. in constitutionibus §. ult sought to have the Diffamer recant his words or to undergoe some open and infamous punishment for his rash and malicious speeches whereby it might be publikely knowne abroad that he did the other wrong But Ad privatum interesse was when hee sought not the ff de verborum obligation l. stipulationum §. planè ff de rejudicat L. si quis ab alâ—o recalling of the slaunderous speeches which were given out against him but esteemed his credit at some great rate as that hee would not for a thousand pounds or more or lesse quantitie according as the worth and calling of the person is have had such speeches gone out of him and so seekes to have his credit salved by recompence in money as the Judge or Jurie upon proofe of his worth and place shall esteeme it and taxe it In these actions hee that sued ad publicam vindictam and had followed so farre as that he had brought it to a Recantation or a publike disgrace could not have recompence of his credit by money save onely in case of commutation neither hee that had got his credit valued by money could have a publique disgrace also inflicted for his satisfaction but what way hee had chosen with that he must have rested contented for that irefull mens wraths otherwise would never have beene satisfied and the prosecution of these actions otherwise would be confounded These two kindes of proceedings the Princes and Sages of former ages seeme to have sorted to the two kindes of Jurisdiction that are amongst us the one Spirituall the other Temporall and therefore the Law of the Land it selfe saith in a cause of Diffamation when money is not demanded but a thing done for punishment of sinne which is all one as when the Civilians say when it is done ad publilicam vindictam it shall be tryed in the Spirituall Courts whereupon by argument of contrary sense it followeth that where the punishment of sinne is not required but amends in money is demanded there it is to be tryed in the Temporall Court for the Law would that â—â—ery man should have his remedie agreeable to reason in what sort him best liketh And therefore be the fault what it may be that the words of the Diffamation do sound unto as long as it stands but in words and the partie doth not take upon him to justifie the matter that is comprised under those words and doth seeke but for the punishment of the slanderous words onely so long it is to be tried at the Spirituall Law for the Law speaketh in generall in cases of Diffamation where punishment of sinne onely is required so that where a man is called Traitor Felon or murtherer or any other crime belonging unto the Common-Law being every one of them words of great diffamation so the partie therein seeke punishment onely and not his private interest there the Spirituall Law is to hold plea thereof For where the Law doth not distinguish there neither ought wee to distinguish but the Law hath said in generall that causes of Diffamation whose prosecution is thus qualified do belong unto the tryall of the Spirituall Law and therefore even those cases before remembred where the partie followeth this kinde of prosecutions ought by that Law to belong unto the Spirituall Court as on the contrarie side Spirituall causes of Diffamation being propounded to a pecuniarie end ought to be ordered in a Temporall Court But where any man takes upon him to justifie the crime that hee hath objected there either Court is to hold plea of the crime that properly belongeth to that Court for that now words are no longer in question but matter is in tryall whether the partie diffamed hath indeed committed that offence that he is charged withall or no which can be tryed in no other Court than in that to which it doth properly appertaine And that this was the course anciently held in matters of Diffamation betweene the Ecclesiasticall and Common Law it is manifest by the Statute of 2. of Edward 2. Edw. 3. c. 11. the 3. chapter 11. where although the Statute taxeth the perverse dealing of such who when they had beene indicted before the Sherifes in their Returne and after delivered by Inquest before the Justice of the Assise did sue the indictors in the Spirituall Court surmising against them that they had diffamed them and therefore in that case forbad the like suits for that justice thereby was hindered and many people were feared to indict Offenders yet that Statute plainly sheweth that in all other cases of Diffamation rising out of Temporall crimes beside this the Ecclesiasticall Law had the cognisance and that this was forbidden it was not for that words of this nature could not be censured at the Ecclesiasticall Law when punishment of sin onely is required but for that it was not fit that those things which had beene once ordered in one Court should be called againe to examination in another and therefore the generall proceeding in matters of Diffamation is not there prohibited but the particular crossing of matters after judgement is there reprehended So that the distinction whereof I formerly spake which taketh upon it to determine when a case of Diffamation is of the Temporall cognisance and when of the Ecclesiasticall cannot here take place for that it is contrary to the former Statute or Decree that divided these cases into Temporall or Ecclesiasticall cognisance by the varietie of the prosecution thereof and that it is contrarie to the ancient practise that hath confirmed this prosecution in either Court but especially in the Ecclesiasticall Court which hath still holden the triall of such Diffamations wherein sin hath bin only sought to be punished untill now of late that men have stept over the bankes of theirauthoritie and confounded either Jurisdiction with the promiscuous acts one of another when as the Statute it selfe is plaine that the Authors of this Statute or Decree whethersoever you call it which set these bounds to either Law in proceeding upon matters of Diffamation
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 §
the Law is tempered with the sweetnesse of equitie which is nothing else but mercie qualifying the sharpenesse of Justice to either which Courts they have sorted men fit for their skill and education to manage the same that is to the seat of Justice the professors of the Law of this Land who may be thought best to know the Justice of the same but to the other they have assigned the professors of the Civill Law for that a great sort of titles of that Law are titles of equitie as whatsoever is Jus praetorium or Jus aedilicium with them is matter of equitie so that they may seeme best able for their skill in these titles of which no other Land hath the like to assist the Lord Chancellour in matters of Conscience Who though he be a man for the most part chosen by the Prince himselfe out of the rest of the Sages of this Land for his speciall good parts of learning and integritie above the rest as now the honourable person is that occupieth that place who is as Tullie said of that eloquent Orator Marcus Crassus Non unus ex multis sed unus inter omnes propè singularis so that they might be thought for their great and eminent wisdome in all things appertaining to their place able to direct themselves yet because it is Divinitatis potiùs quā humanitatis omniū rerū habere memoriam in nullo errare as one saith It was providently done by Princes of former age to joyne to these great personages men furnished with knowledge in these cases of conscience wherin if they should at any time stick they might be advised by them that are assessors with them what they find in the law proportionable to the case in hand that thereto they might square their decree or order accordingly whose variety in these cases is such that hardly there can fall out any case in practice but there will be some Law in that learning conformable unto it which opportunity of men furnished with this knowledge for that seat his Majesty shall want unlesse the study of the Civill Ecclesiasticall Law be maintain'd which also for the cases of equity constience therin is cald of the old writers Aequitas Canonica And what reason gave occasion to these precedent Princes to place men indowed with the skill of the Civill Law in the Court of Chancerie the same also ministred unto them mindes to commit unto the selfe same men the ordering of their Courts of Requests for that therein for the most part are handled poore miserable persons causes as widows and Orphans and other distressed people whose cases wholy relie on pietie and conscience as a fit subject for that Law to deale in which also will take a maime if the studie of the Civill Law be not upholden So then to deny a free course to the Civill and Ecclesiasticall Law in this Land in such things as appertaine to their profession or to abbridge the maintenance thereof is to spoyle his Majestie of a part of his honour whose glory it is to be furnished with all sorts of professions necessary for his state and beneficiall for his subject to weaken the State publique bereave it of grave and sage men to advise the State in matters of doubt and controversie betweene forraine Nations and themselves to disarme the Church of her faithfull friends followers and so to cut the sinewes as much as in them lyeth of Ecclesiasticall discipline and to expose her to the teeth of those who for these many yeares have sought to devoure her up and so now would do it if the mercifull providence of God and the gracious eye of the Prince did not watch over her And so far of the necessitie of these two professions and generally of the use and disuse of the Civill and Ecclesiasticall Law in this Land and wherein it is overlaid by the Common-Law and how it may be relieved if it seeme good unto his Majestie and the wisedome of this Realme All which I have written not of any purpose to derogate from the credit of that Law under which I was borne and by which I hold that small maintenance that I have fo I reverence it as a necessary Law for this State and make such reckoning of every of the professours in his place as becommeth me but that it pitieth mee and not only mee but all those that tender good learning and have no prejudicate minde toward the Common-Law to see two such Noble Sciences as the Civill and Ecclesiasticall Law are so to be disgraced as that there is no more reckoning made of them or their professours than if they were matters and men of no worth and fit or apt for no service in the Common-wealth and yet notwithstanding the use of them is so necessarie as that the Common-wealth cannot want the service of them in matter of great importance to the State which if the profession should come to a downefall as it is like shortly to do if it be no more cherished and made of than it is will be sooner seene by the want of them than is now perceived by the having of them and then perhaps will the State lament for the losse of so goodly a profession when it will be hardly recovered againe as the children of Israel did for the tribe of Benjamin when they had in one dey slaine well nigh the whole number of them FINIS AN INDEX OF THE PRINCIpall Matters and Words contained in this Booke A ABbyes erected for good ends pag. 183. 184. but subverted for private 212 Absence from judgement hindereth not processe 58 Accessorie when to be determined where the principall 157. when not 232. what things to be accounted accessories 233 Acts of appropriations 202 Actions for things lent or pawned Of Ejectment Of Compensations Of Passengers Marriners Fathers Masters 7. Of Mandate Society Bargaine Change Restitution Vsurie 9. Popular 22. Exercitorie 89. Of Trover 128 which is prejudiciall to the Ecclesiasticall Law 130. 131. Actiones praejudiciales what 242. Of Diffamation where to be tryed 240 241. Administration when admitted in what order and when to be taken 13. Administrators false dealing with Legatories and how to bee remedyed vid. Executors Admiraltie 128 Pope Adrian restraineth the priviledge granted by Paschal 200 Adoption must be of such as are younger than the Adoptant 130 Adulterie what 22. how punished ibid. Advocates the necessitie of them 78. parallel'd with souldiers 101 Advonson what 196. how obtained ib. Aethelstane his law for Tythes 138. 139 Aimoine why silent in Charles Martels Sacriledge 166 Alcoran alloweth Tythes 175 Alienations not to be made for feare of suit 78 Almes-money what 139 K. Alured his grant to Churches 193. Inventour of Lanthorns 197 Apertura Feudi what 73 Apostles Canons of what authoritie 194 Appeales when admitted from whom by whom and when to be made 26. 55. 78. 79. 80 Appearance within what time to be made 24 Appropriation vid. Impropriation Aquinas
the accidents 227 Titulus what 152 Treason what 22 Treasure found to whom it belongeth 38 Treasurer of the Chamber 47 Treaties betwixt Princes to be made by Civilians 96 Treble damage of Ecclesiasticall jurisdiction 156 Toll-gatherers exacting how to be punished 14 Trees when and why they may bee lopped by another than the owner 16. loppings of great trees tythable 229. cutting of another mans how to be punished 19. 231. Tribonian a famous Lawyer 32 Tribute 31 Actions of Trover what 128 Truce at sometimes more especially to be observed 78 Tumult how punished 19 Turves tythable 221. arguments to the contrary answered 222 Tutelage the severall kindes thereof 9 Tutors 9. how distinguished from Guardians 10. what required of them ibid. 59 Tythes matters of Ecclesiasticall Cognisance 138. 143. 148. and reall composition for them 201 202. by the Lawes of our Saxon Kings 138 139 140. c. How they stood after the Conquest 142 143. in what case triable in a Temporall Court 144. the forfeitures for non-payment 156 157 the curse therefore 172 173. their different State under the Law and Gospell 161. with the causes thereof 162. seq when they came in use among Christians 161. part of the Morall Law 163. 203. and how farre 205. the ground of the precept 180. first invaded by Charles Martell 164. and in imitation of him by others 169 170. allowed by Mahomet 175. and strictly exacted in Primitive times 173. 174. to bee payed to the Baptismall Church 176. 214. 215. the contrary why not reformed in the Lateran Councell 178 179. not to bee deteined by a Bishop though Founder of a Bâ—nefice 206. nor were his Primitive Endowments 209. of Mineralls due 217. of Turves 221. of boughes of great trees 229. If in no Parish to whom they belong 208. manner of tything how to bee understood 180. prescriptions against tythes 179. 206. 207. Immunitte from tythes why first granted to Religious Houses 188. wherein Religious Orders were exempted from paying tythes and of what things 200. many Lands pretended tyth-free by that exemption which are not 201 V In the Vacancy who anciently had the fruits 217 Valvasores majores minores who 73 Vassailes of of how many kindes 72. 73 Villages converted after Cities 215 S. Vincents Crow 170 Vniversities permitted the use of the Civile Law 87 88 Pope Urbans legantine 193 Vse of money 224 Vsurers infamous 42 Vsury the kindes of it 8. how much to be taken of a husband-man 55. ceaseth when it hath doubled the principall 64. is an accessorie to the principall 233. Sea usurie 62. greater then Land usurie and why 9 W Waste ground of Ecclesiasticall Cognisance 223. 224. seq Water courses not to be altered 16 Widowes how to distribute their goods 51. such as live riotously how provided for by the Civile Law 269 Wills vid. Testaments William the Conquerour his care for Church right 141. 142 Winchester Church how anciently endowed 199 Witnesses what manner of men 61. may bee compelled to appeare 79. how many required to a Will 134 135. of one man dangerous 136. false witnesses 24 Wives in what cases they may be beaten 62 Women in case of suretyship how to be releived 7. not endowed 57. may be Tutors 61 Wood taken for all kinde of fewell 223. great woods in what cases tyth-free 229. 230. and why 231. wood and timber how distinct ibid. Words diffamatory how punishable 236. vid. Diffamation Wrackes what and how to be disposed of 92 93. FINIS ERRATA PAg. 36. lin ult for reade from p. 38. 〈…〉 p. 107. l. 8. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 r. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 r. that p. 177. l. 24. capellas r. capella p. 191. l. ult in r. an 〈…〉 4. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 r. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 p. 212. l. 1. is r. it p. 224. l. 15. 〈…〉 r. out in these p. 231. l. 8. other secundum r. other but secundum p. ibid l. 9. but in that r. in that p. 233. l. 30. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 r. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉