passage will I note which of them have beene most chiefly oppugned and as occasion shall fall out speake of them PART III. CHAP. I. SECT 1. How the Jurisdiction which is of Civile and Ecclesiasticall cognisance is impeached by the Common Law of this Land and first of the impeachment thereof by the Statute of Praemunire facias ANd thus much as concerning those parts of the Ecclesiasticall Law which are here in use with us Now it followeth to shew wherby the exercise of that Jurisdiction which is granted to bee of the Civile and Ecclesiasticall cognisance is defeated and impeached by the Common Law of this Land which is the third part of this Division The impeachment therefore is by one of these meanes by Praemunire by Prohibition by Injunction by Supersedeas by Indicavit or Quare impedit but because the foure last are nothing so frequent nor so harmfull as the others and that this Booke would grow into a huge volume if I should prosecute them all I will onely treat of the two first and put over the rest unto some better opportunitie A Praemunire therefore is a writ awarded out of the Kings What is a Praemunire Bench against one who hath procured out any Bull or like proces of the Pope from Rome or else-where for any Ecclesiasticall place or preferment within this Realme or doth sue in any forreine Ecclesiasticall Court to defeat or impeach any Judgement given in the Kings Court whereby the body of the offender is to bee imprisoned during the Kings pleasure his goods forfeited and his lands seized into the Kings hand so long as the offender liveth This writ was much in use during the time the Bishop of Rome's authoritie was in credit in this land and very necessarie it was it should be so for being then two like principall authorities acknowledged within this Land the Spirituall in the Pope and the Temporall in the King the Spirituall 25. Ed. 2. 27. Ed. 3 c. 1. 38 Ed. 3. c 1. 2. 7. Rich. 2. c. 12. 13. Rich 2. c. 2. 2. H. 4 cap. 3. grew on so fast on the Temporall that it was to be feared had not * Neverthelesse even out of these Statutes have our Professours of the Common Law wrought many dangers to the Jurisdiction Ecclesiasticall threatning the punishment conteined in the Statute Ann. 27. Edw. 3. 38. ejusdem almost to every thing that the Court Christian dealeth in pretending all things dealt with in those Courts to be the disherison of the Crowne from the which and none other fountaine all Ecclesiasticall Jurisdiction is now derived whereas in trueth Sir Thomas Smith saith very rightly and charitably that the uniting of the Supremacie Ecclesiasticall and Temporall in the King utterly voideth the use of all those Statutes Nam cessante ratione cessat lex and whatsoever is now wrought or threatned against the Jurisdiction Ecclesiasticall is but in emulation of one Court to an other and by consequent a derogation of that authority from which all Jurisdiction is now derived and the maintenance whereof was by those Princes especially purposed D. Cowel in the Interpreter these Statutes beene provided to restraine the Popes enterprises the spirituall Jurisdiction had devoured up the temporall as the temporall now on the contrary side hath almost swallowed up the spirituall But since the forreine authoritie in spirituall matters is abolished and either Jurisdiction is agnised to be setled wholly and onely in the Prince of this land sundry wise mens opinion is there can lye no Praemunire by those Statutes at this day against any man exercising any subordinate Jurisdiction under the King whether the same bee in the Kings name or in his name who hath the same immediatly from the King for that now all Jurisdiction whether it be Temporall or Ecclesiasticall is the Kings and such Ecclesiasticall Lawes as now are in force are called the Kings Ecclesiasticall Lawes and the Kings Ecclesiasticall Courts for that the King cannot have in himselfe a contrarietie of Jurisdiction fighting one against the other as it was in the case betweene himselfe and the Pope although hee may have diversitie of Jurisdiction within himselfe which for order sake and for avoyding of confusion in government hee may restraine to certaine severall kindes of causes and inflict punishment upon those that shall goe beyond the bounds or limits that are prescribed them but to take them as enimies or underminers of his state he cannot for the question here is not who is head of the cause or Jurisdiction in controversie but who is to hold plea thereof or exercise the Jurisdiction under that head the Ecclesiasticall or Temporall Judge Neither is that to move any man that the Statutes made in former times against such Provisors which vexed the King and people of this land with such unjust suits doe not only provide against such Proces as came from Rome but against all others that came else-where being like conditioned as they for that it was not the meaning of those Statutes or any of them therby to taxe the Bishops Courts or any Consistory within this land for that none of them ever used such malepert sawcinesse against the King as to call the Judgements of his Courts into question although they went farre in strayning upon those things and causes which were held to be of the Kings temporall cognisance as may appeare by the Kings Prohibition thereon framed And beside the Archbishops Bishops and other prelates of this Land in the greatest heat of all this businesse being then present in the Parliament with the rest of the Nobility disavowed the Popes insolencie toward the King in this behalfe and assured him they would and ought to stand with his Majestie against the Pope in these and all other cases touching his Crowne and Regalitie as they were bound by their allegeance so that they being not guilty of these enterprises against the King but in as great a measure troubled in their owne jurisdiction by the Pope as the King himselfe was in the right of his Crowne as may appeare out of the course of the said Statutes The word Elsewhere can in no right sence be understood of them or in their Consistories although Et le stat est in Curia Romana vel alibi le quel alibi est a entender en la Court l'Euesque issint que si hōme soit sue la pur chose que appent al Commen ley il aura Praemunire Fitzherb Nat. Bre. Tit. Praemunire facias some of late time thinking all is good service to the Realme that is done for the advancement of the Common Law and depressing of the Civile Law have so interpreted it but without ground or warrant of the Statutes themselves who wholly make provision against forreine authority and speake no word of domesticall proceedings But the same word Elsewhere is to be meant and conceived of the places of remove the Popes used in those dayes being
A VIEW OF THE CIVILE AND ECCLESIASTICALL LAW And wherein the Practice of them is streitned and may be releeved within this Land Written by Sr THOMAS RIDLLY Knight and Doctor of the Civile Law The second Edition by I. G. Mr. of Arts. OXFORD Printed by William Turner Printer to the University 1635 Cum Privilegio TO THE READER THis Learned and usefull View of both the Lawes once more adventureth it selfe upon the Opinion of Men and it may now hope to receive a more indifferent censure then before as being committed to a season more mature and more perfectly dispos'd for howsoever the Time that first brought this forth could not be charged with any notable distemper yet the Common-wealth wee live in is of that thriving nature that however the present time may still bee good yet it alwayes makes the succeeding Age better then it selfe This argues the State not neare her ruine though some unruly Spirits led by an irregular Motion have beene bold to anticipate as if every one that bad so much pitty as to feare had also judgement enough to foresee the ruine of a Kingdome 'T was more then enough for such Men to set downe the Fate of a single-soule without resolving upon the doome of a whole Nation But these that would seeme to know such high things are most properly punished by being neglected for to a Man that would bee thought to know and knoweth not no greater miserie can happen then that hee should faile of his Expectation If I were to serve or follow any time I would propose the Present which as it hath lesse of the pretences of former Ages so it hath much more of the Moderation and if it needs must be suspected that the State is not farre from her fall let this be the onely reason because she draweth so neere to her perfection That which heretofore most of all incumbred these Dominions was the disproportion of the Civill Power to the Ecclesiasticall This a Great Prince abated and the Act was truly masculine yet like those of the strongest importance would not be perfected by the same hand therefore it was by him so fully done on the one side that it might be feared lest it should runne over on the other To prevent this the discretion of these late discerning times hath warily provided the wisedome of the Prince having so well tempered both the Powers that it may now be hoped they shall agree one with an other as both doe in him by a glorious correspondence The State thus bending towards the best and thé most perfect mediocrity this Author whose hope that alwayes was couldnot but revive again therefore it is that though hee be dead hee yet speaketh If still there be that will reprehend these our paines as if they were cast upon a man too much sought after be it so but these men have least cause to complaine for if the matter of this Booke be as they suppose then the onely way to suppresse it will be to make it common for things of that nature are least of all enquired for when they are most easily to be found but if they rarely appeare they are more eagerly sought after and the more obstinately esteem'd VVhen first I would see this Treatise I beheld it at a distance and not without some prejudice for so I was prompted by the insinuations of a fallible Report but finding it under the Protection of the High and Mighty Prince Iames I tooke libertie to resolve against all popular contradiction And now to seeke any other Patron for this new Edition I have thought it altogether inglorious For what can the man doe that commeth after the King For a Note or two which I have here and there timerously let fall If the Reader expect that I should aske his pardon there may bee cause but there is no convenience for this kinde of Complement is now adayes indifferently set before those things that are well and those that are ill done Besides it would argue Certaine follie to be engaged there for pardon where our choyce is to offend VVhat I have here done amisse I shall hereafter hope to rectifie either by doing something that shall be better if that may be or which is the safest way by doing so no more I. G. TO THE HIGH AND Mighty Prince IAMES by the grace of God King of Great Britaine France and Ireland Defender of the Faith c. MOST gratious Soveraigne since it hath pleased Your Majestie 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 Civile Law and the Temporall Law of this Land by which joyntly Your Majesties State is managed next after Your owne most rare providence and the wisdome of such whom it hath pleased Your Highnesse to associate unto Your selfe in the great affaires of Your Kingdome I have been bold to offer unto Your Majestie this simple Treatise as that which doth lay out the cause of those Differences more particularly than any man hitherto hath expressed the same In comming to which because I doe speake for those parts of Your Majesties Lawes which are lesse knowne unto Your people and esteemed no otherwise of them than they see the practice thereof to bee here within Your Land I have thought good as it were in a Briefe to set out the whole summe 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 conceived to bee So that the profession of the Ecclesiasticall and Civile Law may appeare to the world neither to bee idle nor unfit for the State so farre as it hath pleased the Royall Predecessours of Your Highnesse to give entertainment unto it and Your Majestie Your selfe to admit of it In all which there is no other thing sought than that such greevances as have beene of late offered by one Iurisdiction unto the other and in consequence to all Your Subjects who follow any suits in the Civile or Ecclesiasticall Courts may by Your Princely wisdome be considered and by Your authoritie be redressed if they be found to be greevances 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 ever goeth to the worse and that which is mightier prevailes against the other the professors thereof being rather willing to give Lawes and interpretations to other than to take or admit of any against themselves For which the weaker appeales unto your Highnesse humbly desiring Your Majesties upright and sincere Iudgement to discerne where the wrong is and to redresse it accordingly which is a worke worthy Your Majesties high consideration For as the Land is Yours so also the Sea is Yours and the Church is under Your Highnesse protection as a Childe is under his Tutor so
that all the Lawes thereof appertaine unto Your Majesties care comfort alike For which not onely the whole profession of Your Ecclesiasticall and Civile Lawyers that now are but those which shall succeed in those places for ever hereafter unto the worlds end will praise and magnifie Your Majesties gratious favour towards them and wee that now are will pray to God for the long and happie prosperitie of Your Highnesse and Your Posteritie over us during the continuance of this Heaven and this Earth and after the passing away thereof a perpetuall fruition of the new Heaven and the new Earth wherein righteousnesse onely shall dwell for ever Your Majesties most humble and dutifull Subject THOMAS RIDLEY To the Reader GEntle Reader I confesse as I meditated this Treatise upon mine owne motion as I doe somtimes matters of other argument when my leasure serves mee thereto so also I doe not set it out to the view of the world upon mine owne motion but was desirous it should have beene kept in saving that I must obey where I am bound The thing that gave mee cause to this meditation was that I saw many times how meanly men esteemed of the Civile and Ecclesiasticall Law of this Land valuing them by the practice of so much of them as we have among us And therefore I thought good although not wholly to unfold the riches of them yet to make shew of them folded up in such sort as Mercers make shew of their silkes and velvets laid up in whole peeces in their shops whereby it may bee seene what great variety they have of all these kinde of wares although the goodnesse of the ware it selfe cannot be discerned because it is foulded up Besides seeing how frequent prohibitions are in these dayes in causes of either cognisance more than have beene in former time I thought it not unworthy my labour to inquire and see upon what just grounds they are raised up in this multitude not of any humour I have to gainesay the lawfull proceedings of any Court which I reverence and most readily acknowledge their authoritie in all things belonging to their place but to know and search out the truth of those suggestions that give cause unto these prohibitions For whenas such Lawes as are written of these businesses are written indifferently as well for the one Iurisdiction as the other no man is to be offended if the one Iurisdiction finding it selfe pres sed by the partiall interpretation as it supposeth of the other inquire the ground of such interpretation and labour to redresse it if it may be by the right interpretation thereof To the end that either Iurisdiction may retaine their owne right and not the one bee overtopt by the other as it seemeth to be at this day And that in such matters as they concerne of their owne right as depend of no other authoritie but of the Prince alone which is the thing onely that is sought in this little Treatise And therefore the Reverend Iudges of this Land are to be intreated that they will vouchsafe an equall interpretation of these matters as well to the one Iurisdiction as the other for so it is comely for them to doe and if they doe it not the other are not so dull-senced but they can perceive it nor so daunted but that they can flie for succour unto him to whose high place and wisdome the deciding of these differences doth of right appertaine PENELOPE is said to have had many wooers comely in person and eloquent in speech but shee respected none but her owne ULYSSES Such should be the minde of a Iudge that whatsoever other appearance or shew of truth be offered one saying This is the true sence of the Law and an other that yet the Iudge should respect none but the very true germane and genuine sence thereof indeed Which if it were religiously or indifferently observed in every Court then needed not this complaint that now is but every Iurisdiction should peaceably hold his owne right such as the Prince Law or Custome hath afforded unto it THOMAS RIDLEY A VIEW OF THE Civile and Ecclesiasticall Law also wherein it is straightned and wherein it may be releeved PART I. CHAP. I. SECT 1. The Division of the whole booke into foure parts What right or Law is in generall What is the Law publick and what the Law private What is the Law of Nature What is the Law of Nations What is the Law Civile BEfore I shew how necessary it is for his Majestie and the Realme to maintaine the Civile Ecclesiasticall Lawes as they are now practised among us in this Realm I will set downe as it were in a briefe what the Civile and the Ecclesiasticall Lawes are then will I shew how farre forth they are here in use and practise among us thirdly wherein wee are abridged and put beside the use and possession thereof by the Common Law even contrary to the old practise thereof and the true sence and meaning of the Lawes of this Realme and the Statutes in this behalfe provided and lastly wherein we might be releeved and admitted to the practise of many things in the Civile Law without prejudice to the Common Law and so both the Lawes might know their owne grounds and proper subjects and not one to be jumbled with the other as it is at this day to the great vexation of the Subject But before I speake of the Civile Law in particular I will define what Right or What Law is Law is in generall Law therefore is as Vlpian saith L. 10. in fin ff de Justicia Jure the knowledge of Civile and humane things the understanding of those things which are just and unjust This Law is primarily divided into the Law publick and the Law private The 1. Jus publicum publick is that which appertaineth to the generall state of the common-wealth for I meane the Law publick not in respect of the Forme that they were publickly made as we make lawes in our Parliaments for so all the Civile Law is publick as made by publick authority but in respect of the object or end thereof for that they concerne the Church the Clergie the Magistrate and other like publick functions none of which levell at the rule of equity or equality between man and man as private lawes doe but ayme at that which is most fit ingenerall for the common State 2. Jus privatum The private Law or the private mens Law is that which concernes every singular mans state which for that it is occupied in giving every man his owne it must of necessitie be proportionable to the rule of Equitie and Justice Private Law is of three sorts the law of Nature the law of Nations and the law Civile The law of Nature is that which Nature hath taught every living creature as the care and defence of every The Law of Nature creatures life desire of libertie the conjunction of male
they are referred to the punishment of the Judge who is to punish them according to the quality of the fact age and understanding of the offender and other circumstances according as he shall thinke good so notwithstanding that he exceed not a convenient measure therein neither stretch the same to death but upon some great and weighty cause he is to be content with meaner punishment as temporall banishment whipping or some moderat pecuniary mulct For violating or defacing another mans sepulchre Imfamy was imposed besides a pecuniary mulct to be divided betweene the Prince and the party grieved but if any dig up the corse of the deceased the punishment is death If any by feare of his office or authority wring any money from any man or exact more fees in any matter than he ought to doe or cause him to marry or doe any other thing he would not doe the forfeiture is foure double the value of that which hath been taken beside further punishment at the discretion of the Judge Such as drive mens cattell out of their ground or sever them from the flock or herd with intent to steale them if they doe it with a weapon like unto a Robber are condemned to be throwne to wild beasts otherwise are more lightly punished according to the discretion of the Judge Such as in Judgement take money on both sides or taking upon them the defence of one side betray the cause and take money on the other side are infamous by law and are punished at the discretion of the Judge Such as receive theeves and other like malefactors are punished in like sort as the theeves or malefactors themselves are especially if they have assisted them in their wickednesse otherwise if they onely knew it received them they are more mildly to be punished especially if the offenders were their kinsmen for their offence is not like theirs which entertain those which are no kin to them at all when as it is naturall for every one to regard his owne blood and fathers are many times more carefull for their children than for themselves but if that hee that received them knew nothing of the offence then is he altogether to be excused Such as break prison are to be punished by death because it is a certain treason to break the Princes ward but if they scape by the negligence of the Keepers against whom the presumption lyeth ever in this case they are more lightly to be punished If any commit Burglarie breaking up a doore or wall with intent to doe a Robbery if they be base companions they are to be condemned to the Mynes or Gallies but if they be of better reckoning they are to be put from the ranke or order wherein they are or to be banished for a season Juglers and like Impostors which goe about deceiving of the people with false tricks and toyes hookes and such like which insinuate themselves into other mens houses with purpose to steale are punished at the discretion of the Judge If any steale or take away any thing out of the inheritance of another man before either the Will be proved or administration be taken an action of theft lyeth not because the inheritance during the time was counted no bodies but he is to be punished by the discretion of the Judge yea though it were the heire himselfe that did it Cosenage whereby a man craftily suppresseth some thing he should not or putteth one thing in anothers place to the deceit of him that hee dealeth withall or corrupteth such wares which hee uttereth or doth any other thing collusorily which is called of the Law Crimen Stellionatus of a little vermin or creature called Stellio much like to a Lisard most Crimen Stellionatus envious to man is censured by some ignominious shamful punishment or by disgracing the person by putting him out of the Office Place or Order he is in or by injoyning him some servile worke or by banishing him for a time or by some like punishment at the discretion of the Judge If any plough up a Mere balke or remove any other marke which hath accustomed to be a Marke or bound betweene ground and grounds which anciently was counted reverend and religious among men the offence is punished either by a pecuniarie mulct or by banishment or whipping at the discretion of the Judge Unlawfull Colledges Corporations and assemblies gathered together to bad uses as to eating drinking wantonnesse heresie conspiracie are punished as publick Routs or Riots otherwise at the discretion of the Judge All these before recited are called Popular Actions because not onely he that is injured but every other honest subject may pursue and prosecute the same Publick Judgements are such which immediatly pertain Publick Judgements to the punishment of the common-wealth for example sake and are examined tried and punished by a publick order appointed by Law the partie grieved making himselfe partie to the suite and following the same the party accused in the meane while remaining in prison or putting in suerties for his appearance and the partie grieved for the prosecuting of the same The chiefest of which sort is Treason which is a diminishing or derogation of the Majestie of the people or Prince on whom the people have collated all their power which is punished with death and confiscation of the Lands and goods of the offender and the eternall abolishment of his memorie The next is Adultery which is violating of an other mans bed whose punishment anciently was death both in the man and in the woman but after it was mitigated in the woman shee being first whipt and then shut up in a Monasterie but by the Canons other paines are inflicted Under Adulterie are contained Incest Sodomy Baudery and all the rest of the sins of that kinde Publick force is that which is done by a company of armed men collected together and the correction thereof is perpetuall banishment Private which is done without Arms the paine thereof is the losse of halfe the parties goods and the infamie of his name Murtherers and Poysoners Witches and Sorcerers the crime being proved dye the death such as set mens houses a fire are to be consumed with fire themselves such as kill either Father or Mother or those that are in the place of Father or Mother or any that are of next a kin their punishment is death and in case of the Father and Mother beside the pain of death the Parricide being first well whipt so that the blood doe follow in good plenty hee being sowed up into a sack together with a Dogge a Cock and an Ape is thrown into the depth of the Sea Such as make false Certificates forge false Wils Depose false wittingly suborne witnesses take money either to say or not to say their knowledge of that which they are demanded of in Judgement corrupt Judgement or cause it to be corrupted interline put in or raze out any thing out of any
carrieth it away and how the same may be revoked unlesse all rights and ceremonies be solemnly performed therein How things that are in Common betweene the Ecchequer and private men may be sold and that the Exchequer evict nothing that it hath once sold for that it were a thing against the dignity of the Exchequer and would terrifie private men for bargaining with it Of those that have borrowed money out of the publick receipts and what penalty they incurre if they repay it not at their dayes covenanted somtimes the forfeiture of foure double of that they have borrowed somtimes danger of life it selfe That in cases of penalties the Exchequer be not preferred before such as the Offender was truely indebted unto but that they be first served and then the Exchequer have onely that which is left What usurie the Exchequer may take that is for money lent and not for such summes as grow out of Mulcts and Penalties That such sentences that are given against the Exchequer may be retracted within three years following although ordinarily all other Sentences are irrevocable after ten dayes 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 excheat by reason they have 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 excheat unto the Prince Of Promoters by whose informations any goods are confiscate either by reason of the goods themselves for that they are adulterine or that they are prohibited to be exported or imported or upon some other like cause or by reason of the persons that have offended and crimes wherein they have offended and their punishment if they give in any wrong information or other than such as they are bound unto by vertue of their Office and that they give no information in but by advise of the Attourney 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 sute unto the Prince for those things that are confiscated unto the Exchequer as though it were more Honourable for the Prince to bestow such things on his Courtiers than to keepe 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 unlesse the Prince of his owne motion and at no other mans sute will or command the same Of such as put themselves into the Exchequer upon any confession made against themselves Of such to whom the Prince joyntly hath given any farme or like thing that where one of them dyeth without an heire the other may succeed him Of Treasure found that the Exchequer be made acquainted with it and that if it be found in a publick place halfe goeth to the Exchequer the other to the finder but if it be in a private place then halfe to the Lord of the soyle and the other to the finder Of provision for Corne and such other like Of Tribute which was an ordinary payment Of imposition and super-impositions which were payments laid upon the subject above ordinarie taxe for some present necessity to which charges the ordinary taxe doth not suffice which was not to be done but upon great and urgent cause by a Councell called together and with the consent of the subject Of Collectors of the Subsidies and in what manner they are to be 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 be lawfull to distrain for Tribute unpaid that such acquittances as the Exchequer shall deliver unto the accomptants shall be their full and finall discharge and that the Subsidie Bookes shalt every quarter be sent up into the Exchequer with the account of the Collectors that thereby it may appear how much every man hath paid or oweth unto the Exchequer and that nothing may be done for the grievance of the poore or the favour of the rich Of the Booke of accounts of yearly gifts that commonly Subjects present unto the Prince at New-years-tide and otherwise and that they be divided from the accounts of the Exchequer That no man be freed from the payment of Tribute Of spending out such ancient gain and other like provision as is laid up in the common store-house and making provision for a new and compelling the subjects such as have plenty of such grain if it happen to be vinoed and mustie to buy the same that the whole losse thereof may not lye upon the Exchequer What pension such Mannors as the Prince hath given or released from payment of Subsidies shall give and that no man be so hardy to beg such a matter of the Prince lest the revenues of the Exchequer be thereby diminished Of Manners that have beene translated from the payment of one kinde of provision to an other or that have beene in their taxation over-rated Of Brasse that Minerall Countries are to yeeld or money in lieu thereof Of Controllers whose Office it was to cast over again such accounts as were brought into the Exchequer or to examine them a-new lest perhaps there might be an errour in them And so farre as concerning those things which doe appertain to the account of the Exchequer or the patrimony thereof or such pensions or payments as are due unto the same Now followeth the other part of this tenth Booke which conteineth the burthens duties or offices imposed on the subject by the Exchequer and what excuse the subject might alleage in this behalfe Burthens or duties were either personall as places of Honour which were not to be continued from the father to the childe or they be Patrimoniall which are charged upon mens inheritance either for the good of the common-wealth or to enrich the Exchequer against dangers that are like to ensue which are undertooke and performed either by those which are of necessity to obey that which is enjoyned them or by those which offer themselves voluntarily thereto which seldome happeneth in patrimoniall charges but in matters of Honour and personall services it many times commeth to passe that men excuse not themselves from bearing of Offices or doing of personall services although they have an immunitie from them either by the grant of the Prince which is to be understood of extraordinary service only and not of ordinary or by the benefit of the Law for by the Law men are many times upon just causes excused from Personall services so it be not from such services 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 Wayes and Wals the provision and
if the usage and custome of the payment it selfe had not beene subject to the Ecclesiasticall cognisance for in vaine shall a man sue for that the Law allowes him no course to come by if it be denyed in the speciallest L. Finals ff de officio ejus cut mandata est turisd l. 3. ff de penu legata point belonging to that suite for this is undoubted Law where ever there is an authority or Iurisdiction granted there are in like manner granted all those things without which that authority or Jurisdiction cannot bee perfected or performed SECT 3. That customes of payment of tythes are triable onely at the Ecclesiasticall courts ANd therefore it is without question as Tythes by the said Statutes are onely recoverable by the Ecclesiasticall Law and not elsewhere so also the custome whereby they are paid is only triable at the Ecclesiasticall Law Otherwise this inconvenience will follow thereupon which in all other Lawes beside this of ours is a great absurditie Bartol l. nulli C. de iudicijs Glos. c. significaverunt de iudicijs that the connexitie of the cause which the Civilians call Continentiam causarum will be dismembred and disjoyned which by all good pollicie together with all her parts emergent or annexed ought to be handled discussed and determined before one and the selfe same Judge one I meane not in number but one in profession for otherwise I should by this assertion barre Appeales which is not mine intent Which course if it were held here in England causes should not be drawn peece-meale in such sort as Medea tore her brother limme-meale and one part of it carried to this Cicero pro Murena Court another to that like unto the rent lims of the childe that were cast here and there by Medea thereby to hinder her father from pursuing her but all should be ended in one and the selfe same Court which would be a great ease to the subject who now to his intolerable vexation and excessiue charges is compelled to runne from Court to Court and to gather up as it were one lim of his cause here and another there and yet happily in the end cannot make a whole and perfect body of it Beside it is a mighty disorder in a Common-wealth thus to jumble one Jurisdiction with another the very confusion as well of the one Law as the other for as Kingdomes are preserved by knowing their bounds and keeping their limits so also Jurisdictions are maintained and upheld by containing themselves within the lists or banks of their authoritie Further unles they will grant that there is an Ecclesiasticall custome as there is a Secular Custome and that the one is as well to be tried in the one Court as the other is in the other they will make their own Doctrine in the before rehearsed Prohibition voyde where they will have it certain that there is a Secular Custome if there be a Secular Custome then doubtlesse there is also an Ecclesiasticall or Spirituall custome for the word Secular is not put in that Glo 〈…〉 Clem. unica in verbo aternaliter de summa tâ—â—nit fide catholica place absolutely but relatively and the nature of Relatives is one to put another and one to remove another but in the Secular customes they barre the Civilian therefore they grant him the spirituall for of contrary things there are contrary reasons and contrary effects and what that which is proposed doth worke in that which is propounded L. Fin. §. plus autem de legatis 3. â—bâ— Angel the same againe that which is opposed doth worke in that which is opponed by which Rule as Temporall Lawyers are to deale in Temporall Customes and spirituall men are not to intermeddle therein so also Ecclesiasticall Lawyers are to deale in Ecclesiasticall causes and Temporall Lawyers are not to busie themselves thereabout And that this was the intent of the King when hee first received the Church into his protection with all the priviledges thereof may appeare hereby that having united both the Jurisdictions in his owne person he did not jumble them both together as now they are but kept them distinct one from the other not onely in authorising the Ecclesiasticall Courts that were before but also in using the very words and phrases that the Jurisdictionaries Ecclesiasticall did use every where in their writings even these words whereupon men now take hold to frame Prohibitions viz. according to the laudable customes and usages of the parish and places where such Tythes grow which were the words of Innocent the third in the Decretals upon the title of Tythe long before these Statutes were made or any other Statutes concerning the true payment of Tythes and Linwod in the same title of Tythes often useth the very selfe same words and phrases that the other doth so that if these words made no Prohibition before the Statute as I thinke it cannot well be shewed to the contrary neither ought they to doe it now since the Statute for that they are spoken still in the Church businesse and not in a temporall matter whose government although it be under one and the selfe same Prince that the temporall state is yet is it distinct from the same as ever it hath beene since there hath beene any setled forme of Church-government in any 1 Cor. 5. common-wealth as may appeare both by the example of S. Paul which never goeth to any temporall power to punish the incestuous person although there were sundry lawes then both in Greeke and Latin written of these matters but doth it by the spirituall sword alone and also by that that in matters of jarre for worldly causes betweene brother and brother hee forbids such as were new Christians to goe to 1 Cor. 6. law before Infidels but adviseth them rather to appoint Judges among themselves to decide such controversies which albeit in those dayes was meant as well of lay Christians as of the Ministers of the Gospell for that the number of them then was small and the causes of suit they had one against an other were not many and might easily be ended by one and the selfe same consistorie yet when the number of the Christians increased and the Church got some rest from persecution the Jurisdiction was againe divided and as there were secular Courts appointed by Princes wherein temporall mens causes and lay businesses were heard so there were also by the same authoritie erected Ecclesiasticall Courts and Bishops audiences wherein either Ecclesiasticall mens causes alone or such as they had against C. de Episcopali audienta â—ertia Lay men or Lay men against them were treated of and determined So that this was no new devise of Henry the eigth or Edward his Sonne that when they tooke upon them the supremacie over the Church as they had before over the common-wealth they did not mishmash both the States together and made one confused heape
hold plea of any thing that is in the said Proviso conteined but it is rather directive and sheweth where the Ecclesiasticall Judge is to give way to immunities and to pronounce for them so that for any thing is conteined in this Proviso to the contrary the cognisance of these matters especially Priviledge Prescription and Composition still remaineth at the triall of the Ecclesiasticall Law as they did before this Proviso was made for Deprascript lib. 2. tit 26. De Privileg lib. 5. tit 33. Tythes and other Ecclesiasticall dueties as may appeare by the severall titles in the same Law hereon written And for the other words Law and Statute therein mentioned when as the King hath two Capacities of government in him the one Spirituall the other Temporall and his high Court of Parliament wherein Lawes are made doth stand as well of Spirituall men as Temporall men and so ought to stand in both houses if the ancient Booke De modo tenendi Parliamenti be true and authenticall which makes the upper House of three States the Kings Majestie the Lords Spirituall and the Lords Temporall and the lower House in like sort of three other the Knights the Procurators for the Clergie and the Burgesses and his Majestie hath within this Realme aswell Ecclesiasticall Lawyers as Temporall which are no lesse able to judge and determine of Ecclesiasticall matters then the Temporall Lawyers of temporall businesse It is not to be imagined but as his sacred Majestie will have those Lawes to be held Temporall and to have their constructions from Temporall Lawyers which are made and promulged upon Temporall rights and causes So also his Highnesse pleasure is and ever hath beene of all his predecessours Kings and Queenes of this Land that such Lawes and Statutes as are set out and published upon Ecclesiasticall things and matters shall be taken and accounted Ecclesiasticall and interpreted by Ecclesiasticall Lawyers although either of them have interchangeably each others voyce in them to make them a Law And that the King doth infuse life into either of the Lawes when as yet their substance is unperfect and they are as it were Embryons is in temporall matters by his temporall authoritie and in spirituall matters by his spirituall authoritie for to that end he hath his double dignitie in that place as also the Ecclesiasticall Prelates sustaine two persons in that place the one as they are Barons the other as they are Bishops So that even the orders of the House doe evince that there are two sorts of Lawes in that place unconfounded both in the head and the body although for communion sake and to adde more strength to each of them the generall allowance passeth over them all And as they rest unconfounded in the creation of them so ought they to be likewise in the execution of them as the Temporall Law sorts to the Temporall Lawyers so the Spirituall Lawes or Statutes should be allowed and allotted unto the Spirituall Lawyers And as the nomination of these words Law or Statute in this precedent Proviso makes not the Law or Statute Temporall but that it may remain wholly Ecclesiasticall by reason of the Spirituall matters it doth containe the power of him that quickneth it powreth life thereinto so much lesse can the inserting of these tearmes Priviledges Prescriptions or Composition reall intitle the Common Law to the right thereof or the Professours of the said Law to the interpretation thereof for that matters of these titles so farre as they concerne Tythes and other Ecclesiasticall dueties have beene evermore since there hath beene any Ecclesiasticall Law in this Land which hath beene neere as long as there hath beene any profession of Christianitie with us of Ecclesiasticall ordinance neither ever were of the Temporall cognisance untill now of late that they transubstantiate every thing into their owne profession as Midas turned or transubstantiated every thing that hee touched into gold CHAP. III. SECT 1. How it comes to passe that when tythes were never clogged with custome prescription or composition under the Law they are clogged with the same under the Gospel and the causes thereof BUt here it will not bee amisse to inquire since Tythes came in the beginning of the primitive Church within a little time after the destruction of Jerusalem and the subversion of the Jewes policie unto the Christian Church and common-wealth void of all these incumbrances as shall appeare after by the testimonie of sundrie of the ancient Fathers which were neere the Apostles time how it comes to passe since Tythes are no lesse the Lords portion now than they were then and in the Patriarches time before them that these greevances have come upon them more under the Gospel than ever they did under the Law for then never any Lay man durst stretch out his hand unto Malach. 3. them to diminish any part thereof but hee was charged with robberie by the Lords owne mouth and in punishment thereof the heavens were shut up for giving raine unto the earth and the Palmer-worme and Grashopper were sent to devour all the greene things upon the earth And for Ecclesiasticall men it is not read any where in the Scripture that ever they attempted to grant out any priviledge of Tythes to any person other than to whom they were disposed by the Law or to make any composition thereof betweene the Lay Jew and the Lords Levites every of the which have beene not onely attempted against the Church in Christianitie but executed with great greedinesse so farre worse hath beene the state of the Ministery under the Gospel than was the condition of the Priests and Levites under the Law SECT 2. That the causes are two fold First The violent intrusion of Lay men and secondly The over-much curiositie of Schoole men and first of the first cause and therein concerning Charles Martels Infeudations and the violent prescriptions ensuing thereupon THe beginning whereof although it be hard for mee to finde out because there is small memory thereof left in Stories yet as farre as I can by all probabilities conjecture this great alteration in Ecclesiasticall matters came by two occasions the one by the violence of the Laitie thrusting themselves into these Ecclesiasticall rights contrary to the first institution thereof for when they were first received into the Christian world they were received and yeelded to for the benefite of the Clergie onely as in former time under the Law they had beene for the use of the Priests and â—evites onely The other was the too too much curiositie of Schoolmen who being not content with the simple entertainment of Tythes into the Church as the ancient Fathers of the primitive Church received them would needes seek out how and in what right and in what quantitie this provision belongs unto the Church wherein they did by their overmuch subtilty rather confound the truth than make that appeare which they intended to doe By the first of these was
estre inhunâ—e le ventre la face contre terre pour l'expiation des pechés de son Pere hee would bee interred with his face and belly downward to expiate his Fathers transâ—ressions as Dupleix also was contented to observe and it is to be found in the Antiquities of France Therefore Charles Martels Sacriledge in generall must be granted But it hath beene also constantly received that in particular this Charles defrauded the Church of her Tythes as hath beene said But this passage of the Storie hath found some opposition One of the first that ever shewed himselfe an adversarie to this opinion was Stephen Pasquier a man whom though wee forsake in this particular yet wee may safely commend for his varietie of learning otherwise an ample testimonie whereof he hath given in his Booke De Recherches de la France saving that hee cannot be pardoned for his haâ—sh and â—â—vious minde towards the dignitie and Jurisdiction of the Clergie which discovereth it selfe in severall passages of his third Booke In the same Booke Chapt. 35. which is Des Dismes Infeodees Concerning the Infeudation of Tythes he adventureth to overthrow the received opinion The maine reason hee urgeth as farre as I conceive him is for that those who first and anciently wrote the Historie of their Kings or otherwise tooke notice of the acts of Charles doe not accuse him of any such Infeudations But to this I suppose some answer may be conceived in this manner The principall Historiographer of whom wee are to consider in this case must bee Aimoine who wrote the Storie of the French Kings and what was delivered in his Chronicle concerning the times wee aime at for the most part made up the Bookes of those Writers that succeeded for some certaine centuries of yeares This Aimoine Stephen saith maketh no mention of that Act of Martel 't is true neither maketh he mention of any Sacriledge at all no not so much as Stephen himselfe and all Writers beleeve that Martel was guilty of And I should wonder if hee had for Aimoine lived in the time of Charles the great and what he wrote concerning him and his ancestours hee received from Autmare Chaplaine to the same Charles and this is too neere the time of Martel for a true Historian Indeede the lives of pious Princes may be written before their deaths and if there happen an unworthy passage it is not corrected in their Storie but their Conversation But when a great King proves not good his first Historians must be worse for no Subject may dare to write what such a Soveraigne could commit And therefore if an ill Act occurre the Historian must dissemble or defend it for what e're be after thought of great mens actions yet when they are newly done either they must not be mentioned or if they be they must be magnified Therefore Autmare who depended upon Charles the Great must not tell such tales of his Grandfather And for this cause it is that when Aimoine speakes of Martel he styles him virum sagacissimum and virum egregium adding moreover that his atchievements were accomplished Christo in omnibus praeside See lib. 4. c. 57. where also relating his victories he compareth the siege of Avignon to that of Iericho as if Charles had march't on like those great Commanders of Israel and the wals of Avignon had fallen downe like those of Iericho at the very sound of Martels Trumpets Thus Aimoine observes the time hee lives in So Boniface Archbishop of Mentz in Martels dayes though perhaps hee could have said more than hee did if that be not enough which hee hath said that this Charles was Ecclesiasticarum pecunâ—arum inproprios usus commutator yet that which hee did say seemeth to have beene no otherwise publickly knowne than in an Epistle of his to Ethelbald one of our Mercian Kings a fragment whereof is inserted into the Storie of this Ethelbald by William of Malmsebury but in other Copies of this Epistle the clause which concernes Martel occurres not for of late dayes by the great industrie of Serarius we come to see a volume of that Archbishops Epistles the nineteenth whereof is that which was directed to Ethelbald But there the passage of Martel cannot be found And the truth must be that if Boniface have any such thing to say of Charles hee must send it farre enough for it might not bee told at home That which hath beene said may passe for a reason why so great a crime of Martel was not so publickly recorded till time could weare out the danger and the Historian could write the Act with as much confidence and securitie as Martel did it Therefore it is that though the Writers began betimes to touch at his impietie yet they struck not at this master piece but by degrees Paulus AEmilius a diligent Writer and one that spent 30. yeares to compile the French Storie seemeth even in those dayes to report this timorously as if it had beene then too soone to give a just account of this Sacriledge For when hee commeth to Charles Martel hee saith that there passed upon him a diverse rumour For some gave out Eum omnium Ducum Imperatorúmque gloriam transcendisse that hee had transcended the renounce of all Kings and Captaines that ever were before him Others reported that hee onely seem'd to doe so in the eyes of ordinarie men and that hee had decumarum sacrum juâ— militaribus viris attribuisse given over the divine right of Tythes to his militarie men But it is necessarie for the Reader to observe that the Authors of the first report were as Paul saith Summi viri great men but those that related the second were Sancti viri good men And the first sort may but the latter ought to be beleeved But wee shall finde this matter more confidently related by the French Historians who spare not to set it downe plainely and ingeniously though it concerne their Storie more than others that this Martel should be blamelesse An ancient Chronicle of theirs Le Rozier Historial de France part 2 concerning this passage saith thus Par le conseil des Euesques luy furent donnâ—z les dismes de Eglises pour gaiger ses cheualiers qu'il promist rendre faire de plus grans bien a l'Eglise s'il viveit longuement Fol. 21. hee saith That Charles did bestow the Church Tythes upon his Knights and that he promised to restore them againe and much more but this must be s'il vivoit longuement if hee liv'd long enough How long Charles would have lived to doe this I know not but that he lived not so long as to see it done wee are sure enough The like is reported concerning this passage by Nich. Giles but because this Author hath beene corrected and enlarged by Belleforest wee shall use his words and they are these Pour fournir aux fraits dispenses qu'il convenoit faire pour lesdictes guerres que ledict Charles Martel avoit contre
restore them restore them to the Churches from whence they were taken which had beene most agreeable to the ordinance of the Church set down by Dionysius who first devided Parishes and assigned unto them Tythes as hath beene aforesaid and also to the Scripture it selfe Deut. 18. from whence Dionysius tooke his light to divide Parishes and dispose of Tythes as hee did by which it was not lawfull for him that paid his Tythes to pay them to what Priest or Levite Thus much we have set downe concerning the Generall Curse not hoping to fright any man into devotion with this black Sentence or to propose such distempered pietie for an example but that it might bee considered how horrible a crime it was in our Forefathers account to rob the Church in the least particular And indeed they conceived no more hope of a man that died under this Damnosum Theta than of him that dyed in a mortall sinne nay much lesse for the Canterbury Booke saith that many Clerkes preuen at the day of dumme wuld our Lady Saint Mary and Saint John Baptist and all Saints that bene in heauen knele downe at once before the blessed face of Almightye God they shulen not in that tyme thorowe the prayer of them all deliver the Soule of man or woman that dyeth in deadly sinne c. And if the day of dumme shall be so heard to all thoe that dyen in any deadly synne by all reason full myche harder shall it be at that tyme with all those that bee founden openly cursed of God and of holy Church c. Thus we see what furies followed this Sacriledge in the opinion of our Forefathers who were so confident that a Church-robber could not escape the Judgement of God that they delivered him over to Satan or as they say cursed him with the More and with the Lesse Curse with Bell Booke and Candle The Clergie of the present time gives better language than thus what cause they may have I will not say It may bee accounted for wisdome that their injuries cannot bee judged by their clamours yet the Ages to come must not say that these things were done Nobis dormientibus The experience of the Emperours Charles the Great and Lewis the Godly would be noted to this purpose out of their Capitulars Novimus say they multa Regna Reges eorum propterea cecidissè quia Ecclesias spolia verunt résque earum vastaverunt abstulerunt alienaverunt vel diripuerunt Episcopisque Sacerdotibus atque quod magis est Ecclesus eorum abstulerunt pugnantibus dederunt quapiopter nec fortes in bello nec in fide stabiles fuerunt nec victores extiterunt sed terga multi vulneratt 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 plures interfects vexterunt regnaque regionem quod peâ—us est regna coelesta perdiderunt atque proprus haereditatibus caruerunt hactenus carent So they in the 7. Book of the Capâ—â—ul c. 104. fol. 214. Edit Paris 1603. Whereas the Capitular attributeth those grand enormities their ill successe to the Kings of that time it is not now to be so understood Farre be it ever from us to thinke otherwise than divinely of these our most Religious Princes by whose gratious protection the Church hath bin of late so miraculously blest As for others among us they may apply this to themselves as they shall be troubled with cause and occasion The great Impostor in his Alcoran though he cozened all the world besides yet he would not defraud the Church De Decimis sume saith he inde secundum morem consuetum operare Inscus te subtrahe semper So our Robert of Reading translateth But hee that reades Roberts Translation must not alwayes thinke he reades he Alcoran The Prophets owne text is in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Surato laaraph which in our manuscript Alcorans is the 8. c. the 17. in Roberts Translation 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is Give command concerning Tythes and beware of Clownes the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 may bee otherwise understood but if this were not Mahumet's meaning the matter is not great for we have better Prophets to preach this Doctrine him liked but hee must pay them to the Priest or Levite that dwelt in the place where himselfe made his abode but yet this libertie that was given them by the Councell then gave cause unto the errour that the Common Lawyers hold at this day not knowing the ancient proceedings of the Church in these cases that before the Lateran Councell it was lawfull for every man to give his Tythes to what Church he would which was so farre otherwise as that before this violence offered unto the Church there was a flat Canon more ancient than the fact of Charles Leo 4. 13. 9. 1 c. Eccl. Martellus which did precisely forbid any man to pay or a Bishop to give leave to any man to pay his Tythes from the * The Rites of Baptisme in the primitive times were performed in Rivers and Fountaines where the persons to be baptized stood up and received that Sacrament therefore it is that the Sonne of Azalkefat in the Arabick Gospels useth the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Amada to baptize which word also beareth the same sense in the Syriack and is often mentioned by Patriarch Severus in his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Order of baptizing the Saints The reason in both Dialects is the same for that the word Amada is by the Syrians and Arabians derived from the Hebrew Amad which signifieth to stand up This manner of baptizing the ancient Church entertained from the example of our Saviour who baptized Iohn in Iordan And some say that this was very tolerable in those Easterne parts but certaine it is that it was most coÌ„venient for that time because their Converts were many and men of yeares A reason also may be for that those ages were otherwise unprovided of Fonts and such conveniences which are now in use and this hath beene a cause why this manner of baptizing was resum'd in after-times and other places for our venerable Bede telleth us of some that were baptized heere in England in the River Swale which runneth through a part of Yorkeshire in the North Riding and hee giveth the same reason Nondum enim Oratoria vel Baptisteria in ipso exordio nascentis thi Ecclesia poterant adificari Ecclesiast hist lib. 2. cap. 14. The dayes we now live in have no other remainder of this Rite of Baptizing in Rivers and Fountaines than the very name for hence it is that wee call our vessels that containe the water of Baptisme Fonts or Fountaines This custome of Baptizing in Rivers and Fountaines being discontinued Fonts were erected in private houses but the violent persecutions of those times barr'd the Christians of that convenience therefore their next recourse was to woods and devious places and there they accommodated themselves with such Baptisterials as they could In more
other things of like nature are and the Statute comes in derogation of their ordinary course as in this case great timber anciently was no lesse tytheable than small trees are and so by nature ought to be if the Statute were not to the contrary yet notwithstanding these limitations of the same if great wood bee cut downe to any other use than to sale as to build or to burne to a mans owne use a prohibition in this case lyeth and yet is there no Identitie of reason to extend it nor any absurdity would follow if it were not extended for here is neither money sought which gave occasion unto the Law-givers to make this Statute of exemption neither is it an unnaturall thing for to pay Tythes of great wood for before this time they were paid and by the Law of God it seemes they ought to bee Gal. 6. 6. paid for that he that is taught ought to communicate to him that teacheth him in all things and therefore since the reason that moved the Law-givers to order it so in one case ceaseth in the other there is no reason of exemption and when there is not an Identitie of reason in the things that are in demand there can no sound inference be brought in from the one to the other for of severall things there is a severall reason and a severall consequence neither can there bee framed thereof a good implication either positively or remotively neither hath this interpretation of theirs any warrant of Law for it save that it hath beene so defined and decided but what is that to the purpose if it hath beene wrested and wronged contrary to the true sense of the Statute and that by those that take benefit thereby whose partiality being taken away the thing it selfe would easily turne againe to his owne nature and right would take place The reason they yeeld for the exemption of great woods of the ages aforesaid although to themselves it be plausible yet to others it is strange as namely that great Trees are Plowd in Soby contra Molyns part of the Free-hold and that men use not to pay Tythes of their free-hold but of those things which spring out of their free hold as out of Corne Grasse Fruit and such other whereas indeed the tallest Timber tree that is if it were as high as the highest Cedar in Lebanon is no more part of the inheritance or free-hold than the lowest bramble that groweth in the field for they are both equally part of the ground wherein they grow and doe take alike nourishment and sustenance from the same neither doe they differ in that they are trees the one from the other secundùm magis minus as the Logicians say but in that the one is a great tree and the other a small shrub and the cause of this provision here in England for these great trees was not for that one was more of the inheritance than the other but for that the one yeeldeth more profite to the common-wealth than the other and therefore they have made the cutting downe of the one more penall than the other as in like case by the Civile Law whosoever privily cutteth downe or barketh a Vine an Olive or a Fig-tree or doth ff Arborum furtim caesarum toto tit any other unlawfull act whereby any fruitfull tree or any Timber tree doth perish and decay it is Theft and it is punished in the double value of the hurt which is done and if he be Tenant to the ground which hath done this villany he loseth his hold which commeth not of that that one kinde of Tree hath more state in the ground than an other hath but that the Law hath respected the necessary use of the one more than the other By the Civile Law although this word Wood be generall L. Ligni appellatione de Leg. 3 et L. Carbonum ff de verb. significat yet it is thus distinguished that some is wood some is Timber which the Law cals Materia Timber is that which is fit to build or underprop withall Wood is whatsoever is provided for fewell so that under that name there passeth Reed Cole Turfe Cow-dung and whatsoever is any L. Ligni appellatione §. Ofiliu◠§. idem ff de lega◠〈◊〉 where ordinarily used for fewell Timber is of a higher consideration than wood is insomuch as if a man bequeath unto an other all his wood that is in grove field there shall not passe by this legacie such Trees as are cut downe for Timber but if they were dotterd Trees or the owner thereof purposed them for fewell and so cut them out into billet or fagot in such sort as there could be no other use thereof than to burne then it is otherwise for by this meanes of great wood it is become small wood as being cut out in shides or splinters fit for to burne So that in the reckoning of the Civile Law Timber stands not onely in the nature of the wood it selfe but is in the destination and purpose of the owner who according to his good liking may make that wood which is fit for timber fire-wood or timber which if it were so in account with the great Lawyers of this Land the Church should have more Tythes of Wood appointed for fewell and lesse suite for the same As they exempt the bodies of great Trees above xx Plowd ut supr yeares growth from payment of Tythes so also they free the boughes thereof upon this reason that the boughes thereof are fit and serviceable for building which although happily may be in some of them that are next to the Trunck of the tree yet it is farre otherwise in those that are more remote from the same whereof there can bee no other use than to burne and therefore the Law precisely holds in case where wood is bequeathed by which is meant fire-wood onely unlesse the Testator otherwise expresse his minde the lops of timber trees which the Law cals Superamenta L. Ligni Appellat §. Ofilius De Leg. Fod 3. materiarum are bequeathed for that the lops have not that use that the Timber hath that is to build or prop up withall but they serve to burne onely By which severall ends there is severall consideration and account made of them Neither is it to the purpose that they alledge for the defence hereof that the accessorie followeth the nature of the principall for that rule is not true in every accessory L. Etsi C. de Praediis minorum but onely in such wherein is the like reason as in the principall which in the trunck and lop of a tree cannot bee alike for building Further how the Boughes of a tree that are of the same substance as the body of the tree is should be accessories to the tree I see not for nothing can bee an accessory to an other that is of the same nature and substance as the other is as the
which hee had from his cradle or hath happened to him by any accident without any default of his and cannot be easily remedied or reprocheth him with any thing in his state or condition wherewith hee is not justly to be charged neither is there any just cause offered the diffamer why hee should use such disgracefull speeches against the other then is it altogether punishable For that such things tend onely to contumelie and despite which the Law seeketh by all meanes to represse for that thereby charitie betweene man and man is violated and the peace of the Common-wealth is many times broken and disturbed The proceeding in these causes in the Civile Law was of two sorts for it was either ad publicam vindictam or else ad privatum interesse as the partie injuried made his choice thereof Ad publicam vindictam was when the partie Diffamed ff ad L. Corneliam l. in constitutionibus §. ult sought to have the Diffamer recant his words or to undergoe some open and infamous punishment for his rash and malicious speeches whereby it might be publikely knowne abroad that he did the other wrong But Ad privatum interesse was when hee sought not the ff de verborum obligation l. stipulationum §. planè ff de rejudicat L. si quis ab alâ—o recalling of the slaunderous speeches which were given out against him but esteemed his credit at some great rate as that hee would not for a thousand pounds or more or lesse quantitie according as the worth and calling of the person is have had such speeches gone out of him and so seekes to have his credit salved by recompence in money as the Judge or Jurie upon proofe of his worth and place shall esteeme it and taxe it In these actions hee that sued ad publicam vindictam and had followed so farre as that he had brought it to a Recantation or a publike disgrace could not have recompence of his credit by money save onely in case of commutation neither hee that had got his credit valued by money could have a publique disgrace also inflicted for his satisfaction but what way hee had chosen with that he must have rested contented for that irefull mens wraths otherwise would never have beene satisfied and the prosecution of these actions otherwise would be confounded These two kindes of proceedings the Princes and Sages of former ages seeme to have sorted to the two kindes of Jurisdiction that are amongst us the one Spirituall the other Temporall and therefore the Law of the Land it selfe saith in a cause of Diffamation when money is not demanded but a thing done for punishment of sinne which is all one as when the Civilians say when it is done ad publilicam vindictam it shall be tryed in the Spirituall Courts whereupon by argument of contrary sense it followeth that where the punishment of sinne is not required but amends in money is demanded there it is to be tryed in the Temporall Court for the Law would that â—â—ery man should have his remedie agreeable to reason in what sort him best liketh And therefore be the fault what it may be that the words of the Diffamation do sound unto as long as it stands but in words and the partie doth not take upon him to justifie the matter that is comprised under those words and doth seeke but for the punishment of the slanderous words onely so long it is to be tried at the Spirituall Law for the Law speaketh in generall in cases of Diffamation where punishment of sinne onely is required so that where a man is called Traitor Felon or murtherer or any other crime belonging unto the Common-Law being every one of them words of great diffamation so the partie therein seeke punishment onely and not his private interest there the Spirituall Law is to hold plea thereof For where the Law doth not distinguish there neither ought wee to distinguish but the Law hath said in generall that causes of Diffamation whose prosecution is thus qualified do belong unto the tryall of the Spirituall Law and therefore even those cases before remembred where the partie followeth this kinde of prosecutions ought by that Law to belong unto the Spirituall Court as on the contrarie side Spirituall causes of Diffamation being propounded to a pecuniarie end ought to be ordered in a Temporall Court But where any man takes upon him to justifie the crime that hee hath objected there either Court is to hold plea of the crime that properly belongeth to that Court for that now words are no longer in question but matter is in tryall whether the partie diffamed hath indeed committed that offence that he is charged withall or no which can be tryed in no other Court than in that to which it doth properly appertaine And that this was the course anciently held in matters of Diffamation betweene the Ecclesiasticall and Common Law it is manifest by the Statute of 2. of Edward 2. Edw. 3. c. 11. the 3. chapter 11. where although the Statute taxeth the perverse dealing of such who when they had beene indicted before the Sherifes in their Returne and after delivered by Inquest before the Justice of the Assise did sue the indictors in the Spirituall Court surmising against them that they had diffamed them and therefore in that case forbad the like suits for that justice thereby was hindered and many people were feared to indict Offenders yet that Statute plainly sheweth that in all other cases of Diffamation rising out of Temporall crimes beside this the Ecclesiasticall Law had the cognisance and that this was forbidden it was not for that words of this nature could not be censured at the Ecclesiasticall Law when punishment of sin onely is required but for that it was not fit that those things which had beene once ordered in one Court should be called againe to examination in another and therefore the generall proceeding in matters of Diffamation is not there prohibited but the particular crossing of matters after judgement is there reprehended So that the distinction whereof I formerly spake which taketh upon it to determine when a case of Diffamation is of the Temporall cognisance and when of the Ecclesiasticall cannot here take place for that it is contrary to the former Statute or Decree that divided these cases into Temporall or Ecclesiasticall cognisance by the varietie of the prosecution thereof and that it is contrarie to the ancient practise that hath confirmed this prosecution in either Court but especially in the Ecclesiasticall Court which hath still holden the triall of such Diffamations wherein sin hath bin only sought to be punished untill now of late that men have stept over the bankes of theirauthoritie and confounded either Jurisdiction with the promiscuous acts one of another when as the Statute it selfe is plaine that the Authors of this Statute or Decree whethersoever you call it which set these bounds to either Law in proceeding upon matters of Diffamation
respected not so much the qualitie of the crime upon which the Diffamation grew as the manner of proceeding therein ayming in the one at publique vendict which is to be sought out of the Ecclesiasticall Law and in the other at private interest which is to be had out of the Temporall Law Neither is an Action of Diffamation a matter of so light esteeme or qualitie a mans fame or good name being in equall ballance with his life as that it should be drawne away to be attendant on any other action that is of smaller weight or importance than it selfe is for this is one of those Actions which for the speciall preheminence thereof are called Actiones praejudiciales that is such that draw smaller causes unto them but themselves are drawne of none other but such as are like principall or greater than themselves are So that unlesse the manner of proceeding bring these causes under the compasse of the Common Law in such sort as I have before shewed the coupling of them with another matter of the same Law will hardly bring them under the triall thereof for that there be few actions greater then it selfe is so that if the crime be Ecclesiasticall howsoever it toucheth a Temporall cause the tryall shall be still at the Ecclesiasticall Law And the same that I say of Diffamations rising out of Ecclesiasticall crimes I hold also to be true in Diffamations springing out of Temporall crimes where punishment is required for the offence committed and amends in money is not demaunded unlesse happily that grow of penance injoyned which the offender will redeeme by giving money to the Judge or to the partie grieved And this I take to be a farre better limitation for either Law having the ground of the Civile Law and a Statute of the Common Law and common reason it selfe for it than the other divise is which so distinguisheth this businesse as still it makes it rest in the mouth of the Judge which cause of Diffamation is meere spirituall and which not which were not to be done if there were cleare dealing in the matter for Lawes are so to be made as that as little as may be be left to the discretion of the Judge but all be expressed as farre as the nature of the cause vvill give leave vvhich albeit it be hard to doe for the varietie of the cases that every day happen never thought on before yet that is to be laboured so farre as may be for this libertie of leaving many things to the Judges discretion is many times great occasion of confusion in Judicature saying sometimes this and sometimes that as his private humor shall lead him and therefore a plaine distinction betweene both the Lawes vvere best that every man may see and say vvhat is proper to either of them SECT 2. That the suit of Bastardie as well in the principall as in the incident belongs unto the Ecclesiasticall Law ANd thus farre as concerning matters of Diffamation Now followeth that I speake of matters of Bastardie Bastardie is an unlawfull state of birth disabled by divine and humane Lawes to succeed in inheritance Of Bastards some are begot and borne of single women in which ranke also I put widowes some other of married women Of single women some are such as a man may make his wife if himselfe be sole and unmarried as those that are kept as Concubines in place of a mans wife some other are such as a man cannot make his wife although himselfe be sole and unmarried for that either they are already precontracted to some other or that they be in so neere a degree of affinitie or consanguinitie one to the other that the marriage would be damnable the issue thereof unlawfull Of such as are begotten of single women by single men who are in case to marrie them if they will some are called by the Civile Law Filii Naturales because they were begot by such as they held for their wives and yet were not their wives who might be legitimate by sundry waies as hereaster shall be shewed Some other begot of single women if they were begot in vage lust without any purpose to hold such a one for a Concubine but upon a desire only to satisfie a mans present lust whether they were begotten by married men or single men were called Spurii vvho for the most part are putative children and their father is not otherwise knowne then by the mothers confession vvhich sometimes saith true sometimes otherwise Isidore saith they vvere so called because they were borne out of puritie for that such kinde of lust is contrary to holy Matrimonie whose bed is undefiled and therefore the other is corrupt and abominable But where any was borne of a woman single or married that prostituted her selfe to every mans pleasure and made publike profession of her self to be an harlot such as they are whom the Law calleth Scorta these were called Manzeres Those which were begotten of married women were called Nothi because they seemed to be his children whom the marriage doth shew but are not no otherwise than some feavers are called Nothi that is bastard feavers because they imitate the tertian or quartan Feaver in heat and other accidents but yet are neither tertians nor quartans as the learned Phisicians well know but these are counted so to bee bastards if either the husband were so long absent from his wife as by no possibility of Nature the childe could bee his or that the Adulterer and Adulteresse were so knowne to keepe company together as that by just account of time it could not fall out to be any other mans childe but the Adulterers himselfe and yet in these very cases within this Realme unlesse the husband be all the time of the impossibility beyond the Seas the Rule of the Law holds true Pater is est quem nuptiae demonstrant The most nefarious and last kinde of Bastards are they whom the Law calleth Incestuosi which are begot between Ascendents Descendents in infinitum and betweene Collaterals so farre as the Divine Prohibition and the right interpretation thereof doth stretch it selfe The effects of these sorts of Bastardies are divers First it staineth the bloud for that hee that is a Bastard can neither challenge Honour nor Armes from the Father or Mother for that he was begot and borne out of Matrimony which is the first step to Honour and therefore the Apostle calleth Marriage honourable whereupon it must H 〈…〉 13. 4 follow that the opposite thereof is shame for albeit it bee no sinne for a Bastard to be a Bastard yet is it a defect in him to be such a one and a thing easily subject to reproach Secondly it repelleth him that is a Bastard from all succession descending from the Father or the Mother whether it be in Goods or Lands unlesse there bee some other collaterall provision made for the same for that all such Lawes and Statutes as are made
goods and lands but newes being after brought that the said Ralphe was dead beyond the Sea Francis the Brother of the said Ralphe spoyled the said Richard of the possession of all the goods and lands he had of the said Ralphe his Grandfather for that he did pretend the said Agatha his Niece and Mother of the said Richard was not borne of lawfull Matrimonie so that neitheir shee her selfe nor her sonne ought to succeed the Brother of the said Francis but that the inheritance thereof did belong unto himselfe whereupon the said Richard being thus spoyled by Francis his great uncle obtained Letters of restitution to the Bishop of London the B. of Worcester and the B. of Excester under 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 understanding by the said Delegates that the plea of inheritance within this Realme did not belong unto the Church but unto the King recall'd that part of his rescript which concerned the restitution of the said Richard to his inheritance and gave order to the foresaid Bishops to proceed 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 when she dwelt and cohabited with him as with her husband or whether the said Ralphe Father of the said Agatha kept the said Aneline openly and publickly while the said Allin yet lived And if they found it to be so then they should pronounce her the said Agatha to bee a Bastard for that Anelina her Mother could not bee counted to bee a wife but a whore which defiling her husbands bed presumed to keepe company with an other her husband yet being alive 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 Ralph and Aneline as the Decretall it selfe shewes Neither was there any authoritie that opposed it selfe against that proceeding but held it to be good and lawfull though it were in terme of speciall Bastardie for then that which they now call speciall Bastardie was not borne Besides hereby it appeareth that the Ordinaries then did not onely proceed in cases of Bastardie incidently that is when a suit was before begun in the Common Law upon a triall of inheritance and that by writ from the Temporall Courts but even originally and that to prepare way unto inheritance or any other good that was like to accrue unto a man by succession or to avoid any inconvenience that might keepe him from promotion as may appeare by this practise following Priests in the beginning of the Raigne of Henry the 3. Constitut Otho innotuit de uxoratis à benefic 〈…〉 amovendis yet married secretly and their children were counted capable of all inheritance and other benefits that might grow unto them by lawfull marriage so that they were able to prove that their parents were lawfully married together by witnesses or instruments which many children did either upon hope of some preferment that by succession or otherwise was like to come unto them or to avoid some inconvenience that otherwise might light upon them for the want of that proofe some their parents yet living others their parents being dead and the proceedings before the Ordinary was holden good to all intents and purposes even in the Common Law for otherwise they would not have so frequented it for as yet there was made no positive Law against marriages of Priests and Ministers but the Church of Rome then plotting against it for that by that they pretended the cure of Soules was neglected and the substanc of the Church wasted and dissipated did by Otho then Legate à Latere to Gregory the ninth order by a Constitution that all such Ministers as vvere married should be expelled from their Benefices and their Wives and Children should be excluded from all such livelihood as the Fathers had got during the time of the Marriage either by themselves or by any middle person and that the same should become due unto the Church wherein they did reside and that their children frō that time forth should be disabled to injoy holy orders unlesse they were otherwise favourably dispensed withall which Constitution although it wrought to that effect to barre Priests for that time of their Marriage untill the light of the Gospell burst out and shewed that that doctrine was erronious yet to all other effects the proceeding 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 hee 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 farre as concerning those things wherein the Ecclesiasticall Laws are hindered by the Temporall in their proceedings contrary to Law Statute and custome anciently observed which was the third part of my generall division Now it followeth that I shew wherein the Ecclesiasticall Law may be relieved and so both the Lawes know their owne bounds and not one to over-beare the other as they doe at this day to the great vexation of the subject and the intolerable confusion of them both which is the last part of this Treatise PART IV. CHAP. I. SECT 1. The meanes how to relieve the Civill Law that they are of two sorts that two things are required to the first meane and that the former of these is the right interpretation of Lawes and what that is THe meanes therefore to relieve the profession of the Civile Law are two The first is by the restoring of those things which have beene powerfully by the Common-Law taken from them and the bringing of them backe againe unto their old and wonted course The other is by allowing them the practise of such things as are grievances in the Common-wealth and fit to be reformed by some Court but yet are by no home-Law provided for The first of these stands in two things whereof the one is the right interpretation of the Lawes Statutes and customes which are written and devised 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 defective in the penning made in the behalfe as it is pretended of the Ecclesiasticall profession but yet by reason of the unperfect pe 〈…〉 g thereof are construed for the most part against them The right interpretation of the Law Statutes and Customes pertaining to the practise standeth as is pretended in the Judges mouth who notwithstanding hath that authoritie from the Soveraigne and that not to judge according as him best liketh but according as the right of the cause doth require The supply or
reforming of that which is over-plus or defective is in the Parliament so notwithstanding as that the Prince evermore breatheth life into that which is done Lawes Statutes or Customes are then best interpreted when as the very plaine and naturall sense of them is sought after and no forraine or strained exposition is mixt with them for that turneth justice into worme-wood and judgement into gall then that the Judge be not too subtill in his interpretation but follow such exposition of the Lawes as men of former age have used to make if they be not plainly absurd and erronious for oft shifting of interpretations breedeth great variance in mens states among such as have busie heads and much discrediteth the Law it selfe as though there were no certaintie in it with which although the fage Judges of our time cannot be charged for ought that I know yet I cannot tell how men much complaine that Lawes are farre otherwise construed in these daies than they were in former ages which as it is an ordinarie complaint in the Temporall Courts so it is not without cause much lamented at the Spirituall Court where the interpretation upon the three Statutes of Tythes made by King Henry the eight and Edward his sonne among other inconstancies of other Lawes hath such great varietie of sense and understanding in sundrie points thereof as that if the makers thereof were now alive and the first expositors thereof sate in place of Judgement againe the Statutes being measured by the interpretation they now make of them vvould hardly acknowledge them either to be the Statutes that they then made or the other did after expound and declare for every of these Statutes and the sense that was given of them vvas wholy for the benefit of the Church according to the tenor thereof but as they now receive explication they are not onely not beneficiall unto the Church but the greatest hinderance to the same that may be for the words are made to jarre with the sense and the sense vvith the vvords neither is there kept any right analogie in them and therefore the Reverend Judges are to be intreated because they challenge unto themselves the opening of the Statutes alone albeit peradventure that be yet subjudice where the Statute of Ecclesiasticall causes is to be interpreted that they would recall such exorbitant interpretations as have of late gone abroad upon these Statutes and restore them to their ancient sense and understanding No man can so cunningly cloake an interpretation but another will be as cunning as hee to spie it out and then the discredit will be the Lawes Lib. 1. Politâ—â— A small errour saith Aristotle in the beginning is a great one in the end and hee that goeth out of the way a little the longer he goeth on the further he is off from the place his voyage was to and therefore the speedier returne into the way againe is best The old Proverbe is He that goeth plainly goeth surely which may be best verified in the exposition of the Law if any where else for commonly men offend no where more dangerously than under the authoritie of the Law and therefore one saith very well that There are two salts required in a Judge the one of knowledge whereby hee may have skill to Judge uprightly the other of conscience whereby hee may be willing to judge according to that as his skill leadeth him unto both which being in the grave Judges it is not to be doubted but they will be easily induced to review their owne and their predecessours interpretations and reduce such exorbitant expositions as have scaped out thereof unto the right and naturall sense thereof which if perhaps they shall be loath to do for because it makes for them or for some other like partiall respect then humble supplication is to be made unto his Majestie that hee himselfe will be pleased to give the right sense of those things which are in controversie betweene both the Jurisdictions for his Majestie by communicating his authoritie to his Judge to expound his Lawes doth not thereby abdicate the same from himselfe but that hee may assume it againe unto him when and as often as hee pleaseth Whose interpretation in that is to be preferred before theirs first for that his interpretation is impartiall as hee that will not weaken his left side to make strong his right for so are these jurisdictions as they are referred unto his politique bodie but will afford them equall grace L. 1. num 8. C. de legibus L. 1. num 7. C. codâ— omnes populi ff de justit jure and favour that hee may have like use of them both either in forraigne or domesticall businesse as occasion shall serve then that his Judges interpretation maketh right onely to them betweene whom the cause is but his highnesse exposition is a Law unto all from which it is not lawfull for any subject to recede neither is it reverseable by any but by himselfe upon a second cogitation or him that hath like authoritie as himselfe hath and therefore most fit to be interposed betweene Jurisdiction and Jurisdiction that the one partie be not Judge against the other in his owne cause which is both absurd and dangerous And let this suffice for the right interpretation of Lawes and Statutes Now it followeth that I speake something of the supplies that may be made to the defects that are in the same SECT 2. The second thing required to the first correcting of superstition and supplying of defective Statutes IT is not to be doubted but it was the full minde and intent of the Lawmakers which made those three Statutes to infeoffe the Ecclesiasticall Courts in the inheritance of all those causes that are comprised in those Statutes save those that are by speciall name exempted and that they did by the said Statute as it were deliver unto them full and quiet possession of the same for even so sundrie branches of the said Statute do shew as I have elsewhere made it manifest and that there hath growne question upon many points thereof and that the professours of the Ecclesiasticall Law have beene interupted in the quiet possession thereof commeth of the unperfect penning of the same and not of any just title or claime that may be made by the professours of the other Law thereunto but this is a thing not onely proper to these three Statutes but also common to all other Statutes which are writ of any Ecclesiasticall causes within this Land which notwithstanding may be remedied if it seeme good unto his sacred Majestie and the rest of the wisedome of the land assembled together at any time for the making of wholsome Lawes and the reforming of the same by supply of a few words in some places or periods that are defective and yet keeping the true meaning and sense of the same As for example in the Statute of the two and thirtieth of Henry the eight in the §