the rest of the matters that belong to the triall of the Ecclesiasticall Courts some are acknowledged to be absolutely in vse some other are challenged to be but in a certein measure in vse In absolute vse are those which neuer had any opposition against them which almost are those alone which belong to the Bishops degrée or order for all things which come within the compasse of the Ecclesiasticall Law are either belonging to the Bishops degrée or his Iurisdiction To his degrée or order belong the ordering of Ministers and Deacons the confirmation of Children the dedication of Churches and Churchyards and such like none of which haue béen challenged at any time to belong to any other Law The second sort is of them that belong to the Bishops iurisdiction which is partly voluntarie partly litigious Voluntarie is when those with whom the dealing is stand not against it but litigious it is when it is oppugned by the one part or the other Of this latter sort many things in sundry ages haue bin cald in question but yet rescued and recouered againe by the wise graue Iudges themselues who haue found the challenge of them to be vniust But what doth belong to either of them in priuat or what causes do appertaine to the whole Iurisdiction in generall because they haue bin alreadie particulerly set downe by that famous man of worthy memory Doctor Cosin in his learned Apologie for certaine Cos in in his Apologie part 1. c. 2. procéedings in Ecclesiasticall Courts I will not make a new catalogue of them but send the Reader for the knowledge thereof vnto his Booke but yet in my passage will I note which of them haue bin most chiefly oppugned and as occasion shall fall out speak to them And thus much as concerning those parts of the Ecclesiasticall Law which are here in vse with vs Now it followeth to shew whereby the exercise of that Iurisdiction which is granted to be of the Ciuile and Ecclesiasticall cognizance is defeated impeached by the Common Law of this Land which is the third part of this Diuision The impeachment therefore is by one of these meanes by Praemunire by Prohibition by Iniunction by Supersedeas by Indicauit or Quare impedit but because the fower last are nothing so frequent nor so harmfull as the others and that this Booke would grow into a huge volume if I should prosecute them all I will only treat of the two first and put ouer the rest vnto some better opportunitie A Praemunire therefore is a writ awarded out of the kings Bench against one who hath procured out any Bull or like processe of the Pope from Rome or elsewhere for any Ecclesiasticall place or preferment within this Realme or doth sue in any forteine Ecclesiasticall Court to defeat or impeach any Iudgement giuen in the Kings Court whereby the bodie of the offender is to be imprysoned during the Kings pleasure his goods forfeyted and his lands seized into the Kings hand so long as the offender liueth This writ was much in vse during the time the Bishop of Romes aucthoritie was in credit in this land and very necessary it was it should be so for being then two like principal authorities acknowledged within this Land the Spirituall in the Pope and the Temporall in the King the Spirituall 25. Edw. 2. 27. Edw. 3. ca. 1. 38 Edw. 3. ca. 1. 2. 7. Rich. 2. ca. 12. 13. Rich. 2. ca. 2. 2. H. 4. cap. 3. grew on so fast on the temporal that it was to be feared had not these statutes bin prouided to restraine the Popes interprises the spirituall Iurisdiction had deuoured vp the temporall as the temporall now on the contrary side hath almost swallowed vp the spiritual But since the forreine authoritie in Spirituall matters is abolished and eyther Iurisdiction is agnised to be setled wholy and only in the Prince of this land sundry wise mens opinion is there can lye no Praemunire by those Statutes at this day against any man exercising any subordinat Iurisdiction vnder the King whether the same be in the kings name or in his name who hath the same immediatly from the King for that now all Iurisdiction whether it be Temporall or Ecclesiasticall is the Kings and such Ecclesiasticall Lawes as now are in force are called the Kings Ecclesiasticall Lawes and the Kings Ecclesiasticall Courts For that the King cannot haue in himselfe a contrarietie of Iurisdiction fighting one against the other as it was in the case betwéene himselfe and the Pope although he may haue diuersitie of Iurisdiction within himselfe which for order sake and for auoyding of confusion in gouernment he may restraine to certeine seuerall kinds of causes and inflict punishment vpon those that shall go beyond the bounds or limits that are prescribed them but to take them as enemies or vnderminers of his state he can not for the question here is not who is head of the cause or Iurisdiction in controuersie but who is to hold plea thereof or exercise the Iurisdiction vnder that head the Ecclesiasticall or temporall Iudge Neyther is that to moue any man that the Statutes made in former time against such Prouisors which vexed the King and people of this land with such vniust suits doe not onely prouide against such processe as came from Rome but against all others that came elsewhere being like conditioned as they for that it was not the meaning of those Statutes or any of them thereby to taxe the Bishops Courts or any Consistory within this land for that none of them euer vsed such malepert sawsinesse against the King as to call the Iudgements of his Courts into question although they went far in strayning vpon those things and causes which were held to be of the Kings Temporall cognisance as may appeare by the Kings Prohibition thereon framed And beside the Archbishops Bishops and other Prelats of this Land in the greatest heat of all this businesse being then present in the Parliament whith the rest of the Nobilitie disauowed the Popes insolencie toward the King in this behalfe and assured him they would ought to stand with his Maiestie against the Pope in these and all other cases touching his Crowne and Regalitie as they were bound by their allegeance so that they being not guilty of these enterprises against the King but in as great a measure troubled in theyr owne Iurisdiction by the Pope as the King himselfe was in the right of his Crowne as may apppeare out of the course of the said Statutes The word Elsewhere can in no right sence be vnderstood of them or their Consistories although some of late time thinking all is good seruice to the Realme that is done for the aduancement of the Common Law and depressing of the Ciuill Law haue so interpreted it but wythout ground or warrant of the Statutes themselues who whollie make prouision against forreine authoritie and speak no word of domesticall proceedings But
A VIEW OF THE CIVILE AND ECCLESIASTICAL LAW AND wherein the practise of them is streitned and may be relieued within this Land Written by THOMAS RIDLEY Doctor of the Ciuile Law Iura sua vnicuique professioni sunt seruanda alioqui nihil aliud erit quà m omnium ordinum confusio c. peruenit 11. q. 1. LONDON Printed for the Company of Stationers Anno. 1607. To the High and Mightie Prince IAMES by the grace of God King of great Britaine Fraunce and Ireland Defender of the Faith c. MOST gratious Soueraigne since it hath pleased your Maiestie of your Princely care towards the Church and your common wealth to take knowledge of some differences that are in Iudicature betweene your Ecclesiasticall and Ciuile Law and the Temporall Law of this Land by which ioyntly your Maiesties State is managed next after your owne most rare prouidence and the wisdom of such whom it hath pleased your Highnesse to associat vnto your selfe in the great affaires of your Kingdome I haue bin bold to offer vnto your Maiestie this simple Treatise as that which doth lay out the cause of those Differences more particulerly than any man hitherto hath expressed the same In comming to which because I doe speake for those parts of your Maiesties Laws which are lesse knowen vnto your people and esteemed no otherwise of them than they see the practise thereof to be here within your Land I haue thought good as it were in a briefe to set out the whole sum of both the Lawes to the view of the people that they may see there is more worth in those for whom I speake than was by many conceiued to be so that the profession of the Ecclesiasticall and Ciuile Law may appeare to the world neither to be ilde nor vnfit for the State so far as it hath pleased the Royall predecessors of your Highnesse to giue entertainment vnto it and your Maiestie your selfe to admit of it In al which there is no other thing sought than that such grieuances as haue bin of late offered by one Iurisdiction vnto the other and in consequence to all your subiects who follow any suits in the Ciuile or Ecclesiasticall Courts may by your Princely wisdome be considered and by your authoritie be redressed if they be found to be grieuances indeed for now as things are neither Iurisdiction knowes their owne bounds but one snatcheth from the other in maner as in a batable ground lying betweene two Kingdomes but so that the weaker euer goeth to the worse and that which is mightier preuailes against the other the professors thereof being rather willing to giue Lawes and interpretations to other than to take or admit of any against themselues For which the weaker appeales vnto your Highnesse humbly desiring your Maiesties vpright and sincere Iudgement to discerne where the wrong is and to redresse it accordingly which is a worke worthy your Maiesties high consideration For as the Land is yours so also the Sea is yours the Church is vnder your Highnesse protection as a child is vnder his Tutor so that all the Lawes therof appertaine vnto your Maiesties care and comfort alike For which not onely the whole profession of your Ecclesiasticall and Ciuile Lawyers that now are but those which shall succeed in those places for euer hereafter vnto the worlds end will praise and magnifie your Maiesties gratious fauour towards them and wee that now are will pray to God for the long and happie prosperitie of your Highnesse and your posteritie ouer vs during the continuance of this Heauen and this Earth and after the passing away therof a perpetual fruition of the new Heauen and the new Earth wherein righteousnesse onely shall dwell for euer Your Maiesties most humble and dutifull Subiect Thomas Ridley To the Reader GENTLE Reader I confesse as I meditated this Treatise vpon mine owne motion as I doe sometimes matters of other argument when my leasure serues me thereto so also I doe not set it out to the view of the world vpon mine owne motion but was desirous it should haue bin keept in sauing that I must obey where I am bound The thing that gaue me cause to this meditation was that I saw many times how meanly men esteemed of the Ciuile and Ecclesiasticall Law of this Land valuing them by the practise of so much of them as we haue among vs. And therefore I thought good although not wholy to vnfold the riches of them yet to make shew of them folded vp in such sort as Mercers make shew of their silkes and veluets laid vp in whole peeces in their shops whereby it may be seene what great varietie they haue of all these kind of wares although the goodnesse of the ware it selfe cannot be discerned because it is foulded vp Beside seeing how frequēt prohibitions are in these daies in causes of either cognisance more than haue bin in former time I thought it not vnworthy my labour to inquire and see vpon what iust grounds they are raised vp in this multitude not of any humour I haue to gaine say the lawfull proceedings of any court which I reuerēce most readily acknowledge their authoritie in all things belonging to their place but to know and search out the truth of those suggestions that giue cause vnto these prohibitions For whenas such Lawes as are written of these businesses are written indifferently as well for the one Iurisdiction as the other no man is to be offended if the one Iurisdiction finding it selfe pressed by the partial interpretation as it supposeth of the other inquire the groūd of such interpretation labour to redresse it if it may be by the right interpretation therof To the end that either Iurisdiction may reteine their owne right not the one be ouertopt by the other as it seemeth to be at this day And that in such matters as they cōceiue of their owne right as depend of no other authoritie but of the Prince alone which is the thing only that is sought in this little Treatise And therfore the Reuerend Iudges of this Land are to be intreated that they will vouchsafe an equal interpretation of these matters as well to the one Iurisdiction as the other for so it is comely for them to doe and if they doe it not the other are not so dull senced but they can perceiue it nor so daunted but that they can fly for succour vnto him to whose high place and wisdome the deciding of these differences doth of right appertaine PENELOPE is said to haue had many wooers comely in person and eloquent in speech but she respected none but her owne VLISSES Such should be the mind of a Iudge that whatsoeuer other apparance or shew of truth be offered one saying this is the true sence of the Law and another that yet the Iudge should respect none but the very true germane and genuine sence thereof indeed Which if it were religiously or indifferently obserued in euery
miscarie Such as kéepe brothell and baudy houses or other vnlawful company Iuglers and such as carie about Snakes and other like Serpents and trumperie to put men in feare Such as hide and suppresse Corne to cause the price to be dearer Such as eyther make or vse false waights wittingly for all which because there is no proper punishment prouided in the Law they are referred to the punishment of the Iudge who is to punish them according to the qualitie of the fact age and vnderstanding of the offender and other circumstances according as he shall thinke good so notwithstanding that he excéed not a conuenient measure therein neither stretch the same to death but vpon some great and weightie cause he is to be content with meaner punishmēt as temporall banishment whipping or some moderat pecuniarie mulct For violating or defacing another mans sepulcher Infamy was imposed besides a pecuniarie mulct to be diuided betwéene the Prince and the partie grieued but if any dig vp the corse of the deceased the punishment is death If any by feare of his office or authoritie wring any money from any man or exact more fées in any matter than hee ought to doe or cause him to marry or doe any other thing he would not doe the forfeiture is foure double the value of that which hath béene taken beside further punishment at the discretion of the Iudge Such as driue mens cattell out of their ground or seuer them from the flock or heard with intent to steale them if they doe it with a weapon like vnto a Robber are condemned to bee throwne to wild beasts otherwise are more lightly punished according to the discretion of the Iudge Such as in Iudgement take money on both sides or taking vpon them the defence of one side betray the cause and take money on the other side are infamous by law and are punished at the discretion of the Iudge Such as receiue théeues and other like malefactors are punished in like sort as the théeues or malefactors themselues are specially if they haue assisted them in their wickednesse otherwise if they onely knew it and receiued them they are more mildly to be punished specially if the offenders were their kinsmen for their offence is not like theirs which entertaine those which are no kin vnto them at all when as it is naturall for euery one to regard his own blood and fathers are many times more carefull for their children then for themselues but if that hee that receiued them knew nothing of the offence then is hee altogether to be excused Such as breake prison are to bee punished by death because it is a certaine treason to breake the Princes ward but if they scape by the negligence of the Kéepers against whom the presumption lyeth euer in this case they are more lightly to be punished If any commit Burglarie breaking vp a dore or wall with intent to doe a Robberie if they be base companions they are to bee condemned to the Mines or Gallies but if they be of better reckoning they are to be put from the ranke or order wherein they are or to be banished for a season Iuglers and like Impostors which goe about deceiuing of the people with false tricks and toies hookes and such like which insinuat themselues into other mens houses with purpose to steale are punished at the discretion of the Iudge If any steale or take away any thing out of the inheritance of another man before either the Will be prooued or adminstration be taken an action of theft lyeth not because the inheritance during the time was counted no bodies but hee is to be punished by the discretion of the Iudge yea though it were the heire himselfe that did it Cosenage whereby a man craftily suppresseth something he should not or putteth one thing in anothers place to the deceit of him that he dealeth withall or corrupteth such wares which hee vttereth or doth any other thing collusorily which is called of the Law Crimen Stellionatus of a little vermin or creature called Stellio much like to a Lisard most enuious to man is censured by some ignominious and shamfull punishment or by disgracing the person by putting him out of the Office Place or Order he is in or by inioyning him some seruile worke or by banishing him for a time or by some like punishment at the discretion of the Iudge If any plough vp a Mere balke or remooue any other marke which hath accustomed to bee a Marke or bound betwéene ground and grounds which aunciently was counted reuerend and religious among men the offence is punished either by a pecuniarie mulct or by banishment or whipping at the discretion of the Iudge Vnlawfull Colledges Corporations and assemblies gathered together to bad vses as to eating drinking wantonnesse heresie conspiracie as punished are publike Routs or Riots otherwise at the discretion of the Iudge All these before recited are called Populer Actions because not only he that is iniured but euery other honest subiect may peruse and prosecute the same Publick Iudgements are such which immediatly pertain to the punishment of the common wealth for example sake and are examined tried and punished by a publicke order appointed by Law the partie grieued making himselfe partie to the suite and following the same the partie accused in the meane while remaining in prison or putting in suerties for his apparance and the partie grieued for the prosecuting of the same The chiefest of which sort is Treason which is a diminishing or derogation of the Maiestie of the people or Prince on whom the people haue collated all their power which is punished with death and confiscation of the Lands and goods of the offender and the eternall abolishment of his memorie The next is Adultery which is violating of another mans bed whose punishment aunciently was death both in the man and in the woman but after it was mitigated in the woman she being first whipt and then shut vp in a Monasterie but by the Canons other paines are inflicted Vnder Adulterie are contained Incest Sodomy Baudery and all the rest of the sins of that kind Publicke force is that which is done by a company of armed men collected together and the correction thereof is perpetuall banishment Priuat which is done without Arms the paine thereof is the losse of halfe the parties goods and the infamie of his name Murtherers and Poysoners Witches and Sorcerers the crime being proued dye the death such as set mens houses a fire are to be consumed with fire themselues such as Kill either Father or Mother or those that are in the place of Father or Mother or any that are of next a kin their punishment is death and in case of the Father and Mother beside the paine of death the Parricide being first well whipt so that the blood doe follow in good plenty being sowed vp into a sacke together with a Dong a Cock and an Ape hee is throwne into
Penalties That such sentences that are giuen against the Exchequer may be retracted within thrée yeare following although ordinarily all other Sentences are irreuocable after ten daies neither can be reformed after that time either by rescript of the Prince or by pretence of new proofe Of the goods of such as exchet by reason they haue made no Will and of the goods of Incorporations that is of such as dye without Heires that they come not to the common banke of the citie but that they exchet vnto the Prince Of Promotors by whose information any goods are confiscate either by reason of the goods themselues as that they are adulterine or that they are prohibited to be exported or imported or vpon some other like cause or by reason of the persons that haue offended and crimes wherein they haue offended and their punishment if they giue in any wrong information or other then such as they are bound vnto by vertue of their Office and that they giue no information in but by aduise of the Attorney of the Exchequer and that they make no information against their Lord and Master but in case of Treason that it shall be lawfull for no man to make suite vnto the Prince for those things that are confiscated vnto the Exchequer as though it were more Honorable for the Prince to bestow such things on his Courtiers then to kéepe them to himselfe and therefore such as are the Princes Secretaries his Masters of Requests and others that are of his remembrance are forbidden to make any Acts Instruments or other writings hereof vnlesse the Prince of his owne motion and at no other mans suite will or commaund the same Of such as put themselues into the Exchequer vpon any confession made against themselues Of such to whom the Prince ioyntly hath giuen any farme or like thing that where one of them dyeth without an heire the other may succéed him Of Treasure found that the Exchequer be made acquainted with it and that if it bee found in a publicke place halfe goeth to the Exchequer the other to the finder but if it bee in a priuat place then halfe to the Lord of the soyle and the other to the Finder Of prouision for Corne and such other like Of Tribute which was an ordinarie payment Of imposition and super-impositions which were paiments laid vpon the subiect aboue ordinarie tax for some present necessitie to which charges the ordinarie tax doth not suffice which was not to bee done but vpon great and vrgent cause by a councell called together and with the consent of the subiect Of Collectors of the Subsidie and in what manner they are to bee collected and brought into the Exchequer and of the punishment of those that in the collection thereof extort more than is due that it shall bee lawfull to distraine for Tribute vnpaid that such acquitances as the Exchequer shall deliuer vnto the accomptants shall bee their full and finall discharge and that the Subsidie Bookes shall euery quarter bee sent vp into the Exchequer with the account of the Collectors that thereby it may appeare how much euery man hath paid or oweth vnto the Exchequer and that nothing may bée doone for the grieuance of the poore or the fauour of the rich Of the booke of accounts of yéerely gifts that commonly Subiects present vnto the Prince at New yeares tide and otherwise and that they bee diuided from the accounts of the Exchequer That no man bee fréed from the payment of Tribute Of spending out such ancient graine and other like prouision as is laid vp in the common store-house and making prouision for a new and compelling the subiects such as haue plentie of such graine if it happen to bee vinoed and mustie to buy the same that the whole losse thereof may not lye vpon the Exchequer What pension such Mannors as the Prince hath giuen or released from payment of Subsidies shall giue and that no man bee so hardy to beg such a matter of the Prince lest the reuenews of the Exchequer be thereby diminished Of Mannors that haue béene translated from the payment of one kind of prouision to another or that haue béene in their taxation ouer rated Of Brasse that Minerall Countries are to yéeld or money in lieu thereof Of Controllers whose Office it was to cast ouer againe such accompts as were brought into the Exchequer or to examine them a new least perhaps there might bee an errour in them And so far as concerning those things which doe appertaine to the accompt of the Exchequer or the patrimony thereof or such pensions or payments as are due vnto the same Now followeth the other part of this tenth Booke which containeth the burthens duties or offices imposed on the subiect by the Exchequer and what excuse the subiect might alleage in this behalfe Burthens or dueties were either personall as places of Honour which were not to be continued from the father to the child or they be Patrimoniall which are charged vpon mens inheritance either for the good of the common wealth or to inrich the Exchequer against dangers that are like to insue which are vndertooke and performed either by those which are of necessitie to obey that which is inioyned them or by those which offer themselues voluntarily therto which seldom happeneth in patrimonial charges but in matters of Honour and Personall seruices it many times commeth to passe that men excuse not themselues from bearing of Offices or doing of Personall seruices although they haue an immunitie from them either by the graunt of the Prince which is to be vnderstood of extraordinarie seruice only and not of ordinarie or by the benefit of the Law for by the law men are many times vpon iust causes excused from Personall seruices so it be not from such seruices as no man can excuse himselfe from such as are Postings and carriages when the Prince passeth by or the Tenure of his Inheritance doe so require it and the erecting and repairing of Bridges Waies and Wals the prouision and carriage of Corne and other like kindes necessarie for the maintenance of the Princes house Men are excused either generally from all kinds of seruices or particularly from some as all Minors specially such as are Students in any famous Vniuersitie whilest they giue themselues there vnto their booke are excused fron all Personall seruices but not from Patrimoniall seruices as also all old men of the age of seauentie yeares and vpward all professors of Liberall Sciences whereby the common wealth is benefited all professors of Phisick Grammer Oratorie or Philosophie so they bee allowed by the Magistrate and seauen skilfull men in the profession which they make shew of and bee not Supernumerarii or aboue the number of those that are to be allowed in which number are neither Poets or Auditors they are also excused which vpon iust cause are dismissed either out of the Army or out of the Schooles either for lack 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
but what is that to the purpose if it hath bin wrested and wronged contrary to the true sence of the Statute and that by those that take benefit thereby whose partiality being taken away the thing it selfe would easily turne againe to his owne nature and right would take place The reason they yéeld for the exemption of great woods of the ages aforesaid although to themselues it be plausible yet to others it is strange as namely that great Trées are Plowd in Soby contra Molyns part of the Fréehold and that men vse not to pay Tythes of their fréehold but of those things which spring out of their fréehold as out of Corne grasse fruit such other whereas in déed the tallest Timber tree that is if it were as high as the highest Cedar in Lebanon is no more part of the inheritance or fréehold than the lowest bramble that groweth in the field for they are both equally part of the ground wherin they grow and do take a like norishment and sustenance from the same neyther doe they differ in that they are trées the one from the other secundum magis et minus as the Logitians say but in that the one is a great trée and the other a small shrub and the cause of this prouision here in England for these great trées was not for that one was more of the inheritance than the other but for that the one yéeldeth more profit to the common wealth than the other therefore they haue made the cutting down of the one more penal than the other as in like case by the Ciuile Law who so priuily cutteth downe or barketh a vine an oliue or a fig trée ff Arborum furtim caesarum toto tit or doth any other vnlawfull act whereby any fruitfull trée or any Timber trée doth perish and decay it is Theft and it is punished in the double value of the hurt which is done and if he be tenant to the ground which hath done this villanie he loseth his hold which commeth not of that that one kind of Trée hath more state in the ground than an other hath but that the Law hath respected the necessarie vse of the one more than the other By the Ciuile Law although this word Wood be generall L. Ligni appollatione de Lâ—g 3 L. Carbonum ff de verb. significat yet it is thus distinguished that some is wood some is Timber which the Law cals Materia Timber is that which is fit to build or vnderprop withall Wood is whatsoeuer is prouided for fewell so that vnder that name there passeth Réed Coale Turfe Cow dung and whatsoeuer L. ligni appellatione § Ofilâ—us §. idem ff de legat 3. is any where ordinarily vsed for fewell Tymber is of a higher consideration than wood is insomuch as if a man bequeath vnto an other all his wood that is in groue field there shall not passe by this legacie such Trées as are cut downe for timber but if they were dotterd Trees or the owner thereof purposed them for fewell and so cut them out into billet or fagot in such sort as there could be no other vse thereof than to burne then it is otherwise for by this meanes of great wood it is become small wood as being cut out in shides or splinters fit for to burne So that in the reckoning of the Ciuile Law tymber stands not onely in the nature of the wood it selfe but is in the destination and purpose of the owner who according to his good lyking may make that wood which is fit for timber fier wood or tymber which if it were so in account with the great Lawyers of this land the Church should haue more Tythes of Wood appointed for fewell and lesâ—e suite for the same As they exempt the bodies of great Trées aboue xx yeares Plowd vt supÌ„ growth from payment of Tythes so also they frée the boughes thereof vpon this reason that the boughes thereof are fit and seruiceable for buylding which although haply may be in some of them that are next to the Trunck of the trée yet it is far otherwise in those that are more remote from the same whereof there can be no other vse than to burne and therefore the Law precisely holds in case where wood is bequeathed by which is meant fier wood only vnlesse the Testator otherwise expresse his mind the lops of timber L. Ligni appellatione §. Ofiliâ—â— de Leg. 3. trées which the Law cals Superamenta materiarum are bequeathed for that the lops haue not that vse that the Timber hath that is to buyld or prop vp withall but they serue to burne onely by which seuerall ends there is seuerall consideration and accompt made of them Neyther is it to the purpose that they alleage for the defence hereof that the accessorie followeth the nature of the principall for that rule is not true in euery accessarie but onely in such in whom is the like reason as is in the principall which in the trunk L. â—tsi C. de Praedijs minoruÌ„ and lop of a trée cannot be alike for buylding Further how the Boughes of a tree that are of the same substance as the bodie of the trée is should be accessaries to the trée I sée not for nothing can be an accessarie to an other that is of the same nature and substance as the other is as the leg or hand are no accessaries to the bodie for that the leg or hand are of the same substance that the bodie is The Child neyther while it is in the Mothers wombe neyther after it is borne is an accessarie to the Mother for L. 1. ff de ventre inspiciendo while it is in the Mothers wombe it is part of her wombe and after it is seuered from her wombe it is a man or woman like principall as her selfe is But that which is an accessarie to an other must be of an other nature than the principall is so in naturall lyuing creatures haire hoofes hornes and finnes and such other like excrements are accessaries to the creature whose they are for that they are of a far different nature from the bodies out of which they come and so in other naturall things not lyuing as the Earth it selfe is the trées grasse and fruit that spring out of the same are accessaries thereto Further in Ciuile matters expences and executions are accessaries to the causes out of which they rise and in Marriages Dowries and L. doâ—is ff de iure doâ—ium Iointures are counted accessaries to them for that wythout Marriage neyther ioynture nor dowrie can stand Vsurie is said to be an accessarie to the principall not in respect that the proper subiect of eyther of them is Money and so there is one substance or nature of them both but in regard of the dependencie the one hath of thother for he that will make challenge to Vsurie must first proue there
his credit salued by recompence in money as the Iudge or Iurie vpon proofe of his worth and place shall esteeme it and tax it In these Actions he that sued ad publicam vindictam and had followed it so far as that he had brought it to a Recantation or a publicke disgrace could not haue recompence of his credit by money saue onely in case of commutation neither hee that had got his credit valued by money could haue a publike disgrace also inflicted for his satisfaction but what way he had chosen with that he must haue rested contented for that irèful mens wraths otherwise would neuer haue bin satisfied the prosecution of these actions otherwise wold be cōfounded These two kinds of procéedings the Princes and Sages of former ages seeme to haue sorted to the two kindes of Iurisdiction that are amongst vs the one Spirituall the other Temporall and therefore the Law of the Land it selfe saith in a cause of Diffamation when money is not demanded but a thing done for punishment of sin which is all one as when the Ciuilians say when it is done ad publicam vindictā it shall be tried in the spiritual courts wherupon by argument of cōtrary sense it followeth that where the punishment of sin is not required but amends in money is demanded there it is to be tried in the temporal Court for the law would that euery man should haue his remedy agréeable to reason in what sort him best liketh And therfore be the fault what it may be that the words of the Diffamation do sound vnto as long as it stāds but in words the party doth not take vpon him to iustifie the matter that is comprised vnder those words and doth séeke but for the punishment of the slanderous words only so long it is to be tryed at the Spirituall Law for the Law speaketh in generall in cases of Diffamation where punishment of sin only is required so that where a man is called Traitor Felon or Murtherer or any other crime belonging vnto the Cōmon Law being euery one of them words of great diffamation so the partie therein séeke punishment onely and not his priuat interest there the Spiritual Law is to hold plea thereof For where the Law doth not distinguish there neither ought we to distinguish but the Law hath said in general that causes of Diffamation whose prosecution is thus qualified doe belong vnto the triall of the spiritual Law and therfore euen those cases before remembred where the party followeth this kind of prosecution ought by that Law to belong vnto the Spirituall court as on the contrarie side Spiritual causes of Diffamation being propounded to a pecuniarie end ought to be ordered in a Temporall Court But where any man takes vpon him to iustifie the crime that he hath obiected there either Court is to hold plea of the crime that properly belongeth to that Court for that now no longer words are in question but matter is in tryal whether the partie diffamed hath indéed committed that offence that he is charged withall or no which can bee tried in no other Court than in that to which it doth properly appertaine And that this was the Course aunciently held in matters of diffamation betwéene the Ecclesiasticall and Common Law it is manifest by the Statute of 2. of Edward the 3. chapter 11. 2. Edw. 3. c. 11. where although the Statute taxeth the peruerse dealing of such as when they had béene indicted before the Sherifes in their Retorne after deliuered by Inquest before the Iustice of the Assise did sue the indictors in the Spiritual Court surmising against them that they had diffamed them and therefore in that case forbad the like suits for that Iustice thereby was hindered and many people were feared to indict Offenders yet that Statute plainly sheweth that in all other cases of Diffamation rising out of Temporall crimes beside this the Ecclesiasticall Law had the cognisaunce and that this was forbidden it was not for that that words of this nature could not be censured at the Ecclesiasticall Law when punishment of sin only is required but for that it was not fit that those things which had béene once ordered in one Court should be called againe to examination in another Court and therefore the generall procéeding in matters of Diffamation is not there prohibited but the particuler crossing of matters after iudgement is there reprehended So that that distinction I haue here before spoken of which taketh vpon it to determine when a case of Diffamation is of the Temporal cognisance when of the Ecclesiastical cannot here take place for that it is contrarie to the former Statute or Decrée that diuided these cases into Temporall or Ecclesiasticall cognisance by the varietie of the prosecution thereof and that it is contrarie to the auncient practise that hath confirmed this prosecution in either Court but specially in the Ecclesiasticall Court which hath still holden the triall of such Diffamations wherein sin hath béene onely sought to be punished vntill now of late that men haue stept ouer the bankes of their authoritie and confounded either Iurisdiction with the promiscuous acts one of another when as the Statute it selfe is plaine that the authors of this Statute or Decrée whethersoeuer you call it which set these bounds to either law in procéeding vpon matters of Diffamation respected not so much the qualitie of the crime vpon which the Diffamation grew as the manner of procéeding therein ayming in the one at publicke vindict which is to be sought out of the Ecclesiasticall law and in the other at priuat interest which is to be had out of the Temporall Law Neither is an Action of Diffamation a matter of so light esteeme or qualitie a mans fame or good name being in equal ballance with his life as that it should be drawne away to be attendant on any other action that is of smaller weight or importance than it selfe is for this is one of those Actions which for the speciall preheminence thereof are called Actiones praeindiciales that is such that draw smaller causes vnto them but themselues are drawne of none other but such as are like principal or greater than themselues are So that vnlesse the manner of procéeding bring these causes vnder the compasse of the common Law in such sort as I haue before shewed the coopling of them with another matter of the same Law will hardly bring them vnder the triall thereof For that there be few actions greater than it selfe is so that if the crime be Ecclesiasticall howsoeuer it toucheth a Temporall cause the tryall shall be still at the Ecclesiasticall Law And the same that I say of Diffamations rising out of Ecclesiasticall crimes I hold also to bee true in Diffamations springing out of Temporall crimes where punishment is required for the offence committed and amends in money is not demaunded vnlesse happely that grow of penance inioyned which the offender wil redéeme by
matrimony or that I was borne after that my father and mother were lawfully married together in both which you sée there is a mariage confessed the question onely is of the priority or posteriority of the natiuitie of him that is charged withall whither it hapned before or after his parents marriage which as they hold is the other member of speciall bastardie and yet this prioritie or posterioritie of natiuitie by vertue of the Kings writ comes no lesse in inquirie to the Ordinary in the case of the generall bastardie than they make it to be trauersable in the speciall bastardie and therfore the writ to the Ordinary for generall bastardie is conceiued in this manner viz. Inquiratis Lib. Intrac fol. 35. vtrum praedictus A. pars rea genitus vel natus fuit ante matrimonium contractum inter talem patrem suum et talem Gâ—anuill Lib. 7. cap. 15. matrem suam vel post So that eyther they must consesse there is no such bastardy as they make shew there is diuerse from that that is tried before the Ecclesiastical Iudge or that themselues do confound the members that should diuide the same and make them one or the other as them list for both simply they cannot be vnlesse they be distinguished with other notes and differences than hitherto I find they are But to say the truth if these things be well weyghed and considered speciall Bastardy is nothing else but the definition of the generall and the generall againe is nothing but the definite of the speciall for whosoeuer is borne out or before lawfull Matrimonie he is a bastard and he againe is a bastard that is borne before or out of lawful matrimony so that these things to be a bastard and to be borne out of lawfull matrimony are conuertible one with the other so then as it were very hard to make a diuorce betwéene these things that are so néere in nature one to the other being conuertible termes one to the other so hard again it were in policie to disioyne these things in triall that are so neere in affinitie one to the other because they are the same in substance nature as the other are and therfore eodem iure censeri debent 1â— q. ca. 2. cognoâ—imus then nè continentiae causaruÌ„ diuidantur which is no lesse absurditie in Law than it is a grosnesse in other learning to deny a principle or generall Maxime of the profession And so far hitherto as concerning the reasons arguments that may be brought against this speciall Bastardy Now it resteth that I shew by ancient precedents both these sorts of Bastardy haue appertained to the Ecclesiastical Courts only and the first precedent is in the incident the other in the principall and the precedent is no lesse auntient than Henry the seconds time as that which hapned vnder Alexander the third about the yeare of our Lord 1160. the case is this A certaine man of Norwich Diocesse called R. H. had issue Ca. Lator. ext qui filij sunt legitimi I. H. who had a sonne called C. H. I. H. deceasing before R. H. his father C. H. succéeded in his Grandfathers in heritance his said Grandfather being dead but M. H. brother to the said Grandfather pretending the said I. H. was a Bastard draweth the said C. H. into the Temporall Court vpon the inheritance whereupon C. H. called the said M. H. into the Bishop of Norwich his Court for the triall of his natiuitie but the Bishop long protracting the cause C. H. appealed to the Pope who delegated the same cause to the Bishop of Excester and the Abbot of Hereforde with order That if the said M. H. should not within two Monethes prooue that which he obiected against C. H. that then they should Intimate the same to the seculer Iudge before whom the inheritance was in question that he should not stay any longer vpon the question of legitimation but procéed to Iudgement in the cause of the inheritance Which president though it be long before the Statute of Bastardie made by Henry the 6. and so no writ went from the temporall Court for the certificat therof yet it shewes that the Temporall Iudges in those daies did not procéed to iudgement in the principall cause before the incident were decided by the Ordinary that they counted bastardy then to be of the Ecclesiast cognisance and that it was lawful for him that was preteÌ„ded to be a bastard to appeal from his Ordinary if either the Ordinary detracted the determination therof or were suspected of parciality And thus far of the incident There is an other much like precedent to this in the same Kings dayes but that is in the principall for that the inheritance came not first in question but the legitimation it selfe and the case is as followeth A certain man called Raphe kept one Analine the wife of one Ca. Causam ext qui filij sunt legitimâ— Allin by whom he was supposed to haue begot one Agatha who also being married had a sonne called Richard Raphe going beyond the Sea left Richard and his Mother Agatha in possession of all his goods lands but newes being after brought that the said Raphe was dead beyond sea Frauncis the brother of the said Raphe spoyled the said Richard of the possession of all the goods lands he had of the said Raphe his grandfather for that he did pretend the said Agatha his niece Mother of the said Richard was not borne of lawfull Matrimonie so that neither shée her selfe nor her sonne ought to succéed the brother of the said Frauncis but that the inheritance thereof did belong vnto himselfe whereupon the said Richard being thus spoiled by Frauncis his great vncle obtained letters of restitution to the Bishop of London the B. of Worcester the B. of Excester vnder this forme That before they entred into the principall cause which was this whether the said Agatha were borne in lawfull Matrimonie or not they should restore the said Richard to his Grandfathers inheritance But the Bishop of Rome after vnderstanding by the said Delegats that the plea of inheritance within this Realme did not belong vnto the Church but vnto the King recald that part of his rescript which concerned the restitution of the said Richard to his inheritance gaue order to the foresaid Bishops to procéed in the cause of legitimation willing them to inquire whether the said Agatha were borne of the said Aneline in the life time of her husband Allin and when shée dwelt cohabited with him as with her husband or whether the said Raphe father of the said Agatha kept the said Aneline openly publikely while the said Allin yet liued And if they found it to be so then they should pronounce her the said Agatha to be a Bastard for that Aneline her Mother could not be counted to be a wife but a whore which defyling her husbands bed
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