whereof I said there was no special Tractat in the Digest sauing that it deuideth the publike right into that which concernes the Church and Church men the Magistrates of the Common wealth prosecuting the latter branch thereof only omitting the first because out of that heathenish Religion which was vsed in those ancient Lawyers daies and those supersticious Rites whereof their Bookes were full nothing could be taken that might serue for our Religion wherupon he instituted a new discourse thereof in the Code beginning first with the blessed Trinitie one in essence and thrée in person wherein he sets downe a briefe summe of our Christian faith agréeable to the doctrine of the Prophets Apostles and the fower first generall Counsels the Nicene Constantinopolitan Ephesine and Calcedon forbidding any man publikely to dispute or striue thereabout taking occasion vpon the Nestorian Heresie which not long before had sprung vp and had mightily infected the Church which Iustinian by this confession of Fayth so published to the whole world and penall Edict ioyned thereunto hoped to represse After he hath set downe a full and sound confession of the Christian faith conformable to the Primitiue Church next he addeth a title of the holie Church it selfe and of her priuiledges which either concerne Ecclesiasticall mens persons themselues or their state and substance or the actions one Ecclesiasticall man had against an other or with or against Lay persons where also he prosecuteth the degrées of Priests or Ministers their offices orders and how the same are to be come by that is without bribes or Simonie or other worldly respect saue the worth of the person onely and the rights of holie places Priests are so called because they were consecrated and as it were seuered from the rest of the people and giuen vp to God which also were called Elders eyther because they were so in age or ought to be in such manners and carefull cariage of themselues Amongest Priests or Ministers Bishops haue the first place who are as it were the Ouerseers and Superintendents of the rest so called of their watchfulnesse care labour and faithfulnesse in teaching the people and doing other dueties which they owe vnto the Church The lowest degrée of men among the Ecclesiasticall hierarchy were the Clarkes so called of their lot by which they were chosen and allotted to Gods seruice To Bishops Priests and other of that rank did appertaine the care of Hospitals whereof some were for Orphans some for Infants some for Impotent and diseased persons some for Poore people some for Strangers other like miserable persons therefore together with the title of Bishops Clarks is ioyned the title of Hospitals or Almes-houses In place next after the Bishops themselues comes their power audience for albeit the chiefest office of a Bishop is to instruct the people in the doctrine of the word in good example of life yet forasmuch as all will not be obedient vnto the word neither brought by the persuasion thereof to good nurture to be kept in order the eminency of the degrée wherin the Bishops are placed is not sufficient to kéepe the people in obedience without some power iurisdiction and because the Church it selfe is the mother and maintainer of Iustice therefore there is by the Emperor himselfe and his predecessors as many as professed Christianitie certaine peculiar iurisdictions Ecclesiasticall assigned to the Bishops more worthy then the Ciuill ouer persons and causes Ecclesiasticall such as touch the Soule and Conscience or do appertaine to any charitable or godlie vses and ouer the Laitie so far forth as eyther the Laitie themselues haue bin content to submit themselues vnto their gouernment that is so far as eyther it concernes their Soules health or the outward gouernment of the Church in things decent or comly or that it concernes poore and miserable persons such as widowes orphans captiues and such other like helplesse people are or where the Ciuile Magistrates cannot be come by or doth voluntarily delay iudgement in all which anciently a Bishop was to performe double fayth and sanctitie first of an vncorrupt Iudge and then of a holy Bishop But in many of these matters in these dayes the Laitie will not suffer themselues to be controld and therefore hath taken away most of these dealings from them yea euen in charitable causes Immediatly followeth a title of Heretickes Maniches Samaritans Anabaptists Apostataes abusers of the Crosse of Christ Iewes and worshippers of the hoast of heauen Pagans and of theyr Temples and Sacrifices whom the Bishop is not only to confute by learning but also to suppresse by authoritie for he hath not the Spirituall sword in vaine The Heretickes Iewes and Pagans shall not haue Christian men and women to be their seruants that such as flie to the Church for Sanctuarie or claime the ayde thereof shall not be drawen from thence vnlesse the offence be haynous and done of a pretensed and purposed malice in which case no Immunitie is to be allowed them but wicked people are to be punished according to their desert agréeable to the word of God it selfe which would not haue his Altar be a refuge vnto the wicked And so far of that part of publike right which appertayneth to the Priestes or Ministers and their Function which was omitted in the Digest but prosecuted in the Code Now it followeth that wyth like breuitie I run ouer the thrée last Bookes of the Code which themselues were rather shadowed in the Digest in the title of the right of the Exchequer then in any iust proportion handled The first therefore of them setteth out what is the right of the Exchequer and in what things it standeth as in goods excheted because there is no Heire vnto them or that they are forfeyted by any offence worthie death or otherwise How such as are in debt to the Exchequer and their suerties are to be sued Of the right of those things which the Exchequer sels by outcry where he that offereth most carrieth it away and how the same may be reuoked vnlesse all rights and ceremonies bee solemnly performed therein How things that are in Common betwéen the Exchequer and priuat men may be sold and that the Exchequer euict nothing that it hath once sold for that it were a thing against the dignitie of the Exchequer would terrifie priuat men for bargaining with it Of those that haue borrowed money out of the publicke receipts and what penaltie they incurre if they repay it not at their daies couenanted sometimes the forfaiture of foure double of that they haue borrowed sometimes danger of life it selfe That in cases of penalties the Exchequer be not preferred before such as the Offender was truely indebted vnto but that they be first serued and then the Exchequer haue onely that which is left What vsurie the Exchequer may take that is for money lent and not for such sums as grow out of Mulcts and
money in liew thereof Although this Tenure by the first creation thereof be perpetuall yet that the soueraignty thereof should not still remaine vnprofitable to the first Lord the whole benefyt thereof going continually to the vassall or tenant it is prouided that the Soueraigne or chiefe Lord the first yeare the heyre or Successor of the vassall comes vnto his land shall haue the whole reuenue of his liuelihood for that yeare or a certeine summe of money in token of the retorne thereof vnto the Lord and the redemption thereof made againe by the tenant which by the Law of the Nouels is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is well nigh the same that we call liuery which euery heire that holdeth in Knights seruice sueth out before he take possession of his land as heire to his ancesters This Tenure is got eyther by Inuestiture or by Succession Inuestiture is the same that we call Creation and is the primier grant of a feude or tenure to any with al rights and solemnities thereto belonging wherein the homager or feodatarie for the most part vpon his knées promiseth faith and allegeance vnder a solemne oath vnto his Lord and his successors Succession is whereby the eldest sonne succéedeth the father in his inheritance and if he faile and haue no issue then the next brother and so in order successiuely and if there be no sonne then the next heire male and if their bée no heyre male then the land escheats vnto the Lord. For the Lumbards from whom the feudes first came or at the least were chiefly deriued from them directing all their policie as the Lacedemons did to matters of warre had no seminine feudes among them but after by processe of time there were created aswell Feminine feuds as Masculine feuds insomuch as where there was no issue male to put them from it women did succéed in the inheritance Of Feuds some are regall some not regall Regall are those which are giuen by the prince only neither doe belong to any inferior to giue Of these some are Ecclesiasticall as Archbishopricks Bishopricks and such like Others are Ciuile or Temporall as Dukedomes Earledomes Vicounts and Lords who by that are distinguished from the rest of the people that they haue the conducting of the Princes Armie at home and abroad if they be thereto appointed and haue right of Peeres in making of Lawes in matters of triall and such other like businesses Not Regall are those which hold not immediatly of the Prince but are holden of such Ecclesiasticall or Ciuile States which haue had their Honours immediatly from the Prince Besides of Feuds some are Liege others not Liege Liege Feuds are they in the which the vassall or feodatorie promiseth absolute fealtie or faith to his Lord against all men without exception of the King himselfe or any other more auncient Lord to whom besids he oweth alleagance or seruice Of this sort there is none in this Realme of England but such as are made to the King himselfe as appeareth by Littleton in the title of Homage wherein is specially excepted the faith which the Homager oweth to his Lord the King Feuds not Liege are such wherin Homage is done with speciall reseruation of his faith and alleageance to the prince and Soueraigne Of such as are Vassals or Liege men some are called Valuasores maiores others Valuasores minores Valuasores maiores are such as hold great places of the State vnder the Emperour or King as are the degrées of Honour before named and are called Péeres of the Land which only giues Nobilitie Valuasores minores are those which are no Péers of the Land and yet haue a preheminence aboue the people and are as it were in a middle Region betwéene the people and the Nobilitie such as are Knights Squires and Gentlemen The Feuds are lost by sundry waies by default of issue of him to whom it was first giuen which they call Apertura feodi by surrender therof which by them is termed Refutatio feodi by forfaiture and that was in two sorts either by not doing the seruice that his tenure did require or by committing some villenous act against his Lord as in conspiring his Soueraignes death defiling his bed or deflowring his daughter or some other like act treacherous to his Lord and vnworthy of himselfe And so much of the Ciuile Law and the Bookes thereunto pertaining Now it followeth I doe in like order speake of the Canon Law which is more hardly thought vpon among the people for that the subiect thereof in many points is of many grosse and superstitious matters vsed in the time of Papistrie as of the Masse and such other like trumperie and yet there are in it beside many things of great wisdome and euen those matters of superstition themselues being in a generalitie well applyed to the true seruice of God may haue a good vse and vnderstanding The Canon Law hath his name of the Gréeke word Canon which in English is a Rule because it leads a man straight neither drawes him to the one side or the other but rather correcteth that which is out of Leuill and Lyne The Canon Law consisteth partly of certaine Rules taken out of the holy Scripture partly of the writings of the auncient fathers of the Church partly of the ordinances of general prouincial Councels partly of the Decrees of Popes of formerages Of the Canon Law there are two principall parts the Decrées and the Decretals The Decrées are Ecclesiasticall constitutions made by the Pope and Cardinals at no mans suite and are either Rules taken out of the Scripture or Sentences out of the auncient Fathers or Decrées of Councels The Decrees were first gathered together by Ivo Bishop of Carnat about the yeare of our Lord God but afterward polished and perfected by Gratian a monke of the order of Saint Bennets in the yeare 1149. and allowed by Eugenius the Pope whose Confessor hee was to bee read in Schooles and to bee alledged for Law Of all the seuerall volumes of the Canon Law the Decrées are the auncientest as hauing their beginning from the time of Constantine the great the first Christian Emperour of Rome who first gaue leaue to the Christians fréely to assemble themselues together and to make wholsome lawes for the well gouernment of the Church The Decrées are diuided into thrée parts wherof the first teacheth of the origen and beginning of the Canon law and describeth and setteth out the rights dignities degrées of ecclesiasticall persons and the manner of their elections ordinations and offices and standeth of one hundred and ten distinctions The second part setteth out the causes questions and answeres of this Law which are in number 36. and are full of great varietie wisdom and delight The third and last part containeth matter of consecration of all sacred things as of Churches bread and wine in the Sacrament what daies and Feasts the Primitiue Church vsed for the receiuing thereof of
al should be ended in one and the selfe same Court which would be a great ease to the subiect who to his intollerable vexation and eycessiue charges is compelled to run from Court to Court and to gather vp as it were one lim of his cause here and another there and yet happily in the end cannot make a whole and perfect body of it Beside it is a mightie disorder in a common wealth thus to iumble one Iurisdiction with another the very confusion as well of the one law as the other for as kingdomes are preserued by knowing their bounds and kéeping their lymits so also Iurisdictions are maintained and vpheld by containing themselues within the lists or banks of their authoritie Further vnlesse they will graunt there is an Ecclesiastical custome as there is a Seculer Custome and that the one is as well to be tryed in the one Court as the other is in the other they will make their owne Doctrine in the before-rehearsed Prohibition void where they certaine vs there is a Seculer Custome and if there be a Seculer custome then doubtlesse there is also an Ecclesiasticall or spirituall custome for the word Seculer is not put in that place absolutely Glos in Clem. vnâ—â—a in verbo aterna â—teâ— de summa trinit f de catholica but relatiuely and the nature of Relatiues is one to put another one to remoue another but by the Seculer custom they but the Ciuilian therfore they grant him the spirituall for of contrarie things there are contrarie reasons and contrarie effects and what that which is proposed doth worke in that which is propounded the same againe that L. Fin. § pâ—us â—â—tem de legatis 3. ibi Angel which is opposed doth worke in that which is opponed by which Rule as Temporall Lawyers are to deale in Temporall Customes and spirituall men are not to intermedle therin so also Ecclesiasticall Lawyers are to deale in Ecclesiastical causes and that temporal Lawyers are not to busie themselues thereabout And that this was the intent of the king when he first receiued the Church into his protection with all the priuiledges therof may appeare hereby that hauing vnited both the Iurisdictions in his owne person hee did not iumble them both together as now they are but kept them distinct one from the other not only in authorising the Ecclesiasticall Courts that were before but also in vsing the verie words and phrases that the Iurisdictionaries Ecclesiasticall did vse euery where in their writings euen these words whereupon men now take hold to frame Prohibitions vpon viz. according to the laudable customs vsages of the parish and places where such Tythes growe which were the words of Innocent the third in the Decretals vpon the title of Tythe long before these statuts were made or any other statuts concerning the true payment of tyths and Linwod in the same title of tithes often vseth the very selfe same words and phrases that the other doth so that if these words made no Prohibition before the statute as I think it cannot well be shewed to the contrarie neither ought they to do it now since the statute for that they are taken still in the Church businesse and not in a temporall matter whose gouernment although it be vnder one and the selfe same Prince that the Temporall state is yet is it distinct from the same as euer it hath bin since there hath bin any setled forme of Church gouernment many common 1. Corinth 5. wealth as may appear both by the example of S. Paul which neuer goeth to any temporal power to punish the incestuous person although there were sundry lawes then both in Gréeke and Latine written of these matters but doth it by the spirituall sword alone and also by that that in matters of Iar for worldly causes betwéen brother and brother he forbids such as were new Christians to go to law before 1. Corinth 6. Infidels but aduiseth them rather to appoint Iudges among themselues to decide such controuersies which albeit in those daies was ment as wel of lay Christians as of the ministers of the Gospell for that the number of them then was small and the causes of suit they had one against another were not many and might easily be ended by one and the selfe same consistorie yet when the number of the Christians increased and the Church got some rest from persecution the Iurisdiction was againe diuided and as there were Seculer Courts appointed by Princes wherin Temporal mens causes and Lay businesses were heard so there were also by the same authoritie erected Ecclesiasticall Courts and Bishops C. de episcopall audienta tâ—rtis audiences wherin either Ecclesiasticall mens causes alone or such as they had against Lay men or Lay men against them were treated of and determined So that this was no new deuise of Henry the eight or Edward his sonne that when they tooke vpon them the supremacie ouer the Church as they had before ouer the common wealth they did not mishmash both the states together and made one confused heape of them both but left them seuered as they found them only affording either of them an equall proportion of protection for that by these two parts the kings Monarchie is compleat and himselfe is the head and chiefe Gouernour of the whole and entire bodie of his Realme For this was exemplaried vnto them in all former ages since the Church and common wealth had any louing and kind cohabitation together as hath béene before remembred And therefore doe they wrong to the ashes of those kings deceased which by subtill sence and strained interpretations draw these Lawes which they intended for the benefit of the Church and Church gouernment to the ouerthrow of the same as though the Positiue Lawes of the kingdome could not stand if the Lawes of the Church continued and stood vp right Vpon the same words of the same Statute if perhaps at any time there grow any controuersie about the limits or hounds of Parishes they draw the same by like importunitie from the triall of the Ecclesiasticall Law vnto the Common Law auouching the same also to bee of the Temporall cognisance and yet Linwod who liued in the daies of Henry the fift making a Catalogue of the principall matters that in his daies belonged vnto the Ecclesiasticall Courts reckoneth the bounds of Parishes for one And very like it is it should so be for that Ecclesiasticall men first in this Kingdome made diuisions of Parishes as by our owne Cronicles it appeareth and the first practise thereof within this Realme came from Honorius the fourth Archbishop of Canterbury after Augustine who himselfe died in Registro Eccle. XpÌ„i Cant. Stow. the yere of our Lord God 693. although otherwise the thing it selfe be more auncient and discends from the councell of Saint Paul he gaue to Titus to appoint Elders in euerie Citie but that Cities and Countries againe are
Kings Ecclesiasticall Courts here within the Land 111 What is a Prohibition and how many sorts are thereof 113 Of Admirall causes and in what sort they are hindered 115 Of Actions of Trouer and how far Fictions in Law are to be admitted and how far not 116. c. Wherein last Wils and Testaments are impeached 121 Of the care that Princes of this Realme haue had for the due payment of Tythes vnto the Church and the preseruing of the cognisance thereof vnto the Ecclesiasticall Courts of this Land both before the conquest and since 124 c. That the Statutes of the xxvii and xxxii of H. the viii and the 2. of Edward the vi c. 13. intended for the true paiment of Tythe and the preseruation of the triall therof vnto the Ecclesiasticall Courts are now turned to the hinderance of them both 128. c. That customes of payment of tythes are triable onely at the Ecclesiasticall courts 131. c. That the lymits and bounds of Parishes are of the Ecclesiasticall cognisance onely 135 That the clause of treble Damages in the 13. chapter 2. Edw. 6. is to be sued in the Ecclesiasticall courts only 137. That the naming of law or Statute in a statut doth not make it to be of the Temporall cognisance if the matter therof be Ecclesiasticall 139. c. How it comes to passe that when tythes were neuer clogged with custome prescription or composition vnder the Law they are clogged with the same vnder the Gospel and the causes thereof 142 Tythes anon after the dissolution of the Iewes policie were entertained by the Christians as a naturall prouision for the Ministers of the Gospell and leased out by God vnto the Iewes for the time of their policie only 142 That Charles Martell Father of King Pippin was the first that euer toke tythes from the Church and assigned them ouer to Lay men in fee and vpon what occasion 145 That to the imitation of this fact of Martell other Princes did the like euery one in his Kingdome 145 That this fact of Martel being done about the yeare 606. stood vnreuersed vntill the Lateran councell vnder Alexander Anno 1189. and that the reformation was then but in part 146 That Ecclesiasticall Iudges admit pleas in discharge of tithes and the maner of tything contrarie to the conceit that is had of them 149 Of Priuiledges and how they came in 150 That by reason of the frequence of priuiledges Statutes of Mortmaine came in 150 Of the beginning of cloistered monks in the west Church of Christendome and that the author thereof was one Benedict a Roman about the yeare 606. 153 That from Benedict and his order flowed all the rest of the orders of Religious men 153. c. That the admiration that these Religious men did breed of themselues in the head of Princes and Popes did procure appropriations of parsonages and immunities from Tiths 153 That the ouer conceit that men had of praier aboue preaching in the church was an adiuuant cause therunto 154 Whether Appropriations came first from Princes or Popes it is questionable 155 Exemptions from tythes brought in by Pope Paschall in fauour towards all sorts of Religious men 158 The same restrained by Pope Adrian and limited to the Cystertians Hospitallers Templers and the Knights of Saint Iohn of Ierusalem onely sauing to the other the Tythes of grounds laboured with their owne hands onely 159 That Innocent the third in the third Lateran Councell 1120. restrained those foure orders from immunitie of Tythes for such grounds as they should acquire after that councel which Henry the fourth imitating prouided by two Statutes of this Land against their immunitie 159 That if this reuocation of Immunitie by Innocent the third these two Acts of Henry the fourth were wel weighed they would ouerturne many of the priuiledges chalenged by the Statut of 31. H. 8. c. 13. for exemption of Monasterie Lands from Tithes 160 That Reall compositions for Tythes are the deuise of Ecclesiasticall Lawyers and are to be tried by the Ecclesiasticall Courts 160 That the curiositie of Schoolemen in their distinctions vpon Tythes haue helped forward Appropriations and Exemptions from Tythes 161 The opinion examined as concerning the quotitie of tithes whether it be Morall Ceremoniall or Iudiciall 161. c. That a Bishop being Lord of a Manor and prime founder of a Benefice could not in the first erection thereof by his owne capacitie retaine any Tythes in his hand and passe the same after in lay-fee to his tenants and so giue cause to his tenants of prescription against the parson 165 That Bishops indowments in the beginning stood not in Tythes but in finable Lands 167 That the turning of Bishops indowments into tenthes or tythes for impropriat parsonages is vnsutable to the first institution and very dangerous 168 That it had bin a worthy worke in the first reformers of Religion if they had returned to euery parish their owne parsonage and the dislike that God may seeme to haue conceiued of that 169 That tythes are a Parochian right and how Parishes in the Christian world came first to be instituted 171 That tythes of Minerals are due 174 That tythes of Turues be due 178 That the cognisance of barren heath and wast grounds belongeth to the Ecclesiasticall courts and what euery of them are 180 That the boughes of great trees are tythable and so also are the bodies but in the case of the Statute only 185 In what cases diffamatorie words belong to the Ecclesiastical and in what to the common law 191 That the suit of bastardie aswell in the principall as in the incident belongs vnto the Ecclesiasticall Law 199 The meanes to relieue the Ecclesiasticall courts 209 The right interpretation of Lawes and Statuts 209 Wherein the three Statutes for tythes may be supplied 212 What things may bee ordered by the Ciuile Law yet not prouided for by the common Law and others of like nature to those that are expressed 215 Of the necessitie of retaining the practise of the Ciuile and Ecclesiasticall law within this Land 224. c. FINIS A VIEW OF THE Ciuile and Ecclesiasticall Law also wherein it is straighted and wherein it may be relieued BEFORE I shew how necessarie it is for his Maiestie and the Realme to maintaine the Ciuile and Ecclesiasticall Law as they are now practised among vs in this Realme I will set down as it were in a briefe what the Ciuile and the Ecclesiasticall Lawes are then will I shew how farre forth they are here in vse and practise among vs thirdly wherein we are abridged and put beside the vse and possession thereof by the Common Lawe euen contrarie to the old practise thereof and the true sence and meaning of the Lawes of this Realme and the Statutes in this behalfe prouided and lastly wherein we might be relieued and admitted to the practise of many things in the Ciuile Law without preiudice to the Common Lawe and
Nephew And thus much of succession of kings wherein the eldest among Males hath the prerogatiue and the like in Females if there be no Male for that a Kingdom is a dignitie vndiuisible and can come but to one bee hee Male or Female for that otherwise great gouernments would soone come to small Rules and Territories And the like that is said of Kingdoms is to be held of all Dignities vnder Kingdomes where the eldest son is to bee preferred before all his other brethren and they successiuely one before another if there be no issue left of them that goe before and the Male line is to be preferred before the Feminine and the Feminine before all the rest of the kindred so it be not a Masculine Feud and the same intailed vpon the heire Male. And thus far as concerning the matters wherein the Ciuile Law dealeth directly or incidently within this Realme Now it followeth to shew how much of all those titles of the Canon Law which haue bin before set downe are here in practise among vs. Of those Titles of the Canon Law which before haue béene recited some are out of vse here with vs in the singular or Indiuiduum by reason of the grosse Idolatry they did containe in them as the Title of the authoritie and vse of the Pal the title of the Masse the title of Reliques the worship of Saints the title of Monks and Regular Canons the title of the kéeping of the Eucharist and Creame such other of like qualitie but yet are retained in the generall for in stead of them there are substituted in their places holy worships tending to the like end of godlinesse those other did pretend but void of those superstitious meanes the other thought to please God by and so in stead of the Masse hath come in the holy Communion and in place of worshipping of Saints hath succeeded a godly remembrance and glorifying of God in his Saints and so of the rest whereof there is any right vse within the Church Some other are out of vse as well among the Ciuile as Criminall titles because the matter that is therein treated of is knowne notoriously to belong to the conusance of the Common Law at this day as the titles of Buying and Selling of Leasing Letting and taking to Farme of Morgaging and pledging of Giuing by déed of gift of Detecting of Collusion and Cosenage of Murder of Theft and receiuing of Théeues and such like And yet I doubt not but euen these matters as well Ciuile as Criminall or most of them were aunciently in practise and allowed in Bishops Courts in this Land among Clerkes to the which I am induced by three reasons First that I find not only the forraine Authors of the Decretals but also the domesticall Authors of the Legantines being all most excellent wise men as the Stories of their seuerall ages do report to haue inacted these seuerall constitutions and to haue inserted them not onely in the bodie of the Canon Law but also in the bodie of the Ecclesiasticall Lawes of this Land and that some wise men sundry years after their ages did write and comment vpon the same as things expedient and profitable for the vse of the Church and the gouernment of the Clergie in those daies neither of which I doe presume they would haue done if in those ages there had not béene good vse and frée practise of them Secondly that I find in the Code of Iustinian by sundry Laws some of his own making some other of other Emperors before his time euen from the daies of Constantine the great bishops in their Episcopall audience had the practise of these matters as wel Criminal as Ciuile and to that end had they their Officials or Chauncellors whom the Law calleth Ecclesiecdici or Episcoporum Ecdici that is Church Lawyers or Bishops Lawyers men trained vp in the Ciuile and Canon Law of those ages to direct them in matters of Iudgement as well in Ecclesiasticall Criminall matters as Ecclesiasticall Ciuile matters And that these which now are Bishops Chauncellers are the verie selfe same persons in Office that aunciently exercised Ecclesiasticall Iurisdiction vnder Bishops and were called Ecclesiecdici it may appeare by that which Papias an old auncient Historiographer cited by Gothofred in his Annotations vpon the foresaid Law Omnem in the Code and title de Episcopis and Clericis and vpon the § Praeterea writeth of them who saith thus that Ecclesiecdici or Ecdici were those that were ayders and assisters to the Bishops in their Iurisdictions not astrict or bound to one place but euery where through the whole Diocesse supplying the absence of the Bishop which is the very right description of the Bishops Chauncellers that now are who for that they carrie the Bishops authoritie with them euery where for matters of Iurisdiction and that the Bishop and they make but one Consistorie are called the Bishops Vicars generall both in respect their authoritie stretcheth it selfe throughout the whole Diocesse also to distinguish them from the Commissaries of Bishoppes whose authoritie is onely in some certaine place of the Diocesse and some certaine causes of the Iurisdiction limitted vnto them by the bishops and therefore are called by the Law Iudices or Officiales foranei as if you would Clem 2. ca. foraneos de rescript say Officiales astricti cuidam foro diocesis tantum So that it is a very méere conceit that a certaine gentleman very learned and eloquent of late hath written that Chauncellers are men but of late vpstart in the world and that the sloth of bishops hath brought in Chauncelors wheras in very déed Chauncellers are equall or néere equall in time to Bishops themselues as both the Law it selfe and Stories do shew yea Chauncellers are so necessarie Baldus l. aliquando ff de officio Proconsulis officers to Bishops that euery Bishop must of necessitie haue a Chaunceller and if any Bishop would séeme to be compleat within himselfe that he néeded not a Chaunceller yet may the Archbishop of the Prouince wherein he is compell Couar lib. 3. variarum resolut c. 20. num 4. S. Brâ—zâ— lâ—b 1. de vicaâ—â—o 〈◊〉 q. 46 nâ—m 1. 4. 12. 13. him to take a Chaunceller or if he refuse so to doe put a Chaunceller on him for that the Law doth presume it is a matter of more weight than one man is able to susteine to gouerne a whole Diocesse by himselfe alone and therefore howsoeuer the nomination of the Chaunceller be in the Bishop yet his aucthoritie comes from the Law and Hostiensis in sum made officio Vicarij numoro 2. in sine nomirationem ab 〈◊〉 potestatem vero a iure recipiuntur therefore he is no lesse accompted an Ordinary by the Law than the Bishop is But trueth it is not the sloth of the Bishops but the multitude and varietie of Ecclesiasticall causes brought them in which could not be defined by
the same word Elsewhere is to be ment and conceiued of the places of remoue the Popes vsed in those dayes being somtimes at Rome in Italy sometimes at Auignion in France semetimes in other places as by the date of the Bulls and other processe of that age may be séene which seuerall remoues of his gaue occasion to the Parliament of inserting the word Elsewhere in the bodie of those Statutes that thereby the Statutes prouiding against Processe dated at Rome they might not bée eluded by like Processe dated at Auignion or any other place of the Popes aboade and so the penaltie thereof towardes the offender might become voyd and be frustrated Neyther did the Lawes of this Land at any time whiles the Popes authoritie was in his greatest pride wythin this Realme euer impute Praemunire to any Spirituall Subiect dealing in anie Temporall matter by any ordinarie power wythin the land but restrained them by Prohibition only as it is plaine by the Kings Prohibition wherein are the greatest matters that euer the Clergie attempted by ordinarie and domesticall authoritie and yet are refuted only by Prohibition But when as certeine busie-headed fellowes were not content to presse vpon the kings Regall iurisdiction at home but would séek for meanes for preferment by forrein authoritie to controul the Iudgements giuen in the kings Courts by processe from the Pope then were Premunires decréed both to punish those audacious enterprises of those factious Subiects and also to check the Popes insolencie that he should not venter hereafter to enterprise such designements against the King and his people But now since the feare thereof is past by reason all entercourse is taken away betwéene the Kings good Subiects and the Court of Rome it is not to be thought the meaning of good and mercifull Princes of this land is the cause of these Statutes being taken away the effect thereof shall remaine and that good and dutifull subiects stepping happily awry in the exercise of some part of their Iurisdiction but yet without preiudice of the Prince or his Regall power shall be punished with like rigor of Law as those which were molesters gréeuers and disquieters of the whole estate But yet notwithstanding the edge of those Premunires which were then framed remaine sharpe and vnblunted still against Priests Iesuits other like Runnagates which being not content with their owne natural Princes gouernment séek to bring in againe that and like forrein authoritie which those Statutes made prouision against but these things I leaue to the reuerend Iudges of the land and others that are skilfull in that profession onely wishing that some which haue most insight into these matters would adde some light vnto them that men might not stumble at them and fall into the daunger of them vnawares but now to Prohibitions A Prohibition is a commaundement sent out of some of the Kings higher Courts of Records where Prohibitions haue bin vsed to be graunted in the Kings name sealed with the seale of that Court and subscribed with the Teste of the chiefe Iudge or Iustice of the Court from whence the said Prohibition doth come at the suggestion of the Plaintife pretending himselfe to be grieued by some Ecclesiasticall or marine Iudge in not admittance of some matter or doing some other thing against his right in his or their iudiciall procéedings commaunding the said Ecclesiasticall or marine Iudge to proceed no further in that cause if they haue sent out any censure Ecclesiasticall or Marine against the plaintife they recall it and loose him from the same vnder paine of the Kings high indignation vpon pretence that the same cause doth not belong to the Ecclesiasticall or Marine Iudge but is of the temporall cognisance and doth appertaine to the Crowne and dignitie Prohibitions some are Prohibitions of Law some other are Prohibitions of fact Prohibitions of Law are those which are set downe by any Law or Statute of this Land whereby Ecclesiasticall Courts are interdicted to deale in the matters therein contained such as are all those things which are expressed in the kings Prohibition as are also those which are mencioned by the second of Edward the sixt where Iudges Ecclesiasticall C. 13. 2. Edw. 6. are forbid to hold plea of any matter contrarie to the effect intent or meaning of the statute of W. 2. Capite 3. The statute of Articuli Cleri Circumspecte agatis Sylua Cedua the treaties De Regia Prohibitione the Statute Anno 1. Edwardi 3. Capite 10. or oght else wherein the Kings Court ought to haue Iurisdiction Prohibitions of fact are such which haue no precise word or letter of Law or Statute for them as haue the other but are raised vp by argument out of the wit of the Deuiser These for the most part are méere quirks and subtilties of law and therfore ought to haue no more fauour in any wise honourable or well ordered Consistorie than the equity of the cause it selfe doth deserue for such manner of shifts for the most part bréed nought else but matter of vexation and haue no other commendable end in them though they pretend the right of the Kings Court as those other Prohibitions of the law doe but the Kings right is not to be supposed by imagination but is to be made plaine by demonstration and so both the Statute of the 18. of Edward the third Capite 5. is where it is prouided no Prohibition shall goe out but where the King hath the cognisance and of right ought to haue and also by the forenamed Statute of Edward the sixt which forbids that any Prohibition shall bee graunted out but vpon sight of the libell and other warie circumstances in the said Statute expressed by which it is to bee intended the meaning of the Lawgiuers was not that euery idle suggestion of euery Attorney should bréed a Prohibition but such onely should bee graunted as the Iudge in his wisdome should thinke worthy of that fauour and of right and equitie did deserue it although as I must déeds confesse the Statute is defectiue in this behalfe for to exact any such precise examination of him in these cases as it is also in other points and is almost the generall imperfection of all statutes that are made vpon Ecclesiasticall causes but I feare me as emulation betwéene the two lawes in the beginning brought in these multitudes of Prohibitions either against or beside law so the gaine they bring vnto the Temporall Courts maintaineth them which also makes the Iudges they cesse not costs and damages in cases of of Consultation although the statute precisely requires their assent and and assignement therin because they would not feare other men from suing out of Prohibitions and pursuing of the same The Prohibitions of the law as haue beene before shewed are neither many nor much repined at because they containe a necessarie distinction betwéene Iurisdiction and Iurisdiction and imply the kings right and subiectes benefit but the
Prohibitions of fact or of men are both infinit and odious for that there is well nigh no matter either Ciuile or Ecclesiasticall bee it neuer so cléere or absolute but they clog it and incumber it with some Prohibition and the matter they conteine is for the most part absurd and friuolous as shall first appeare in Marine causes and after in Ecclesiasticall matters For Marine causes it is well knowne that all such bargaines and contracts or as it were contracts as are made by any persons either in any forraine country or any Hauen or créeke of the Sea or any shoare thereof as far as the greatest winter waue doth run out or vpon any great riuer to the first bridge next to the Sea for any marchandize ship tackle or other negotiation belonging to the Sea or to any marchandize brought from beyond the Sea is and ought to bee of the admirall cognisance and so euermore hath béene since the Court of the Admiraltie was first erected and yet the Common Lawyers to defeate the Ciuile Law of the tryall thereof haue deuised sundry actions and among the rest an action of Trouer whereby they faine that a ship arriued in Cheapside or some other like place within the citie and there the Plaintife and Defendant meeting together bargained vpon some marchandize or other like sea-faring matter by which fiction they pretend the bargaine now is to bee tryed in the Common Law and not by the Ciuile Law as being done in the bodie of a Countie and not vpon the maine Sea or any other place subiect to the Admirall Iurisdiction But that this fiction or any other like qualitied to this should haue any such force as to worke any effect in Law I will shew first by the definition of a fiction then by those things that are necessarily attendant thereon A fiction thereof is defined by Bartol whom also the rest â— si is qui proemptore § 3. ff de vsucapiomb ibi Bartol of the Doctors doe follow to be an assumption of the Law vpon an vntruth for a truth in a certaine thing possible to be done and yet not done vpon which fiction the Doctors hold there wait two things the one is Equitie the other Possibilitie For first vnlesse there because why that which is not should be famed to be and that which is should bee accounted not to bee and that which is done in one sort or at one time or in one place should be imagined to be done in another sort at another time and in another place there is no reason a fiction should be admitted for the Law alloweth no man to come to extraordinarie remedies but where ordinarie remedies faile and therefore if that which is in controuersie may be obtained by any other meanes than by a fiction a fiction is not to be afforded but if ordinarie means cannot be had then fictions may be entertained to supply the L. in causa ff de numrib defect of the ordinarie meanes that thereby although the truth bee otherwise yet the effect of the Law may bee all one So then the Law faineth an infant not yet borne to bee borne for his benefit for that happily without that fiction L. qui in vtero penult de statu hoÌ„â—â— ff the poore infant should be remedilesse of his Filiall portion Legacie or other right in conscience due vnto him so Nephewes and Neeces succéed together with their Vncles and L. 1. § si â—iliuâ— ff de suis legit l. 2. l. 3. l. 4 C. â—od l Galâ—us 29 § bene § videndum ff de liberis posthum◠§ cum filius Instâ—t de haered abâ—nâ—â—â—ato L. veriâ— est § vl ff pro socio L. action § publicatione ff eod L. absenteÌ„ ff de verhoruÌ„ signâ—ficat L. lege Cornel ff ff de testamenâ—is Aunts in their Grandfathers and Grandmothers goods for such portion as should haue come to their parents if they had liued for that the Law presumeth them to represent the person of their parents so he that is dead is fained to be aliue to many constructions in Law speciall if many of his equals in age be aliue at the time that hee is fained to bee aliue so he that is aliue and is in captiuitie for the vpholding of his will which he made in libertie is fained to be dead the houre before he became captiue so he that is obstinat and will not appeare in Iudgement being lawfully called thereto is fained to be present that neither himselfe should take benefit out of his obstinacie neither his aduersarie hurt by his absence and iniurie Infinite more examples might be brought of this sort but it would be too long to run thorough them al and this shall suffice to haue shewed that the Law approueth fictions but where there is equitie for it and the Law it selfe otherwise cannot haue her effect And as the Law cannot L. Gallus § fi eius ff de liberis posthumis l. fi pater § sicum ff de adopt Horat. de Arte poetica procéed to a fiction without equitie so neither can it faine any thing that is impossible for Art euermore followeth Nature and therfore if a man would faine disproportionable things such as the Painter did in Horace who made Boares wallow in the waues of the Sea and Dolphins wander in the woods these fictions in no sence can be admitted for that they are such as neither nature nor reason can brooke In like sort if a man would faine one to liue who were dead two hundred yeares since so that it were not possible that he or Bartol l. si is quâ— proemptore num 21. 22. 23. sâ—…quentib any of his equals should liue at that age this would not hold in Law for that it is aboue the age the Law doth presume any man may liue by Nature although the Law doth presume such as dye in war for defence of their country for the better incouragement of those that are aliue to venter themselues in like seruice for the common wealth to liue for euer because their fame doth florish for euer and vpon like reason the Law will not suffer any person to adopt another for his child who is either elder or equal in age vnto himselfe or is not so far vnder his yeares as by course of Nature he might bee his naturall child indéed so much the Law detesteth impossibilities that it will not suffer a man to fame that which in common Sence and Nature might not be true indéed Now if these things be true as in all reason and shew by former precedents they appeare to be true I would gladly see how actions of Trouer whereby the Common Lawyers translate vnto themselues matters of Marine triall if they be squared to these Rules of Fictions can be maintained for first to speake of equitie which the Law requires in these manner of proceedings what equitie can it be to take away
trauersable so it be not in Criminall matters where time and place is required that the accuser doe not wander from place to place with the iniurie of the accused for howsoeuer the place and the action is altered yet the truth of the cause remaineth one and the selfe same still and so far as concerning actions of Trouer in Admirall causes Now it doth follow that I should speak of like preiudices that grow to the same by actions of Trespas but those will I passe ouer for that in so small a Treatise as this is I cannot go ouer all and therefore will I only put the Reader in mind that there are more deuises rising out of the Common Law that infest the Admiraltie than one But now to Wils and Testaments wherein they are impeached For matters of Wills and Legacies they are so proper to the triall of the Ecclesiasticall Law of this Realme as the professors of the Common Law themselues do oftentimes confesse and say they haue no more to doe therewith than the Ciuilian hath to doe with the knowledge of the matters of Franktenement and yet euen these matters of Testaments Legacies although Prohibitions be not so frequent in them as they are in the rest of Ecclesiasticall causes yet they are not quite void of them and that in some points wherein the verie life essence of a Will doth stand For whereas the auncient Romanes knowing how subiect matters of Wils are to forgerie corruption on the one side and suppression concealment on the other side to méet with all craft subtilty whatsoeuer which might seize on them did most carefully prouide that there should be seuen witnesses at the least present at the making of euery Will Testament except it were in time of some generall plague or sicknesse when so many Witnesses could not conueniently be had together for feare of infection or if it were in the Countrie where there are small multitude of people and that those witnesses should be particulerly required to that purpose with diuers other obseruations and circumstances tending all to the safe and sure making thereof which the Ecclesiasticall Law altered afterward in sundry points for that many true Wills were many times ouerthrowen for want of those precise solemnities reduced the whole number of those seuen witnesses vnto two only agreeably to the Law of God the Law of Nations where that number of witnesses is allowed as competent to prooue any matter so that the same witnesses be honest credible persons such as whose faith is not doubted of The Common Lawyers because themselues in sundry matters very dangerously many times admit one witnesse giue him full credit and that in matters of great waight importance as though all should be squared to their rule and framed to their compasse If an Ecclesiasticall Iudge in the probate of a Will contrarie to the rules of his owne Law will not admit the testimonie of one witnesse they forthwith fling out a Prohibition against him as though he had done an offence against the Crowne and dignitie in that he doth not allow those number of witnesses in the Probate of a Will that the Common Lawes of this land allow almost in euery matter For aunswere to which if I should alleage the precise forme of the Ecclesiasticall Law which to the essence of a will requireth this number of two witnesses or else holdeth it not for a Will but in cases inter liberos ad pios vsus where the only hand of the Father or Testator without witnesses serueth for a Will so the same be knowen to be the Testators owne hand or so prooued by comparison I would think to wise men I had said sufficiently but I will not rest hereupon but will conuince themselues by themselues for doe they I pray you in their owne procéedings where a Law or Statute requires more witnesses than one content themselues with one witnesse alone yea doe they not in all cases where a certeine number of witnesses are appointed to prooue a fact by Law or statute furnish the cause with so manie witnesses as the case desires or else doe they not accompt the procéeding void And will they think themselues so precisely bound to the kéeping of the letter of the Common law and will they not suffer the Ciuilian in like maner to cleane fast to the obseruation of the Ciuile Law especially when it hath the consent of the Law of God the Law of Nations and is his Maiesties Ecclesiasticall Law of this land aswell as the other is his Temporall Law of the same I confesse it may be true many times which one man saith specially when there concur therewith many great and violent presumptions and the party that reporteth it is of good credit but dangerous it is to open this gap to the malice of men for euen so many things shall be obtruded to the Iudge for trueth which are stark lyes and many things shall be pretended to be gold in shew which in proofe and practize will L. iuris urandi §. Simili modo C. de Testibus be found to be no other thing but méere drosse And therefore well decréed the Emperor Constantine that no one mans testimonie should be heard though he were neuer so great a man in Court But perhaps some man will say if credit shall not be giuen oftentimes to one mans testimonie much wickednesse will passe away vnpunished for reply to which I aunswere it is better to let a bad man scape than to punish a good and although it be true if a man may excuse himselfe by deniall no man will be found guiltie so also it is true on the other side if it be ynough to condemnation to be charged by one man alone without any other witnesses no man shall be innocent and therefore the admittance of one witnesse in causes and the procéeding thereupon to iudgement is verie dangerous An other like bar to this they lay in against Ecclesiasticall procéedings in matters of Testament whereas an Ecclesiastical Iudge prooueth a Will wherein are mannors lands tenements and other like hereditaments bequeathed challenging this also to be of the Crowne and dignity as though the Ecclesiasticall Iudge thereby tooke vpon him to decrée which lands were deuisable by will and which not or would by his probat adde a strength vnto the Will to make the deuise good or bad whereas on the contrarie part the Ecclesiasticall Iudge by this act doth only testifie that such a person made such a will that the same was prooued before himselfe vnder his Teste for his last will testament but for the validitie of the Will it selfe and the Legacies deuises therein whether they were of lands or tenements or of goods or chattels the Probat it selfe worketh nothing but leaueth that to the Law Common or Ecclesiastical according as the bequest belongeth to either of them whether it be good vailable in
diuided into Tit. cap. 1. v. 5. seueral Parishes it was the ordinance of Pope Dionisius about the yere 266. frō him deriued into this other realms the distinction thereof was chiefely deuised that it might be knowne of what congregation euery people were and that so they might be trained vp in the Schole of godlinesse vnder their owne Pastor or Minister But that now the diuision of Parishes doth serue to other politike vses it comes not of the first institution thereof which was méere Ecclesiastical but it groweth out of a second cause that is because beeing so fitly and aptly primarily diuided by Ecclesiasticall men as they are the Princes therefore did vse the opportunitie thereof for Temporall seruices subdiuiding the same againe into many Tythings or like smaller diuisions for the more spéedie seruice of the king and better ordering of the common wealth Which our auncient Fathers well knowing neuer called the same in question acknowledging therein the good they had receiued from Ecclesiasticall men by this partition of Countries into Parishes but men of later age being lesse thankfull than they and loath to séeme beholding to Ecclesiasticall Courts for any matter of good order and disposition haue arrogated the same wholy to the Temporall Courts as though the Ecclesiastical Iudge could not as well discerne what two or thrée honest men depose and say as concerning the limits or bounds of a Parish as twelue meane men of the countrie who are vpon like depositions to giue vp their verdict But for the limits of Bishoprickes I acknowledge that they are Temporall for that they were not primarily designed out by Ecclesiasticall men and theyr direction but were assigned to Prouinces or Shires first described and distynguished by Princes but for Parishes neyther reason nor antiquitie concurs with them that they should be temporall or that they should be vsurped or challenged to be of the temporall cognisance And so much for those Prohibitions which they commonly frame out of the 27. and 32. of Henry the eight not that there are no more but these but that hauing a taste of these there may be like Iudgement made of the rest Out of the statute of the 2. of Edward the 6. cap. 13. they vpstart many Prohibitions the first whereof in order of the Statute although the last in practise is the prohibition of treble damages vpon not diuiding and setting out of Tythes or at the least for the not compounding for them before they be carried away Which forfeiture they suggest and thereupon bring a Prohibition and so draw the whole suit of Tythes into their Courts contrary to the true meanning of this Statute which would those treble dammages in case of not iustly diuiding and setting out or not compounding for the Tythes before they be carried away be no lesse recouerable before an Ecclesiastical Iudge according to the Kings Ecclesiasticall Law than the forfeyture of double value by the letting and stopping of them to be caried away whereby they are lost with the costs thereon growing is remediable at the same Law For albeit the clause which is to redresse this wrong be put after that part of the Statute which concernes the stopping and letting of Tythes to be carried away yet when there is as great reason it should stretch it selfe to the first branch of the prouision as to the second and the second branch hangeth on the first by a coniunction copulatiue and there is no hetorogeny or disparitie in the matter whereby it may not be aswell verified in the one branch as in the other I see no reason why it should not equally respect them both according to the rule of the Law Clausula in fine posita refertur ad omnia C. 6. tit 28. l. 1. precedentia maximè quando non resultaret intellectus contratius iuri as here it doth not for the intendment of eyther branch of the Statute is to procure by theyr seuerall forfeytures a iust and true payment of Tythes the recouerie whereof as the precise words of the Statute in one member restrayne vnto the Ecclesiasticall Law so the Identitie of reason in the other member doth confirme it vnto the same Law for where there is the like reason L. Illud ff ad l. Aquiliam or equitie there ought to bee the like disposition or order of Law Beside if the principall cause it selfe be triable in the Ecclesiasticall Court why should not those things which hang thereon be tried in the same Court for they are but as it were accessaries to the principall and so not only follow the nature of the principall but also belong to the Court of the principall and are determinable where the principall is for otherwise happily there might fall out contrary sentences of one and the selfe same thing the one condemning the other absoluing Further in that Court wherein the course of Iustice already is begun the cause may with lesse labour and easier expences be ended being both for the most part determinable by one sentence than that a new processe thereof should begin before an other Iudge who knoweth little or nothing of the principall matter and therefore cannot so easilie decide the accessarie Lastly those which take this course first to surmise a forfeyture then to draw the originall suit whereupon the forfeyture grew into question bring in a proceeding far different from the common style of all well ordered Courts in all Nations among whom the cognusance of the cause triall thereof goeth before and the forfeyture or execution thereof followeth after But in this Hysteron proteron the execution is in the foreward and the triall is in the rereward In which doing they deal much like as Cacus the Giant dealed with Hercules oxen who to thintent that Hercules should not find what way they were gon drew them backward by the tayle into his Caue but as that deuise setued not Cacus but that Hercules had his oxen againe so it is to be hoped the Reuerend Iudges of the land will not long suffer this subtiltie to preuaile but as it came in like a Fore and raigned as a Wolfe so in the end it shall dye and vanish away like a vaine deuise much like the destinie of Boniface the eight for the reuerend Iudges are not only to minister Iustice betweene man man so that euery man may haue his owne and none be eppressed of an other but also they are to carrie an vpright and indifferent hand betwéene Iurisdiction and Iurisdiction yea though themselues be parties to the matter in question so that one Iurisdiction eat not vp an other as the Locusts in Egipt deuoured vp all the greene things of the land An other Rendeuous they make of the words of this Prouiso Law statute priuiledge prescription or composition reall as though all which passeth vnder any or these tearmes belongeth to the triall of the Common Law and not to the cognisance of the Ecclesiasticall Law and that
forsooth because these words and tearmes are expressed in the Statute which is much like vnto that as one would needes haue a house to be Master Peacocks house because he saw a Peacock sit vpon the top thereof But it is not the naming of a thing in a Law or Statute that makes it to be of the Temporall cognisance or otherwise but it is the nature or qualitie of the thing named that rangeth it vnder the one Law or the other So that if the matter ordered in the Law or Statute be temporall the cognisance shall be Temporall if Spirituall then the case is determinable in the Ecclesiasticall Law for this Prouiso is not prohibitorie as the last Prouiso of this statute is whereby Ecclesiasticall Iudges are forbidden to hold plea of any thing that is in the said Prouiso conteyned but it is rather directiue and sheweth where the Ecclesiasticall Iudge is to giue way to immunities and to pronounce for them so that for any thing is conteyned in this Prouiso to the contrary the cognisance of these matters specially Priuiledge Prescription and Composition still remayneth at the triall of the Ecclesiasticall Law as they did before this Prouiso was made De praescripr lib. 2. tit 26. De Priuileg lib. 5. tit 33. for Tythes and other Ecclesiasticall dueties as may appeare by the seuerall Tytles in the same Law hereon written And for the other words Law and Statute therein mentioned when as the King hath two Capacities of gouernment in him the one Spirituall the other Temporall and his high Court of Parliament wherein Lawes are made doth stand aswell of Spirituall men as Temporall men and so ought to stand in both houses if the auncient booke De modo tenendi Parliamenti be true and authenticall which makes the vpper house of thrée states the Kings Maiestie the Lords Spirituall and the Lords Temporall and the Lower house in like sort of thrée other the Knights the Procurators for the Clergie and the Burgesses and his Maiestie hath wythin this Realme aswell Ecclesiasticall Lawyers as Temporall which are no lesse able to iudge and determine of Ecclesiasticall matters than the Temporall Lawyers of temporall businesse It is not to be imagined but as his sacred Maiestie will haue those Lawes to be held Temporall and to haue their constructions from Temporall Lawyers which are made and promulged vpon Temporall rights and causes So also his Highnesse pleasure is and euer hath béene of all his predecessors Kinges and Quéenes of thys Land that such Lawes and Statutes as are set out and publyshed vpon Ecclesiasticall thinges and matters shall bee taken and accompted Ecclesiasticall and interpreted by Ecclesiasticall Lawyers although eyther of them haue interchangeably each others voyce in them to make them a Law And that the King doth infuse life into eyther of the Lawes when as yet their substance is vnperfect and they are as it were Embreos is in Temporall matters by his temporall authoritie and in Spirituall matters by his spirituall authoritie for to that end he hath his double dignitie in that place as also the Ecclesiasticall Prelates sustaine two persons in that place the one as they are Barons the other as they are Bishops So that euen the orders of the house doe euince that they are two sortes of Lawes in that place vnconfounded both in the head and the bodie although for communion sake and to adde more strength to each of them the generall allowance passeth ouer them all And as they rest vnconfounded in the creation of them so ought to be likewise in the execution of them and as the Temporall Law sortes to the Temporall Lawyers so the Spirituall Lawes or Statutes should bée allowed and allotted vnto the Spirituall Lawyers And as the nomination of these words Law or Statute in this precedent Prouiso makes not the Law or statute Temporall but remayneth wholie Ecclesiasticall by reason of the Spirituall matters it doth conteine and the power of him that quickneth it and powreth life thereinto so much lesse can the inserting of these tearmes Priuiledges Prescriptions or Composition reall intitle the Common Law to the right thereof or the Professors of the said Law to the interpretation thereof for that matters of these tytles so far as they concerne Tythes and other Ecclesiasticall dueties haue béen euermore since there hath been any Ecclesiasticall Law in this land which hath been neere as long as there hath béen any profession of Christianitie with vs of Ecclesiasticall ordinance neyther euer were of the Temporall cognisance vntill new of late that they transubstantiat euery thing into their owne profession as Midas turned or transubstanciated euery thing that he touched into gold But here it will not be amisse to inquire since Tythes came in the beginning of the Primitiue Church wythin a little time after the destruction of Ierusalem and the subuersion of the Iewes policie vnto the Christian Church and Common wealth void of all these incumbrances as shall appeare after by the testimonie of sundrie of the auncient Fathers which were néere the Apostles time how it comes to passe since Tythes are no lesse the Lords porcion now than they were then and in the Patriarkes time before them that these gréeuances haue come vpon them more vnder the Gospell than euer they did vnder the Law for then neuer any Lay man durst stretch out his hand vnto them to diminish any part thereof but he was charged Malach. 3. with robberie by the Lords owne mouth and in punishment thereof the Heauens were shut vp for gyuing raine vnto the earth and the Palmer worme and Grashopper were sent to deuour all the gréene things vpon the earth And for Ecclesiasticall men it is not read any where in the Scripture that euer they attempted to graunt out anie priuiledge of Tythes to any person other than to whom they were disposed by the Law or to make anie composition thereof betwéene the Lay Iew and the Lords Leuites euery of the which haue beene not only attempted agaynst the Church in Christianitie but executed with great greedynesse so far worse hath béene the state of the Ministerie vnder the Gospell than was the condition of the Priestes and Leuites vnder the Law The beginning whereof although it be hard for me to finde out because there is small memory thereof left in Stories yet as far as I can by all probabilities coniecture this great alteration in Ecclesiasticall matters came by two occasions the one by the violence of the Laitie thrusting themselues into these Ecclesiasticall rights contrarie to the first institution thereof for when they were first receyued into the Christian world they were receyued and yéelded to for the benefit of the Clergie only as in former time vnder the Law they had béen for the vse of the Priestes and Leuites only The other was the too too much curiositie of Schoolmen who beeing not content with the simple entertaynment of Tythes into the Church as the auncient fathers
howsoeuer the refusal be or be not they grant out their Prohibition in these cases And yet if the Iudges Ecclesiasticall procéedings might be séene and vouchsafed to be read before them it would bee plaine there were no such cause of their hard opinion against them for euerywhere they doe allow such like allegations And if perhaps one inferiour Iudge shold make refusal as they pretend yet could it not be reformed by another in an ordinarie course of appeale but that there must néeds be brought a Prohibition out of the Common law to redresse the same vnlesse happily they can shew it is a generall conspiracie in the Ecclesiasticall Iudges or a Marime in their learning that they will not or cannot admit any Plea of discharge in this case which they can neuer doe And therefore they are to be intreated to change their opinion in this point and doe not the Ecclesiasticall Iudges that wrong as to charge them with such an imputation whereof their whole practise is witnesse to the contrarie for it is vnworthy such mens grauitie as theirs is who propound vnto themselues the inquirie of the truth in all matters thus to be misconceiued and masked in an errour and that for so many yeares and not to bee willing to heare the contrarie which is an obstinacie in policie no lesse indurat than the Papists is in Religion who see the truth and will not beleeue it And so far as concerning Prescriptions and the first cause and beginning thereof Now it followeth I speake of Priuiledges which are immunities graunted vnto priuat men beside the Law Of these some are very auncient such as true zeale toward the Church bred and the iust admiration of the holy men of God for their sanctimonie of life their great knowledge in the word of God their great patience in persecution for Christ and his Gospell the vigilancie and care they had in their Office stirred vp both in Prince and people So Constantine the great being rauished with the loue of Religion and the good opinion he had of the Ministers of his time erected Churches and endowed them with large possessions and graunted them sundry immunities whereby they might more securely intend to the preaching of the word of God and the winning of soules to the Christian congregation wherein they laboured with all their might and power God still adding to the number of the Elect. Neither did he this alone in his owne person but he also gaue leaue to all other of his subiects that would doe the like whereupon L. 1. C. de sacros Ecclesiis §. si quiâ— authent de Ecclesia the Church was so inriched within a short time that as Moses in the building of the Arke was faine to make Proclamation no man should bring in more towards the building thereof the people bringing in continually such great abundance of all things necessarie towards the furnishing thereof as that there was enough and much to spare So also Theodosius the thirtéenth Emperour after Constantine although otherwise a most louing and fauourable Prince towards the Church was faine to make a Law of Amortisation or Mortmaine to moderate the peoples bounty towards the Church as did also many wise Princes in other Nations vpon like occasion and in imitation of this Act of Theodosius many yeares after and among the rest diuerse Magna charta cap. â—6 W. 1. 〈◊〉 31. an 13. Eâ— 1. Princes of this Land did the like vpon the dotage of the people towards the Religious Parsone specially towards the foure Orders of Friers that were then newly sprung vp in the world But yet this Act of Theodosius was done with the great dislike of these blessed men Ierom and Ambrose who liued in those daies for that Ierom thus complaineth of that Law to Nepotian I am ashamed to saie it the Priests of Idols Stage-players Coach-men and Common Harlots are made capable of Inheritance and receiue Legacies onely Ministers of the Gospell and Monkes are barred by Lawe thus to doe and that not by persecutors but by Christian Princes neither doe I complayne of the Lawe but I am sorie wee haue deserued to haue such a Law made against vs In like manner and vpon the same occasion doth Ambrose deplore the state of the Clergie in his one and thirtieth Epistle Wee count it saith hee no iniurie in that it is a losse wee are not grieued that all sorts of men are made capable of Wils none excepted how base prophane or lauish of his life or honestie soeuer hee bee but I am sorie that the Clergie men only of all sorts of people are bard the benefit of the Law that that is common to all who notwithstanding onely pray for all and doe the common celebration of the Seruice for all So far they And yet whosoeuer lookes into this constitution whereby it was forbidden that any man should passe any Lands or other immoueable possession vnto the Church without the Princes leaue for that thereby the things that are so passed come as it were into a dead hand which holdeth surely fast that it once apprehendeth neither easily parteth with it so that it cannot without much difficultie bee reduced and brought againe to the commerce and common vse of men shall find it was rather for the benefit of the common wealth than for the dislike of the Church it was so ordered For if that course had béene holden on still the greatest part of the liuelyhood of the common wealth woule in short tune haue come vnto the Church and so Lay men should not haue béene able to haue borne the publicke burthens of the common wealth which it concerns Seculer Princes to be carefull of and to foresée that by ouermuch bountie towards the Church they impouerish not their owne state and loose the rights of Escheats Primer season and other Priuiledges of the Crowne in cases of forfaiture and specially make bare their Lay subiects vpon whom a great seruice of the common wealth doth lye And yet otherwise the beneficiallest state of this Realme vnto the Prince is the Clergie as from whom the King hath a continuall reuenew in Tenths and is déepest in Subsidie and not the least in all other extraordinarie charges according to the proportion of their place And therefore as the King is to maintaine the one so he is also to cherish the other and not to suffer their state in any sort to be diminished for that all other states are made for the seruice of the Church and the Church again for the benefit of them But this was none of those Priuiledges I spake of for these are more auncient than they and graunted out vpon better deuotion than the other but after this the zeale of Religion being almost extinguished in the Christian world partly by the great vproars and tumults that were in euery Country by the influence of one barbarous Nation or other into them who pulled downe Churches faster than euer they were built
meanes of these Priuiledges ordered in the second Lateran Councell holden in the yeare of grace 1120. that for such lands as any of the Ca. nuper Abbates de decimis said fower Priuiledged orders should acquire and get after the said generall Councell they should pay Tythes or compound for them as other men did yea though they laboured them wyth their owne hands or manured them at their owne charges Which consideration also moued Henry the fourth a king of this Realme to prouide by Statute first that such of the order of Cystertians as had purchased An. 2. H. 4. ca. 4. Bulls to be discharged of Tythes should be reduced into that state as they were before Then that no An. 7. H. 4. ca. 6. person Religious or Secular by colour of any Bulls conteyning any priuiledges to be discharged of Dismes pertayning to any Parish Church not put in execution should put the same in execution or should purchase the like in time to come Whereby it is verie probable that few of those landes which are now challenged to be frée of Tythe by the Statute of the xxxj of Henry the eight are frée of Tythes in 31. Hen. 8. cap. 13. déed for that they are no otherwise fréed by that Statute than that they were first fréed in the Religious mens hands so that if they were neuer fréed in their hands they remaine still charged with Tithes But betwéene this interruption of not paying of Tythes wrought by Innocent in the second Lateran Councell and the dissolution of Monasteries effected by Henry the viij are thrée hundred and thirty yeares and betwéene the foresaid Statute made in the seuenth yeare of Henry the fourth and the subuersion of the Monasteries brought to passe by Henry the eight as hath bin before remembred are one hundred and thirty yeares In which long distance of time the one from the other it is not to be doubted but many of those Religious houses were built and indowed which by no possible meanes could be partakers of those priuiledges which were abolished before the time of their erection neither was there any reuyuing or renewing of these priuiledges by any Pope of Rome or Prince in this Realme after they were thus first repealed by the Pope and Prince aforesaid for oght that I haue read or heard to the contrarie So that if this matter were well vnderstood and the ages and orders of those Religious persons from whom the clayme is made were rightly conceiued it would giue great light vnto the Iudges to discerne what lands were exempted from the payment of Tithes and what not for now many are pretended to bée exempted from Tythes which neuer were of any of those fower orders and if they were yet were they not before the time of the interruption but since And so far as concerning the second effect of these Priuiledges Now it followeth that I speake a word or two of compositions which are agréements betwéene persons litigant whereby eyther partie may know their owne right and not striue againe about doubtfull matters As good Lawes haue growen out of ill manners so compositions haue risen out of quarrels caused by priuiledges and other like exemption for matter of Tythe whereof although there be no speciall Treatise in the Law as there is of the rest yet they are so often mencioned by the Decretals themselues as that it is not to be doubted but that they are part of the Ecclesiasticall Law aswell as the rest are that they are the deuise of the Ecclesiasticall Lawyers and not the conceipt of the Common Lawyers the forme and stile of them doth wel shew which sauoureth wholly the maner and phrase of writing of the Ecclesiastical men hath no touch of the Common Law at all And if the deuise bee the Ecclesiastical mens as all Bishops Registers euery where do shew which are full of these compositions why should not also the totall be theirs that euery cause might haue his ending where it hath his beginning Eorum enim est legem interpretaâ—i quorum est conâ—â—râ— And these are those grieuances of the Church which I said the Schoolemens curiositie in their distinctions either inuented or gaue strength vnto them after they were inuented but inuent them all I thinke they did not for that these Acts of appropriations of benefices were somewhat more antient than the Schoolemen themselues are but the rest of the Priuiledges they either came into the world with them or insued anon after them so that I may well say they much strengthened this iniquitie For when that euery man vnderstood by their Doctrin the quotitie of Tythes or the tenth part thereof was not precisely by Gods Law since the light of the Gospell sprang out as the day light vnto the Christians who before sate in darknesse and the shadow of death but that it was by the institution of the Church onely then began they freely to spoyle the Church of her due Tythes and to giue away that to one Church that was due to another And the reason that persuadeth the Schoolmen to this was that after much adoe diuiding the whole Law of Moses into thrée parts the Morall the Iudiciall and the Ceremonial they did conclude that there were thrée parts likewise in the Tythe the one Morall which was a necessarie maintenance for the Minister and therefore was naturall and perpetual the other Iudicial which was the number of ten fit as they taught for that people onely and therefore was positiue and remotiue the last Ceremoniall and that was the mysterie contained in this quotitie or number of Ten which being but a shadow onely was abolished with the Law it selfe wherby they did infer the precise number of Ten being taken away by reason of the Ceremonie it selfe a competencie now onely doth remaine for the Minister out of the Tyths which opinion hath bin wel confuted of late by a very learned man as his Treatise therof doth well shew but I fear with lesse successe than the truth of the cause doth deserue for this is a point that toucheth many mens priuat benefit therefore shal haue no more fauor than it néeds must But the deuise whereon the Schoolmen did build this Ceremonie Thom. in quodâ—â—bet part 3. art 6. q. 6. is this that as all Digits vnder ten are vnperfect do tend to ten as to their perfectnesse so all men saue Christ alone are vnperfect haue need of Christs righteousnesse to make them perfect Which Abraham well knowing paid Tythes to Melchisedech who was the figure of Christ as therin acknowledging that himselfe al mankind who were represented by the other nine Digits were vnperfect by reason Idem part 22. q. 87. art 1. of Original sin dwelling in them therefore had néed to be perfected by Christ who was figured by the tenth number All which that we may grant to bee true betwéene Christ and all mankind as it is true indéed and
and other of like nature according to the learning of that Law but these are certain accidents ouer and beside the Tenure of the land which may be present or absent without the iniurie of the Tytle as God many times turneth floulds into wildernesse springs of water againe into drinesse a fruitful land makes he barren for the wickednesse of them that dwel therin and yet the Tytle or Tenure of the ground is not changed by these changes of qualities but remains the selfe same that it was so that these things are no more subiect to the ordering of the Common Law than it is in the Cōmon Law to iudge determine what mould is white what is black what ground will beare wheat what barley what oats for these things are no matters of skil of law that they néed to be fetcht out of bookes but they are matters of common experience which euery country man can as well skill of as the greatest Lawyer that is and therefore the Law in this case is not desirous of any curious proofe but contenteth it selfe onely with the depositions of two or thrée honest men which speak sensibly and féelingly to the point that is in hand which is enough to direct any wise Iudge in his sentence so that it néeds not these long circumstances of twelue men to teach the Iudge what and how truely the witnesses haue deposed For if euery qualitie of the ground resteth in the mouth of twelue men onely then should no man bee able to say out of the mouth of a witnesse and pronounce thereupon this ground is mountaine this is plaine this is meadowe this is errable vnlesse he were warranted by the verdit of twelue men therunto which if it be an absurditie to hold then sure it is like absurd to say that barren heath and waste cannot bee pronounced without a Iurie for that these things are like obuious to sence and like qualited as the other are And I pray you when they haue drawne it vnto their triall what doe they in effect otherwise than the Ecclesiasticall Iudge would or should haue done if it had remained stil vnder him for doe they giue credit simply to the conceit of the Iurie as touching that which hath béene declared and pleaded in the cause before them or doe not the Iudges themselues rather make a briefe of all that hath béene pleaded in the cause before them and thereof make as it were a verdit and put the same in the mouth of the twelue for their verdit before they goe from the bar So that the whole weight of the cause standeth rather in the Iudges direction in such sort as it is at the Ecclesiasticall Law than it doth in the mouth of the Iurie for the Iurie men for the most part are simple people scarce foure of the twelue vnderstand their euidence so that it may séeme rather to be a matter of supersluitie than of good policie to refer a matter to their verdit when as they say no other thing than that the Iudge taught them before Stultum enim est id facere per plura quod fieri potest per pauciora for albeit perhaps some capricious fellow of the Iurie vpon the confidence of his owne braine sometimes start aside from that which the Iudge hath told him and draw the rest of his fellowes as so many shéepe after him yet for the most part the Iudges voice is their direction their loadstone and and North pole to guid them in this businesse Besides in this Prouiso as in some other precedent there is a great disaduantage offered to the Clergie which they much complaine of and that is that in cases of this nature they are compelled to suffer triall vnder them who are as in a maner parties vnto the suit by reason of the interest they haue therein either in present or in consequence so that many now a daies learning too late by other mens harmes what the euent in theirowne cause wil be chuse rather to loose their right than to venture their cause vpon such partiall Iudges as the 12. men are And so far as concerning those prohibitions as are forced out of this Statute for naturally they grow not out thereof so that I might now passe ouer to the other branch of my diuision that is of such matters as are now held by the Common Lawyers to be in a certaine measure only of the Ecclesiasticall procéeding but were aunciently wholy of the Ecclesiasticall cognusance but that the name of the Statute De Sylua caedua offering it selfe vnto me in the conclusion of this Statute of Edward the vj. giues me occasion to speak something thereof before I come to the rest This Statute as the words thereof doe shew was made in behalfe of the Laitie against the Clergie for the exemption of great Woods of xx yéeres growth vpward from the payment of Tythes and that in three cases only where the wood was great where it was of xx yeares of age and vpward where it was sold to Marchants eyther to the profit of the owner himselfe or in ayd of the King in his warres so that without these cases it séemeth the Statute intended no further exemption for Statutes are things of strict Law and are no further to be extended than the words thereof giue matter thereunto specially when the thing it selfe naturally was lyable to ordinary course of the Law as other things of like nature are and the statute comes in derogation of their ordinary course as in this case great timber auntiently was no lesse tythable than small trées are and so by nature ought to be if the statute were not to the contrary yet notwithstanding these limitations of the same if great wood be cut down to any other vse then to sale as to build or to burne to a mans owne vse a prohibition in this case lyeth and yet is there no Identitie of reason to extend it nor any absurditie would follow if it were not extended for here is neither mony sought which gaue occasion vnto the Lawgiuers to make this statut of exemption neyther is it an vnnatural thing for to pay Tythes of great wood for before this time they were paid and by the Law of God it séemes they ought to be paied for that he that is taught ought to communicate to him that teacheth him in all things and therefore since the reason that moued the Lawgiuers to order it so in one case ceaseth in the other there is no reason of extention when there is not an Identitie of reason in the things that are in demaund there can no sound inference be brought in from the one to the other for of seuerall things there is a seuerall reason and a seuerall consequence neyther can there be framed thereof a good implication eyther positiuely or remotiuely neyther hath this interpretation of theirs any warrant of Law for it saue that it hath bin so defined and decided
his credit salued by recompence in money as the Iudge or Iurie vpon proofe of his worth and place shall esteeme it and tax it In these Actions he that sued ad publicam vindictam and had followed it so far as that he had brought it to a Recantation or a publicke disgrace could not haue recompence of his credit by money saue onely in case of commutation neither hee that had got his credit valued by money could haue a publike disgrace also inflicted for his satisfaction but what way he had chosen with that he must haue rested contented for that irèful mens wraths otherwise would neuer haue bin satisfied the prosecution of these actions otherwise wold be cōfounded These two kinds of procéedings the Princes and Sages of former ages seeme to haue sorted to the two kindes of Iurisdiction that are amongst vs the one Spirituall the other Temporall and therefore the Law of the Land it selfe saith in a cause of Diffamation when money is not demanded but a thing done for punishment of sin which is all one as when the Ciuilians say when it is done ad publicam vindictā it shall be tried in the spiritual courts wherupon by argument of cōtrary sense it followeth that where the punishment of sin is not required but amends in money is demanded there it is to be tried in the temporal Court for the law would that euery man should haue his remedy agréeable to reason in what sort him best liketh And therfore be the fault what it may be that the words of the Diffamation do sound vnto as long as it stāds but in words the party doth not take vpon him to iustifie the matter that is comprised vnder those words and doth séeke but for the punishment of the slanderous words only so long it is to be tryed at the Spirituall Law for the Law speaketh in generall in cases of Diffamation where punishment of sin only is required so that where a man is called Traitor Felon or Murtherer or any other crime belonging vnto the Cōmon Law being euery one of them words of great diffamation so the partie therein séeke punishment onely and not his priuat interest there the Spiritual Law is to hold plea thereof For where the Law doth not distinguish there neither ought we to distinguish but the Law hath said in general that causes of Diffamation whose prosecution is thus qualified doe belong vnto the triall of the spiritual Law and therfore euen those cases before remembred where the party followeth this kind of prosecution ought by that Law to belong vnto the Spirituall court as on the contrarie side Spiritual causes of Diffamation being propounded to a pecuniarie end ought to be ordered in a Temporall Court But where any man takes vpon him to iustifie the crime that he hath obiected there either Court is to hold plea of the crime that properly belongeth to that Court for that now no longer words are in question but matter is in tryal whether the partie diffamed hath indéed committed that offence that he is charged withall or no which can bee tried in no other Court than in that to which it doth properly appertaine And that this was the Course aunciently held in matters of diffamation betwéene the Ecclesiasticall and Common Law it is manifest by the Statute of 2. of Edward the 3. chapter 11. 2. Edw. 3. c. 11. where although the Statute taxeth the peruerse dealing of such as when they had béene indicted before the Sherifes in their Retorne after deliuered by Inquest before the Iustice of the Assise did sue the indictors in the Spiritual Court surmising against them that they had diffamed them and therefore in that case forbad the like suits for that Iustice thereby was hindered and many people were feared to indict Offenders yet that Statute plainly sheweth that in all other cases of Diffamation rising out of Temporall crimes beside this the Ecclesiasticall Law had the cognisaunce and that this was forbidden it was not for that that words of this nature could not be censured at the Ecclesiasticall Law when punishment of sin only is required but for that it was not fit that those things which had béene once ordered in one Court should be called againe to examination in another Court and therefore the generall procéeding in matters of Diffamation is not there prohibited but the particuler crossing of matters after iudgement is there reprehended So that that distinction I haue here before spoken of which taketh vpon it to determine when a case of Diffamation is of the Temporal cognisance when of the Ecclesiastical cannot here take place for that it is contrarie to the former Statute or Decrée that diuided these cases into Temporall or Ecclesiasticall cognisance by the varietie of the prosecution thereof and that it is contrarie to the auncient practise that hath confirmed this prosecution in either Court but specially in the Ecclesiasticall Court which hath still holden the triall of such Diffamations wherein sin hath béene onely sought to be punished vntill now of late that men haue stept ouer the bankes of their authoritie and confounded either Iurisdiction with the promiscuous acts one of another when as the Statute it selfe is plaine that the authors of this Statute or Decrée whethersoeuer you call it which set these bounds to either law in procéeding vpon matters of Diffamation respected not so much the qualitie of the crime vpon which the Diffamation grew as the manner of procéeding therein ayming in the one at publicke vindict which is to be sought out of the Ecclesiasticall law and in the other at priuat interest which is to be had out of the Temporall Law Neither is an Action of Diffamation a matter of so light esteeme or qualitie a mans fame or good name being in equal ballance with his life as that it should be drawne away to be attendant on any other action that is of smaller weight or importance than it selfe is for this is one of those Actions which for the speciall preheminence thereof are called Actiones praeindiciales that is such that draw smaller causes vnto them but themselues are drawne of none other but such as are like principal or greater than themselues are So that vnlesse the manner of procéeding bring these causes vnder the compasse of the common Law in such sort as I haue before shewed the coopling of them with another matter of the same Law will hardly bring them vnder the triall thereof For that there be few actions greater than it selfe is so that if the crime be Ecclesiasticall howsoeuer it toucheth a Temporall cause the tryall shall be still at the Ecclesiasticall Law And the same that I say of Diffamations rising out of Ecclesiasticall crimes I hold also to bee true in Diffamations springing out of Temporall crimes where punishment is required for the offence committed and amends in money is not demaunded vnlesse happely that grow of penance inioyned which the offender wil redéeme by
presumed to kéep company with an other her husband yet being aliue But if they found it otherwise then they should pronounce her the said Agatha to be legitimate All which was done after the death of the said Raph and Aneline as the Decretall it selfe shewes Neyther was there any authoritie that opposed it selfe against that procéeding but held it to be good and lawfull though it were in tearmes of speciall Bastardy for then that which they now call speciall Bastardy was not borne Besides hereby it appeareth that the Ordinaries then did not only procéed in cases of Bastardy incidently that is when a suit was before begun in the Common Law vpon a triall of inheritance that by writ from the Temporall Courts but euen originally that to prepare way vnto inheritance or any other good that was like to accrue vnto a man by succession or to auoyd any inconuenience that might keep him from promotion as may appeare by this practize following Priests in the beginning of the Raigne of Henry the 3. Constitut Othâ—n innotuit de vxovatiâ— Ã Beneficijs amouendis yet married secretly their Children were counted capable of all inheritance and other benefits that might grow vnto them by lawfull Marriage so that they were able to proue that their parents were lawfully married together by witnesses or instruments which manie Children did eyther vpon hope of some preferment that by succession or otherwise was like to come vnto them or to auoid some inconuenience that otherwise might light vpon them for the want of that proofe some their parents yet liuing others their parents being dead and the procéedings before the Ordinarie was holden good to all intents purposes euen in the Common Law for otherwise they would not haue so frequented it for as yet there was made no positiue Law against Marriages of Priests or Ministers but the Church of Rome then plotting against it for that by that they pretended the cure of Soules was neglected the substance of the Church wasted and dissipated did by Otho then Legate a Latere to Gregory the 9. order by a Constitution that all such Ministers as were married should be expelled from their Benefices that their Wiues Children should be excluded from all such liuelyhood as the Fathers had got during the time of the Marriage either by themselues or by any middle person that the same should become due vnto the Church wherein they did reséed and that their children from that time forth should be disabled to inioy holy orders vnlesse they were otherwise fauorably dispenced withall which Constitution although it wrought to that effect to barre Priests for that time of their Marriage vntill the light of the Gospell burst out and shewed that that doctrine was erronious yet to all other effects the procéeding in the case of Bastardie stood good as a thing due to be done by holy Church And therefore Linwod comming long after in his Catalogue that he maketh of Ecclesiasticall causes reciteth Legitimation for one among the rest for that in those daies there was no dispute or practise to the contrarie And thus â—ar as concerning those things wherein the Ecclesiasticall Law is hindered by the Temporall in their proceedings contrarie to Law Statute and custome aunciently obserued which was the third part of my generall diuision Now it followeth that I shew wherin the Ecclesiastical law may be relieued so both the laws know their own bounds and not one to ouerbeare the other as they doe at this day to the great veration of the subiect and the intollerable confusion of them both which is the last part of this Treatise The meanes therefore to relieue the profession of the Ciuile Law are two The first is by the restoring of those things which haue bin powerfully by the Common Law taken from them the bringing of them back againe vnto their old and wonted course The other is by allowing them the practise of such things as are grieuances in the Common wealth and fit to be reformed by some court but yet are by no home-Law prouided for The first of these stands in two things whereof the one is the right interpretation of those Lawes statutes and customes which are written and deuised in the behalfe of the Ecclesiasticall Law The other consisteth in the correcting and supplying of such Lawes and Statutes that are either superfluous or defectiue in the penning made in the behalfe as it is pretended of the Ecclesiasticall profession but yet by reason of the vnperfect penning thereof are construed for the most part against them The right interpretation of the Lawes Statutes and Customes pertaining to the practise standeth as is pretended in the Iudges mouth who notwithstanding hath that authoritie from the Soueraigne and that not to iudge according as him best liketh but according as the right of the cause doth require The supply or reforming of that which is ouerplus or defectiue is in the Parliament so notwithstanding as that the Prince euermore breatheth life into that which is done Lawes Statuts or Customes are then best interpreted whenas the verie plaine and naturall sence of them is so sought after and no forraine or strained exposition is mixt with them for that turneth Iustice into wormewood and Iudgement into gall then that the Iudge be noÌ„t to subtill in his interpretation but follow such exposition of the Laws as men of former age haue vsed to make if they be not plainly absurd and erronious for oft shifting of interpretations bréedeth great variance in mens states among such as haue busie heads much discrediteth the Law it selfe as though there were no certainty in it with which although the sage Iudges of our time cannot bee charged for oght that I know yet I cannot tell how men much complaine that lawes are far otherwise construed in these daies than they were in former ages which as it is an ordinarie complaint in the Temporall Courts so it is not without cause much lamented at in the spirituall Courts where the interpretation vpon the thrée Statutes of Tiths made by King Henry the eight and Edward his son among sundry other inconstancies of other Lawes hath such great varietie of sence and vnderstanding in sundry points thereof as that if the makers thereof were now aliue and the first expositors therof sate in place of Iudgement againe the Statutes being measured by the interpretation they now make of them would hardly acknowledge them either to bee the Statuts that they made or the other did after expound and declare for euery of these Statutes and the sence that was giuen of them was wholy for the benefit of the Church according to the tenor thereof but as they now receiue explication they are not onely not beneficiall vnto the Church but the greatest hynderance to the same that may be for the words are made to iar with the sence and the sence with the words neither is there kept any right
analogie in them and therefore the Reuerend Iudges are to be intreated because they challenge vnto themselues the opening of the statuts alone albeit peraduenture that be yet sub Iudice where the Statute of Ecclesiasticall causes is to bee interpreted that they would recall such exorbitant interpretations as haue of late gone abroad vpon these Statutes and restore them to their auncient sence and vnderstanding No man can so cunningly cloake an interpretation but another will be as cunning as he to spy it out and then the discredit will be the Lawes A small error saith Aristotle in the beginning is Lib. 1. Poliâ—iâ— a great one in the end and he that goeth out of the way a little the longer hee goeth on the further he is off from the place his voyage was to and therefore the spedier returne into the way againe is best The old Prouerbe is He that goeth plainly goeth surely which may be best verified in the exposition of the Law if any where else for commonly men offend no where more daungerously than vnder the authoritie of the Law and therefore one saith very well that There are two salts required in a Iudge the one of knowledge whereby hee may haue skill to Iudge vprightly the other of conscience whereby hee may bee willing to iudge according to that as his skill leadeth him vnto both which being in the graue Iudges it is not to bee doubted but they will bee easily induced to reuiue their owne and their predecessors interpretations and reduce such exorbitant expositions as haue scaped out thereof vnto the right and naturall sence thereof which if perhaps they shall bee loath to doe for because it makes for them or for some other like partiall respect then humble supplication is to bee made vnto his Maiestie himselfe will be pleased to giue the right sence of those things which are in controuersie betwéene both the Iurisdictions for his Maiestie by communicating his authoritie to his Iudges to expound his Lawes doth not thereby abdicate the same from himselfe but that he may assume it againe vnto him when and as often as him pleaseth Whose interpretation in that is to bee preferred before theirs first that his interpretation is impartial as hee that will not weaken his left side to make strong his right for so are these Iurisdictions as they are referred vnto his politicke bodie but will afford them equall grace and fauour that he may haue like vse of them both either in â— 1. num 8. C. 〈◊〉 L. 1. num â— C eod l omnes popuâ—â— ff de in stit iure fortaine or domesticall businesse as occasion shall serue then that his Iudges interpretation maketh right only to them betwéene whom the cause is but his highnesse exposition is a Law vnto all from which it is not lawfull for any subtect to recéed neither is reuersable by any but by himselfe vpon a second cogitation or him that hath like authoritie as himselfe hath and therefore most fit to be interposed betweene Iurisdiction and Iurisdiction that the one partie bee not Iudge against the other in his owne cause which is both absurd and dangerous And let this suffice for the right interpretation of Lawes and Statuts now it followeth that I speake something of the supplies that may be made to the defects that are in the same It is not to be doubted but it was the full minde intent of the Law-makers which made those thrée Statutes to infeoffe the Ecclesiastical Courts in the inheritance of all those causes that are comprised in those Statutes saue those that are by speciall name exempted and did by the said Statute as it were deliuer vnto them full and quiet possession of the same for euen so sundry braunches of the said Statute doe shew as I haue elswhere made it manifest and that there hath growne question vpon many points thereof and that the professors of the Ecclesiasticall law haue béene interrupted in the quiet possession thereof commeth of the vnperfect penning of the same and not of any iust title or claime that may be made by the porfessors of the other Law therunto but this is a thing not only proper to these thrée Statuts but also Common to all other Statutes which are writ of any Ecclesiasticall causes within this Land which notwithstanding may be remedied if it séem good vnto his sacred Maiestie the rest of the wisdom of the land assembled together at any time for the making of wholsome Lawes and the reforming of the same by supply of a few words in some places or periods that are defectiue and yet kéeping the true meaning and sense of the same As for example in the statute of the two and thirtieth of Henry the eight in the § wherefore néere the beginning of the same Statute the Statute ordering that all persons of this Realme and other of the Kings Dominions shall truely and effectually set out and pay all and singuler Tythes according to the lawfull customes and vsages of the Parishes where they grow and become due because there is a question made where these customes and vsages shall bee tried in the Ecclesiasticall or Temporall Law if these or the like words had beene added to the same to be prooued before an Ecclesiastical Iudge after the form of the Ecclesiastical Law not elswhere the whole matter had bin cleere for that point And whereas againe in the end of the same Statute there be some good words tending to the appropriating of these matters of Tythes and Oblations and other Ecclesiasticall duties to the Ecclesiasticall Courts as that the remedie for them shall be had in the Spirituall Court according to the ordinance of the first part of that Act and not otherwise yet because there is no penaltie to that act busie men easily make a breach thereinto for that Lawes without penalties for the most part are weake and of no force if therefore this or the like supply were made if any man sue for these or like duties in any other Court than in the Kings Ecclesiasticall Court the partie so suing to forseit the treble value of that which he sued for to be recouered in the kings Ecclesiasticall Court where it ought to haue beene commenced by the way of Libell or Articles the one halfe therof shal be to the king the other to the partie grieued many of these suits would easily be met withall Neither is it to the purpose that this is matter of mony and Lay fee that should be in this sort forfeited and therefore is not Regularly to bee sued for in the Ecclesiasticall Court yet because the cause is Ecclesiastical vpon which the matter of forfaiture ariseth it may bee verie well allowed Ne continentiae causarum diuidantur and for that ordinarily euery Iurisdiction that is wronged may defend it selfe with a penaltie beside we do by the like right in the Ecclesiasticall courts recouer expenses of suits in Law fées of Aduocats and
procters and money for redemption of sin so that it will be no strange matter to haue this kind of suit allowed vnto the Ecclesiasticall Court Further whereas there are in the Statute of Edward the sixt chapter 13. in the beginning almost of the said Statute two clauses vnder paine of for faiture one of treble value for Tythes carried away before they were diuided set out or agreed for The other of double value where the Tythes were hurt or impaired by the partie stopping or letting him that had interest therunto to carrie them away or by withdrawing or carrying them away himselfe and the same is ordered by a clause in the second braunch thereof reaching vnto them both for that a clause put in the end of two sentences streacheth it selfe indifferently vnto them both if there be no more reason it should belong to the one than the other as there is not in this case for if it were not so the first penaltie had no order set downe how it might be recouered that the same shall be recouered according to the Kings Ecclesiastical Law to which if there were added this word onely and not elswhere or otherwise and they martialed in their right places there were nothing more sure or strong Moreouer whereas in the first prouiso of that Statut it is decréed that none shall be compelled to pay any manner of Tythes for any Here ditaments which by the Laws or Statutes of this Realme or by any Priuiledge Prescription or composition Reall are not chargeable therewithall whereby it is doubtfull in what Court the said Exemptions are to be alleaged if there were inserted these words or other of like nature the said Lawes Statutes Priuiledges Prescriptions or Compositions Real to be alledged argued trauersed and determined before the Ecclesiasticall Iudge only according to the forme of the Ecclesiasticall Lawes and not elswhere vpon like for faiture of treble damages as is aforesaid it would make this point sure vnto the Ecclesiasticall Law Ouer and beside this whereas in the same statute there is a discharge allowed to barren heath wast ground in some for not paiment of tithes in other for the manner of paiment of them for the space of seauen yeares after the improuing and conuerting of them into Arrable ground or meadowe it would make the matter plaine which lawe shoulde haue the pronouncing thereupon if there were added these or the like wordes so the same ground be proued in forme of law in the Ecclesiasticall Court to be barren heath and wast Lastly wheras in the said Statut among other limitations of causes wherin the Ecclesiasticall Iudge is not to deale by vertue of the said statut there is one in these words néer the end of the said statut ne in any matter wherof the Kings Court of right ought to haue Iurisdiction which limitation is so vage large that therout there may be forged as many diuers kinds of Prohibitions as the Poets fained Vulcan euer made thunderboults for Iupiter And therfore it were very wel coÌ„sonant to the good meaning of the said statut this vagenes were restrained reduced to a more certainty of matter by these or like words By any antient law or statut of this land And so far as concerning the imperfection of the said three Statuts and how they may be amended and made reducible to the first meaning and intent of the makers therof by some smale supplie alteration or change of wordes the sence and ground-work standing euer the same according to the wisdom of his Maiestie his great counsel assembled in parliament Now it followeth I shewe wherein the practise of the Ecclesiastical Law vnder which I comprise the Ciuile Lawe so far as it is in vse among vs may be increased to the benefit of the subiect the inlargement of the profession without the preiudice of the common law And that I may first begin of the pietie of Fathers towards children children againe towards their parents which is the beginning of all common wealths for euen Nature it selfe hath taught that not only in the most brutish people that be but also setled it in the sauagest kind of beasts that are vpon the earth the one to cherish that which it selfe hath brought out and the other to loue againe that which hath brought it out and yet what Law is here in England which prouideth for the one or the other vnlesse it be the statut of the eight of Elizabeth that is but for poore folks children onely where otherwise they should be a burthen to the Parish but for the Parents themselues or other children that are cast off either by the negligence or the vnnaturalnesse of the one toward the other there is no prouision at all Yet by the Ciuile Law there is a purueiance made whereby both the Father is compelled to acknowledge his child if ff de agnoscend alendu liberis vel parentib C. de alâ—ndis liberis vel parentib ff de ventre inspiciendo custodieÌ„doque partu ff de offiâ—io proconsuâ—is l. nequic quam §. de pâ—ano there be any variance betwéene the husband and the wife vpon any Iealousie or suspicion of Adulterie if the same cannot be prooued by the womans owne confession by witnesses by the act it selfe or some other violent presumption and to norish and maintaine the same but if the fault appeare against her and it be so sentenced by the Iudge then may he as well refuse the one as the other but for other children vpon whom there is no such doubt the Parents may be constrained to maintaine cloth and féed them and to set them out a Porcion of their goods so that either the state and facultie of the Parents will beare it or the children haue not deserued to the contrarie wherefore they should not in that sort be prouided for And as the Father in this sort is bound vnto the Child so the child againe is obliged vnto his Parents to prouid for their sustenance so far forth as their abilitie will reach vnto for it is very vnnaturall the Parents should want so long as the children haue meanes to relieue them In both which cases if either the Parents refuse to admit of their Children or the Children againe refuse to yéeld comfort vnto their Parents the Iudge may interpose his authoritie and inioyne each to maintaine other according to their abilitie and as to his discretion shall séeme meet which if any of them should deny to yéeld vnto the Iudge may by Distresse of their goods taken and sold to the value thereof compell them to performe his order and yet that onely in case of Maintenance and not to discharge debts wherein either of them stand bound vnto their creditors A man here in England dying and leauing his wife Executrix shée after marrying carrieth away all his state vnto her second busband who giues spends therof as him listeth without any regard
no action to the one to sue the other but yet the ancient practise of the Ecclesiastical Law hath remedy which would redresse all this mischiefe if it were cald againe to vse might go without controlment as the equitie of the cause doth require And the remedie is this that such other of the Executors or Administrators as are in this sort interuerted from the execution of the Wil or Administration by the subtiltie of any like Executor or Administrator should craue the assistance of the Iudge will him by vertue of his office to call in such practick Executor or Administrator and to commaund him vnder paine of excommunication he procéed no further in the sole execution therof but coÌ„municat all his acts dealings with the rest of his Coexecutors or Coadministrators which if it were so ordered would make many mens Wils Administrations better performed than they are a great sort of poore Orphans states more sure certaine than coÌ„monly they are in such executors or administrators hands And certainly in this case there is some good vse of Superuisors in dead mens Wils whom many men merily iest at calling them candle-holders as though they could do nothing else in the execution therof but hold the candle while the Executors tel the Defuncts money if they might be permitted to put in practise that authoritie which the Law giueth them and that is when they find any Executor deale fraudulently in the execution of any Testators Will wherin they are named superuisors or do ingrosse all the state of the Defunct into his hands as hath bin before said they cal him to a particuler accouÌ„t that it may be séen how the administration stands ech executor may coÌ„municat to other their particuler receits disbursments which if any shal refuse to do then may the superuisor make therof coÌ„plaint vnto the Iudge as though the ff de administratione tutoruÌ„ l. 3. §. 1. same man dealt not truly in the execution therof who though perhaps in the beginning could not take bond of him for the true execution of the Will because the Testator had made choice of him therin approued his faith that no man required caution of him for any Legacie in the wil bequeathed in which case the Iudge might take bond of him for security of such legacies as are bequethed in the wil yea though his faith hath bin approued by the Ordinary as hath bin before remembred yet may the Iudge in this case if he find him iustly susspected of fraud deceit remoue him by the learning of that Law For neither the Testator himselfe if hee were aliue Instit de suspectis tutorib vel curator toto tit againe would indure him in this case but would blot his name out of his Will neither ought the Iudge to suffer him whose care is to sée that dead mens Wils take their effect according to the Testators meaning All which the law hath prouision for and for infinit things else of like good order in these cases if they might be suffered to put them in execution without impeachment And so far as concerning those things wherein the Ciuile and the Ecclesiasticall Law might be relieued without preiudice to the common Law for because they haue no practise thereof and yet doe not I bring forth these as the onely causes wherein the Ciuill and Ecclesiasticall Law may be licenced to deale in ouer and besides the practise of those things that they haue alreadie but that these are few among many other which might be sorted out if so be there were any hope for the further enlargement of the profession But now to the necessitie of the maintenance of the ciuill and Ecclesiasticall Law in this Realme as they are now practised or ought to be practised which was a thing first propounded but last put in execution in this worke Albeit that which hath béene alreadie said as concerning the Ciuile and Ecclesiasticall Law may well imply the necessarie preseruation of them both within this Land yet because it was a thing I promised to shew in the beginning of this Treatise after I had gone ouer the rest of the parts of my diuision I will in a word or two make plaine the necessitie thereof And therefore for a ground of all the rest I will assume this for a matter confessed that euery man knowes that euery well ordered Common wealth stands on two parts principally the publicke part which consisteth of the Prince and people and the Ecclesiasticall part which standeth in Sacris Sacerdotibus And therefore well said the Emperor In authent quoÌ„ oportet epÌ„os in princ col 1. Auth. de non alienand rebâ—â— Eccl. c. §. 1. Two of the greatest things that God euer gaue vnto the world meaning earthly things was the Empire or seculer gouernment whereby the outward man is ordered made as Aristole saith bonus ciuis that is a good and loyall subiect and the Priesthood whereby the inward man is ruled and is made as the said author testifieth bonus vir that is a good and vertuous man which are two wonderfull effects of the whole gouernment in general neither can the one of these be wanting but the other will bee ruinated and brought to desolation Secondly no man is ignorant of this but in politicke gouernment two things sway the whole state the one is peace at home and the other is war abroad which as they haue their seasons so they haue their causes and effects the one from councell at home the other from discipline abroad neither can the one or the other of these be maintained but by their priuate and proper Lawes Beside in peace who séeth not there is as much néed of vent by sea for to benefit the common wealth by either by importation of those things that wee want at home or by exportation of those things that we abound with as there is prouision to be made for the increasing and preseruing of those things that we haue rising and growing by land in our owne contrey neither of which can be had or inioyed without their proper lawes fit and appertaining to either policie And what Law is there that ordereth these businesses but the Ciuile law onely which giueth a forme to Nauigation and all occurrents that happen by sea whether they bee in or about the Nauigation it selfe or the contracts or as it were contracts that are made in vpon or beyond the same As a Legall forme is requisite in peace at home and Marine affaires abroad that euery thing may haue his due effect according to the right thereof so also it is necessarie in warlike exploits vpon the Sea that euery action haue his limits and bounds wherby Iustice may be ministred which if it bee to bee obserued where lawfull war is held betwéene Prince and Prince that euery one bee not left vnto his own lust much more is it expedient to be put in vre in
the Councell that reformed it and was holden vnder Alexander the third was not celebrated before the yeare of the Incarnation 1189. neither was the reformation therof at that time totall nor suitable to the first institution of Tythe among Christians For neither could many wilfull and refractarious persons be then brought to obey the Canons of the Councell in restoring any part thereof againe vnto the Church although they were charged so to doe vnder paine of damnation Neither did all such as did then restore them restore them to the Churches from whence they were taken which had béene most agréeable to the ordinance of the Church set downe by Dionysius who first diuided Parishes and assigned vnto them Tythes as hath béene aforesaid and also to the Scripture it selfe from whence Dionysius tooke his light to diuide Parishes and dispose of Tythes as hee did by which it was not lawfull for him that paid his Tythes to pay them to what Priest or Leuite Deuteron 18. him liked but hee must pay them to the Priest or Leuite that dwelt in the place where himselfe made his aboad but yet this libertie that was giuen them by the Councell then gaue cause vnto the errour that the common Lawyers hold at this day not knowing the auncient procéedings of the Church in these cases that before the Lateran Councell it was lawfull for euery man to giue his Tythes to what Church he would which was so farre otherwise as that before this violence offered vnto the Church there was a flat Canon more auncient then the fact of Charles Martellus Leo. 4. 13. q. 1. c. Eccl. which did precisely forbid any man to pay or a Bishop to giue leaue to any man to pay his Tythes from the baptismall Church to another and that the contrary was yeelded to in the Lateran Councell was not that they held it lawfull to inrich one Church in this sort with the impouerishment of another but the cause was the hardnesse of mens hearts who scarcely could bee wun by this fauour to restore that little againe vnto the Church that their forefathers had in such abundance taken away from it and that the Fathers of the said Councell did yeeld thereunto although it were an inconuenience thus to doe was for that they did count although they did admit that for the present yet there might bee a better time found out after for the reformation thereof and so sustained the inconuenience for the present vpon this reason that the vniuersall Church of Christ is one bodie and euery particular Church a part of that bodie and so it lesse mattered to what particular Church they were restored so that they were restored at all for that by the restitution to one they hoped in time they might with more likelyhoode come vnto the other for in those things wherein there is an Identitie or like representation of Nature and condition as is betwéene Church and Church is easier passage the one from the other than is in those that are of different nature and disposition as is in a lay man and a Church Out of these ruines of these violent and presumptuous prescriptions which haue now obtained strength of a statute in the world haue issued out sundry petty prescriptions which also are confirmed by law and custom as the other were as the prescription wherein one Church prescribeth Tythes against another Church the Law punishing therein the negligence of the one and rewarding the vigilancie of the other Prescriptions wherein one Ecclesiasticall body corporate or politique prescribeth Tythes or other Ecclesiasticall duties against the Parson or Vicar of the Parish and the Parson and Vicar againe against them A prescription whereby a Lay man hauing no right to prescribe Regul sine posssessionâ—d regulâ—â— iâ—ris in 6. Tythes because he can in no right possesse Tythes and prescription cannot procéed without possession doth notwithstanding by pernancie or giuing some part of his ground or pension in money in licu thereof prescribe a discharge therof A prescription wherein a lay man doth prescribe the manner of Tything which albeit by the coÌ„mon Law is counted to be good by paying a thing neuer so small in lieu thereof yet neither by the Canon Law neither by the Law of God it selfe it could euer be lesse than the iust tenth it selfe so that the manner of Tything with them is not vnderstood in that sence as the Common Lawyers doe take it by paying any thing whatsoeuer in place of the iust tenth but their intendment hereby is that no country can be bound to an vniformitie Liâ—wod Prouin quâ—â—am verbo vnâ—formâ—â— in Glo. de decim of payment of Tythes to be vsed euerywhere but euery man is to pay Tythes according to the manner of the Country where he dwels that is that one paies his Tythe corne and binds vp the same in sheaues another leaues it scattered in the furrowes another Tythes it in Cocks or Pookes and this is that that they meane that there cannot be an vniformitie of Tything prescribed to euery man after which he is of necessitie to set out his Tyths but that he may prescribe some other manner of Tything against the Parson or Vicar but against that vniformitie that the whole tythe â—â—d verbo consâ—â—tudines should not be paid was neuer any prescription allowed among them for they euermore haue beene of this minde contrary to that that the Schoolemen hold that Tythes are part of the Morall Law and not of the Iudieiall or Ceremoniall Law and that in the Precept of Tythes there is a double Ca. a nobis de decimis in Glos. consideration one of the honour of God whereby be retained tythes vnto himselfe in signe of his vniuersall Lordship ouer the whole world which is irremissable the other of the profit or vtilitie of man in that it concerns the prouision of the Minister in all ages which is vndispensable And yet notwithstanding all this the Ecclesiasticall Iudge admitteth all kinds of prescription beforenamed and according to the proofes thercon brought giueth sentence either to absolution or condemnation albeit the reuerent Iudges of the Land vpon an erronious report made in the eight yeare of Edward the fourth haue a conceipt to the contrarie viz. That no Ecclesiasticall Iudge will admit any Plea in discharge of Tythe or the manner of Tything as it is in their sence taken and therfore they hold whatsoeuer the defendant doth alledge in his suit for a consultation and namely that the Ecclesiasticall Iudge did allow of the Plaintifes Plea and allegation and did admit him to the proofes thereon without deniall are idle speeches and rather words of course than of effect and substance And therefore notwithstanding whatsoeuer is alledged by the Defendant as concerning the Ecclesiasticall Iudges well acceptance thereof it is counted nothing materiall by the Temporall Iudges for that they haue a preiudicate opinion of the Ecclesiasticall Iudge in these cases and therefore
point what things it alloweth may be sold without the decrée of the Iudge what not I wil set downe the words of the Law it selfe speaking of Tutors gouernors of Puples whose place Executors Administrators do supply so far forth as they haue the tuition gouernaÌ„ce of minors during their vnderage C. de administrat tuto â—m vel curatoruÌ„ l. lex quâ— faithfully translated And it is a law of Constantin the great reprouing a former law of Seuerus the Emperor which gaue leaue to Tutors and Curators to sell away al the gold siluer precious stone apparrell and other rich moueables the Testator had and to bring the same into money which turned greatly to the hinderance of many Orphans whereupon Constantine after he had first ordered nothing should bee sold of the pearl precious stone naperie vtensels of the house and other necessarie stuffe and ornaments of the same saith thus Neither shall it be lawfull for them meaning the Tutors or Curators to sell the house wherein the Father died and the child grew vp wherein it is woe enough to the child not to sée his auncestors images not fastened vp or els puld downe Therefore let the house and all other his moueable goods still remaine in the Patrimonie of the child neither let any edifices or buildings which came in good reparation with the inheritance ruine or decay by collusion of the Tutor but rather if the Father or he whosoeuer the minor was heire vnto left any building in decay let the Tutor both by the Testimonie of the worke it selfe and the faith of many be compelled to repaire it for so the yearely rent will bring in more profit to the Minor than the price of the things being deceiptfully sold vnder-foot will doe the Minor any good Neither doth this law only make prouision against Tutors but also against immodest and intemperate women which many times gage vnto their new married husbands not only their owne state but euen the state and liues of their children Further it crosseth the course of putting the childrens money to vsurie notwithstanding aunciently it was thought therein consisted all the strength of the Patrimonie for that course is seldome long scarcely continuall and stable and that therby many times the money being lost the childrens state come to nothing and therfore his conclusion is The Tutor should sell nothing without the order of the Iudge sauing the Testators ouerworne apparrell or those things which by kéeping could not be kept from corruption and such cattell as were superfluous Whereby it appeareth how carefull that age was to giue way to Executors by sale of the Testators goods to make gaine of the Orphans neither is this age better than that but that which was feared then may be prouided for now by like authoritie as was then In this Land a man dying leauing Legacies to his children and his wife Executrix or dying intestate and she taking administration and in her second marriage bringing all her first husbands state her childrens portions vnto her second husband and then dying there is no remedie against the second husband to recouer the said Legacies or porcions due vnto the children out of his hands because he is neither Executor nor Administrator and that he came not to those goods by wrong but by the deliuerie of the Executrix with whom he married but yet by the Ciuill Law there is and L. si me ff de rebus creditis si certum petatur that by this claime that the said goods came vnto his hands and that it is no reason any should be made rich by my goods against my wil for Legataries haue no action against any as Administrators in their owne wrong or hinderers of the performance of the last Wil of the deceased but Executors only they then alone when the party hauing it holds it by wrong and not by Lawful deliuerie which in this case is otherwise By the Law of this Land there is no prouision to preserue the state of a prodigall person from spoile which neither hath regard of time nor end of spending vnlesse the Father prouide for this mischiefe in his Will or by some other good order in his life but he is suffered to wast and spend his goods vntill there be nothing left as though the Prince and Common wealth had no interest in such a subiect to sée he did not waste his state and abuse his goods whereby many great houses are ouerthrowne and many children whom the Fathers carefully prouided for neuer leauing raking and scraping all their life time that their children after them might liue in great plentie and abundance come to great shame and beggerie But the Ciuill Law hath remedie for it for the ff de euratoriâ— furioso aliâ—â— extra minoreâ— dando Law counting such a man that is in this sort impotent in his déeds howsoeuer he be otherwise sensible in his words to be halfe mad and to be a young man in his manners how old soeuer otherwise he be in his yeares sets a Curator ouer him for the preseruing well ordering of their state no otherwise than if they were children or mad men indéed who so long haue power ouer them their goods vntil they come to sane maners to which if they once return the curators office ceaseth The like they doe to a widow or sole woman which liueth riotously hauing neither regard of her fame nor of her state L. et mulieri ff eod I find an old practise aunciently vsed in the Ecclesiasticall courts for restraining Executors or Administrators for dealing couenously alone in an Executorship or Administratorship when there are more Executors named in a Will than one or more Administrators deputed by the Ordinarie in an Administration than one which were well if it were recald brought back to his former vse againe For now as things stand many times one capricious fellow named an Executor in a Wil or appointed Administrator by the Ordinary with some other wel meaning men getting a start in this businesse of the rest ingrosseth all into his owne hands and without priuitie or concurrence of the other selleth releaseth disposeth all at his owne pleasure contrarie to the mind either of the Testator or the Ordinarie who would not haue named so many in the Wil or Administration but to the intent that all might or should execute and administer one communicate their acts with another The contrarie whereof is many times very preiudiciall and hurtfull to those that are to take benefit by the said Wil or Administration who for the want of the due performance of this kind of procéeding are defrauded of all that which in right or reason should haue come vnto them either by the Testators good-will or by the benefit of the Law And yet there is no remedie for this in law so far as I know for that al these making but one person in law the Law yéelds