somtimes at Rome in Italy somtimes at Avignion in France sometimes in other places as by the date of the Bulls and other processe of that age may be seene which severall removes of his gave occasion to the Parliament of inserting the word Elsewhere in the body of those Statutes that thereby the Statutes providing against Processe dated at Rome they might not bee eluded by like Processe dated at Avignion or any other place of the Popes aboade and so the penaltie thereof towardes the offender might become voyde and bee frustrated Neither did the Lawes of this Land at any time whiles the Popes authoritie was in his greatest pride within this Realm ever impute a Praemunire to any Spirituall Subject dealing in any Temporall matter by any ordinary power within the Land but restrained them by Prohibition onely as it is plaine by the Kings Prohibition wherein are the greatest matters that ever the Clergie attempted by ordinary and domesticall authority and yet are refuted onely by Prohibition But when as certaine busie-headed fellowes were not content to presse upon the Kings Regall jurisdiction at home but would seeke for meanes for preferment for forrain authority to controule the Judgments given in the Kings Courts by processe from the Pope then were Praemunires decreed both to punish those audacious enterprises of those factious Subjects and also to check the Popes insolencie that hee should not venter hereafter to enterprise such designments against the King and his people But now since the feare thereof is past by reason all entercourse is taken away betweene the Kings good Subjects and the Court of Rome it is not to bee thought the meaning of good and mercifull Princes of this Land is that the cause of these Statutes being taken away the effect thereof should remain and that good and dutifull Subjects stepping happily awry in the exercise of some part of their jurisdiction but yet without prejudice of the Prince or his Regall power shall bee punished with like rigour of Law as those which were molesters greevers and disquieters of the whole estate But yet notwithstanding the edge of those Praemunires which were then framed remaine sharpe and unblunted still against Priests Jesuites and other like Runnagates which being not content with their owne naturall Princes government seeke to bring in againe that and like forraine authoritie which those Statutes made provision against but these things I leave to the reverend Judges of the Land others that are skilfull in that profession onely wishing that some which have most insight into these matters would adde some light unto them that men might not stumble at them and fall into the danger of them unawares but now to Prohibitions SECT 2. The impeachment thereof by Prohibition and what it is A Prohibition is a commandement sent out of some of the Kings higher Courts of Records where Prohibitions have beene used to be granted in the Kings name sealed with the seale of that Court and subscribed with the Teste of the chiefe Judge or Justice of the Court from whence the said Prohibition doth come at the suggestion of the Plaintife pretending himselfe to be grieved by some Ecclesiasticall or marine Judge in not admittance of some matter or doing some other thing against his right in his or their judiciall proceedings commanding the said Ecclesiasticall or marine Judge to proceed no further in that cause and if they have sent out any censure Ecclesiasticall or Marine against the Plaintife they recall it and loose him from the same under paine of the Kings high indignation upon pretence that the same cause doth not belong to the Ecclesiasticall or Marine Judge but is of the temporall cognisance and doth appertaine to the Crowne and dignitie Of Prohibitions some are Prohibitions of Law some other are Prohibitions of Fact Prohibitions of Law are those which are set downe by any Law or Statute of this Land whereby Ecclesiasticall What are Prohibitions of Law Courts are interdicted to deale in the matters therein contained such as are all those things which are expressed in the Kings Prohibition as are also those which are mentioned by the second of Edward the sixth where Judges Ecclesiasticall are forbid to hold plea of any matter contrary to the effect intent or meaning of the Statute of W. 2. Capite 3. The Statute of Articuli Cleri Circumspectè agatis Sylva Caedua the treaties De Regia Prohibitione the Statute Anno 1. Edwardi 3. Capite 10. or ought else wherein the Kings Court ought to have Jurisdiction Prohibitions of fact are such which have no precise word or letter of Law or Statute for them as have the other but What are Prohibitions of fact are raised up by argument out of the wit of the Devisor These for the most part are meere quirks and subtilties of law and therefore ought to have no more favour in any wise honourable or well ordered Consistorie than the equity of the cause it selfe doth deserve for such maner of shifts for the most part breed nought else but matter of vexation and have no other commendable end in them though they pretend the right of the Kings Court as those other Prohibitions of the Law doe but the Kings right is not to be supposed by imagination but is to be made plaine by demonstration and so both the Statute of the 18. of Edward the third capite 5. is where it is provided that no Prohibition shall goe out but where the King hath the cognisance and of right ought to have and also by the fore-named Statute of Edward the sixth which forbids that any Prohibition shall be granted out but upon sight of the libell and other warie circumstances in the said Statute expressed by which it is to be intended the meaning of the Law-givers was not that every idle suggestion of every Attourney should breed a Prohibition but such onely should bee granted as the Judge in his wisdome should thinke worthy of that favour and if right and equitie did deserve it although as I must needs confesse the Statute is defective in this behalfe for to exact any such precise examination of him in these cases as it is also in other points and is almost the generall imperfection of all Statutes that are made upon Ecclesiasticall causes but I feare mee as emulation betweene the two Lawes in the beginning brought in these multitudes of Prohibitions either against or beside law so the gaine they bring unto the Temporall Courts maintaineth them which also makes the Judges they cesse not costs and damages in cases of consultation although the Statute precisely requires their assent and assignement therein because they would not deterre other men from suing out of Prohibitions and pursuing of the same The Prohibitions of the law as have beene before shewed are neither many nor much repined at because they containe a necessary distinction betweene Jurisdiction and Jurisdiction and imply the Kings right and Subjects benefit but the
else but robberie and bloud-shed or they are so termed of the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is of their wandring up and downe and resting in no place but coasting hither and thither to doe mischiefe A Pirate is a Sea-thiefe who for to enrich himselfe either by subtilty or open force setteth upon Merchants and others trading by sea ever spoyling them of their loading if they get the upper hand and somtimes bereaving them of their life and sinking of their ships The proceeding of these Criminall matters is by accusation and information and after by triall of twelve men upon the evidence according to the lawes of this land and the lawes of the ancient Feudes of Lombardie where the like triall is and from whence it seemeth this of ours was first derived But here must wee note that matters of reprisals are no piracies although many times there fals out no lesse outrage in them for spoyling and slaying of men than doth in the other for that Reprisals are done by the Princes commission granted to the subject for redresse of some injurie done to himselfe or his subject by some other forreine Prince or subject and amends hath beene required by law and cannot be had whereupon licence is given to the subiect to releeve himselfe by what way he can against the other Prince or any of his subiects by taking so much goods of his as himselfe was indamaged which course is held among Princes the rather to afford Justice where it is lawfully demanded Bartol l. nullus num 2. C. de Judeis Coelicolis SECT 4. That the things which extraordinarily belong unto the Cognisance of the Civile Law are of three sorts and concerning the first which respecteth treaties betweene Prince and Prince ANd thus much of the causes which ordinarily doe belong unto the Cognisance of the Civile Law within this land Now it followeth that I speake somewhat of those things wherein the Civile Law dealeth incidently and by authoritie of the Prince is not the ordinarie object of the Civile law howsoever otherwise they cannot be handsomly dealt in but by such as have the skill of the Civile Law Whereof there be three sorts the first is matters of forrein treatie betweene one Prince and another the second is the ordering of martiall causes whether they be Civile or Criminall in an Army the last is the Judgements of Ensignes and Armes and the decisions for challenges of rights of Honour and precedencie where any of them is in controversie For the first whereas all other Nations in compasse round about us be governed by the Civile Law and treaties are to be decided by Law both for those things which are in question and to be concluded by Law and for those things which are determined by consultation and agreed upon who is thereto to be chosen rather than a Civilian to whom their law is knowne as well as to themselves and if perhaps he understand not their language yet hee understandeth that language wherein the lawes themselves are written and is the fittest tongue for treatises betweene Princes and Princes because it is a common tongue to the learned of all the West part of the world and thereby every Prince shall reteine his owne Majestie in parlying as it were in his owne language and not be forced to speake in an other Princes tongue which no doubt is a great disadvantage to him that shall treat for that every Nation hath some proper Idiom not so well discerned by the booke-speaker as perceived by the Natives of the countrey where it is spoken and wherein a stranger may easily be deceived How much forreine Princes doe esteeme of the skill of a Civilian in these matters it may be understood thereby that they never for the most part send any Embassage for the treatie of any league or matter of commerce but that one or moe of them are Civilians And if the care of these things be so great with them surely the estimation of the same ought not to be light with us for by what lawes their leagues and negotiations use to bee directed by the same must ours bee ordered so that for that point one kinde of learning must serve for both for that otherwise one Nation will not be convinced by the other what their capitulations are Surely such as over and besides their owne experience have the knowledge of the Civill Law have herein a double helpe above another man that wanteth the same First their owne understanding which for the most part is of like proportion as other folks is Then the skill of the Lawes themselves which are a quintessence of wit above other humane learning and were either wholly composed of the mature and deliberate resolutions of such Emperours as then swayed the whole world or were the doomes judgments of such wise men as then managed the whole world and the affaires thereof under them But who when hee seeth a sword in it's scaberd knoweth whether it will cut or not although the forme thereof be a presumption that it will but doe but draw it out of the scaberd and try the blade thereof and then shall you see the sharpenesse of it I make no application hereof for that my meaning by my words may be well enough knowne But in these matters the wisdome of the State knowes best what is to be done and I onely remember what other Nations doe leaving the rest to their gravest considerations who by precedents of former times and men of experience furnished with exoticke tongues have carried this part of pollicie very well and safely hitherto but now to the or 〈…〉 g of Martiall causes SECT 5. What are Martiall causes which are the second extraordinary matter belonging to the Cognisance of the Civill Law with us MArtiall causes are either Civill or Criminall whereof both are determinable by the Civill law A Civill Martiall cause is where either the Captaine or the Souldier requireth some thing that is due and withholden from him as his stipend his apparell which among the Romans was due twice a yeare that is their Sommer apparell from the first day of April to the first of September and their Winter from thence to Aprill his diet which among the Romans was two dayes hard bisket the third softer bread one day wine an other day vineger one day bacon and two dayes mutton his priviledges either in cases of preferment as to be removed from one degree to another or in cases of immunitie as to be freed from all servile functions If. de re militari Câ—eod tit l. 12. ff de privilegio veteranorum de castrensi peculio C. eodemtit l. 12. C. de erogatione militaris annonae C. de vest militari and sundry other like which a diligent reader may gather out of the titles of the Digest and Code of militarie affaires and other like titles which accompany them Souldiers faults are either proper to themselves or
translate unto themselves matters of Marine triall if they be squared to these Rules of Fictions can bee maintained for first to speake of equitie which the Law requires in these manner of proceedings what equitie can it be to take away the triall of such businesse as belongeth to one Court and to pull it to an other Court specially when as the Court from whence it is drawne is more fit for it both in respect of the fulnesse of knowledge that that Court hath to deale in such businesse and also of the competencie of skill that is in the Judges Professours of those Courts correspondent to these causes more than is in the Judges and Professours of the other Courts for the deciding and determining of these matters For albeit otherwise they are very wise and sufficient men in the understanding of their owne profession yet have they small skill or knowledge in matters pertaining to the Civile profession for that there is nothing written in their Bookes of these matters more than is to be gathered out of a few Statutes of former time whose drift was not to open any doore unto them to enter upon the admirall profession but to preserue the Kings Jurisdiction from the Admirall incroachment as may by the said Statutes appeare whereas contrarily the Civile Law hath sundry titles included in the body thereof concerning these kindes of causes whereupon the Interpreters of the Law have largely commented and others have made severall Tractates thereof So that by all likelihood these men are more fit and better furnished to deale in this businesse than any men of any other profession as having besides the strength of their owne wit other mens helpes and labours to relie upon Besides this businesse many times concerns not only our owne countrey-men but also strangers who are parties to the suit who are borne and doe live in countries ordered by the Civile Law whereby they may bee presumed to have more skill and better liking of that Law than they can bee thought to have of our Lawes and our proceedings and therefore it were no indifferencie to call them from the triall of that Law which they in some part know and is the Law of their countrey as it is almost to all Christendome besides to the triall of a Law which they know in no part and is meere forraine unto them specially when the Princes of this Land have anciently allowed the Civile Law to be a Common Law in these causes as well to their owne subjects as it is to strangers Further the avocating away of causes in this sort from one Jurisdiction to another specially when the cause hath long depended in the Court from whence it is called insomuch as now it is ready for sentence or rather is past sentence and stands at execution cannot be but great injurie to the subject after so much labour lost and money spent in waste to begin his suit anew againe which is like to Sysiphus punishment who when he hath with all his might forced his stone up to the top of the hill and so is as himselfe hopes at an end of his labour yet the stone rowles downe again on him and so his second labour his strength being spent with the toyle of the first is more grievous than the former was which being semblably true in a poore Clyent who hath his cause in hearing there can be no equity in this fiction whereby a cause so neere ended should againe be put upon the Anvill as though it were still rough worke and new to be begun And surely as there is no equity in it so there is no possibility such a fiction should be maintained by Law for that it hath no ground of reason to rest his feete on For if this be granted that such a fiction by Law may be made then one of these absurdities must needes follow either that a shippe may arive in a place where no water is to carry it or if that it arive according to the fiction either the people their houses and their wealth shall be all overwhelmed in the water as the world was in Noahs Floud Ducalions Deluge and so no body there shall be left alive to make any bargain or contract with the Mariners Shipmen that arive there or that the people that dwell there shall walk upon the water as people doe on land which Peter himselfe was not able to doe but had suncke if Christ had not reacht his hand unto him and therefore far lesse possible for any other man to doe So that it may bee well said these things standing as they doe no such fiction can hold and that no action can be framed upon it for as there is no Obligation of impossible things so there is no Action of things that neither Nature nor Reason will afford to be done neither is it to the purpose that the maintainers of these fictions doe say that in this case the place where the contract is made is not considerable which I take to be farre otherwise for that when that themselves will convey a Marine cause from the Sea unto the Land they will lay it to bee done in some speciall place of a Countrie bee the place never so unproper for such an action for that the foundation of these actions is the place where they were done as namely that they were done in the body of such a Country or such a Country and not upon the maine Sea or beneath the lowest bridge that is upon any great river next the Sea And therfore in two emulous Jurisdictions when they are so divided as that one is assigned the sea the other the land the place of the action can in no sort be suppressed and another supplyed in the roome thereof Quod enim una via prohibetur alia via non est permittendum quod prohibitum est directo prohibetur etiam per obliguum for if this were granted then matter enough would bee offered to one Jurisdiction to devour up the other and the Law would be easily eluded which to restraine either of these Jurisdictions to their owne place and to provide that one in his greatnesse doe not swell up against the other hath set either of them their bounds and limits which they shall not passe which as it is the good provision of the Law so ought either Jurisdiction in all obedience to submit it selfe thereunto for that the diminishing of either of them is a wrong to the Prince from whom they are derived who is no lesse Lord of the Sea than hee is King of the Land and therefore in no sort such liberty must be allowed to the one directly or indirectly as that it should be a spoile unto the other which would easily come to passe if when as the Law alloweth not any man to sue a Marine matter by the ordinary course of the Lawes of this Land yet a man will follow it by an extraordinary But where there is an
the accidents 227 Titulus what 152 Treason what 22 Treasure found to whom it belongeth 38 Treasurer of the Chamber 47 Treaties betwixt Princes to be made by Civilians 96 Treble damage of Ecclesiasticall jurisdiction 156 Toll-gatherers exacting how to be punished 14 Trees when and why they may bee lopped by another than the owner 16. loppings of great trees tythable 229. cutting of another mans how to be punished 19. 231. Tribonian a famous Lawyer 32 Tribute 31 Actions of Trover what 128 Truce at sometimes more especially to be observed 78 Tumult how punished 19 Turves tythable 221. arguments to the contrary answered 222 Tutelage the severall kindes thereof 9 Tutors 9. how distinguished from Guardians 10. what required of them ibid. 59 Tythes matters of Ecclesiasticall Cognisance 138. 143. 148. and reall composition for them 201 202. by the Lawes of our Saxon Kings 138 139 140. c. How they stood after the Conquest 142 143. in what case triable in a Temporall Court 144. the forfeitures for non-payment 156 157 the curse therefore 172 173. their different State under the Law and Gospell 161. with the causes thereof 162. seq when they came in use among Christians 161. part of the Morall Law 163. 203. and how farre 205. the ground of the precept 180. first invaded by Charles Martell 164. and in imitation of him by others 169 170. allowed by Mahomet 175. and strictly exacted in Primitive times 173. 174. to bee payed to the Baptismall Church 176. 214. 215. the contrary why not reformed in the Lateran Councell 178 179. not to bee deteined by a Bishop though Founder of a Bâ—nefice 206. nor were his Primitive Endowments 209. of Mineralls due 217. of Turves 221. of boughes of great trees 229. If in no Parish to whom they belong 208. manner of tything how to bee understood 180. prescriptions against tythes 179. 206. 207. Immunitte from tythes why first granted to Religious Houses 188. wherein Religious Orders were exempted from paying tythes and of what things 200. many Lands pretended tyth-free by that exemption which are not 201 V In the Vacancy who anciently had the fruits 217 Valvasores majores minores who 73 Vassailes of of how many kindes 72. 73 Villages converted after Cities 215 S. Vincents Crow 170 Vniversities permitted the use of the Civile Law 87 88 Pope Urbans legantine 193 Vse of money 224 Vsurers infamous 42 Vsury the kindes of it 8. how much to be taken of a husband-man 55. ceaseth when it hath doubled the principall 64. is an accessorie to the principall 233. Sea usurie 62. greater then Land usurie and why 9 W Waste ground of Ecclesiasticall Cognisance 223. 224. seq Water courses not to be altered 16 Widowes how to distribute their goods 51. such as live riotously how provided for by the Civile Law 269 Wills vid. Testaments William the Conquerour his care for Church right 141. 142 Winchester Church how anciently endowed 199 Witnesses what manner of men 61. may bee compelled to appeare 79. how many required to a Will 134 135. of one man dangerous 136. false witnesses 24 Wives in what cases they may be beaten 62 Women in case of suretyship how to be releived 7. not endowed 57. may be Tutors 61 Wood taken for all kinde of fewell 223. great woods in what cases tyth-free 229. 230. and why 231. wood and timber how distinct ibid. Words diffamatory how punishable 236. vid. Diffamation Wrackes what and how to be disposed of 92 93. FINIS ERRATA PAg. 36. lin ult for reade from p. 38. 〈…〉 p. 107. l. 8. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 r. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 r. that p. 177. l. 24. capellas r. capella p. 191. l. ult in r. an 〈…〉 4. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 r. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 p. 212. l. 1. is r. it p. 224. l. 15. 〈…〉 r. out in these p. 231. l. 8. other secundum r. other but secundum p. ibid l. 9. but in that r. in that p. 233. l. 30. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 r. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉
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
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
the time to present the same to the Judge is at the discretion of the Judge from whom the time of prosecuting the same is a year or upon just cause two years in which time if the sute be not ended the cause is deserted and to be sent back unto the Judge from whom the Appeale was first made while the Appeale hangeth nothing is to bee innovated because by the Appeale the Judges hands are as it were bound but if the former Sentence were voyde by law as in sundry cases they are then there needeth no Appeale for such Sentences never passe into a case judged Appeales in criminall cases cannot be justified by a Proctor but it is otherwise in Civile Causes An Appeale in one cause doth not exempt the party appellant from his owne Judge in other causes If the appellant die during the time of the Appeale and leave no heire behinde him the Appeale ceaseth but if he leave an heire behinde him and the matter of the Appeale concernes none but himselfe he is not to be compelled to follow it for every one may renounce his owne sute but if it concerne the Exchequer or any other body then may hee be compelled to follow it The Exchequer is the Princes Treasurie and the patrimony of the common-wealth and hath many and singular prerogatives which private men have not Such as are taken captive by the enemy become their servants who have taken them unlesse either they escape home again themselves or be ransomed by their friends in both which cases they recover all right and priviledges they had in their owne common-wealth before By the Law all Subjects whatsoever are bound to serve the common-wealth in warre in so much that if any being prest withdraw himselfe or his childe from it he is to be counted as a rebell and for his punishment is to be banished and mulcted or fined in the greatest part of his goods As the priviledges and rewards of Souldiers were many to encourage them to vertue and manhood so their shames and punishments were great to feare them from cowardice and vice But among the rest of the priviledges of Souldiers the old Souldiers were the greatest Of Subjects some dwelt in Shires and lived after their owne Lawes and yet neverthelesse were made partakers of the honours of the Citie some other were inhabitants onely in the common-wealth and had onely a house in the same place to dwell in and had no right to bear office some other were strangers brought in which were ruled by the Law of them among whom they dwelt Amongst those that dwelt in Shires the chiefest Magistrate was he whom they called Decurio who was not sent by the people of Rome thither for he was a Magistrate of Magistrates but elected by the people there and his office was to keepe the treasurie of the Countrey to provide victuall exact tribute govern the state there in maner as our Sherifes doe here His office was onely annuall lest by liberty and lust of government and continuance thereof it might grow into a tyrannie Such as are Subjects are to serve the common-wealth in such offices places and services as their abilitie is fit for and the necessitie of the common-wealth requires The services of the common-wealth were of three sorts Patrimoniall such as belong to every mans patrimony to performe which stood chiefly upon payment and charges which were to goe out of every mans inheritance towards the performance of such burthen as lay upon him by law custome or command of him that had power thereto Personall which were to be performed by the care and industrie of the partie and his corporall labour without expence of his purse Mixt which required both care of the minde and labour of the body and expence of the purse and are imposed as well in consideration of the thing as the person which every subject is to undergoe unlesse by the Law or by the indulgence of the Prince they are excused as some are excused by reason of old age some by young age some for their dignity some for their calling some for their state of body some for that they serve in the necessarie services of the common-wealth at home or abroad as Embassadours do some for that they are in necessary places of services for Gods Religion as cathedrall Churches and other Churches are some for that they are of good and necessary places for Seminaries for the common-wealth for learning and such othe imployments as Colledges Societies and Schooles of learning and nurture are Legates and Embassadours had immunitie from all publick servivices not onely the time of their embassage but also two years after their returne They were called Legates in that they were chosen as fit men out of many their person was sacred both at home and abroad so that no man might lay violent hands on them without breach of the Law of Nations Such as are Magistrates of Cities ought so to governe that no negligence may bee justly imputed unto them otherwise they are to answer it and that when their office is expired they give up a just account both of what they have received and what they have layd out and pay in the residue if there bee any Governours of Cities together with the consent of the Burgesses thereof may set downe such orders and decrees as are for the benefit and well ordering thereof which are to be observed of all those which are Inhabitants thereof and being once well and duely set downe are not to be reversed but to the good of the Citie or Commonalty New publick workes such as are good for the Common-weale every one may make without the leave of the Prince unlesse it be done for aemulation or cause of discord but for old works in which stands the security of the Common-wealth as Castles Towers Gates and Wals of Cities nothing is to be done or innovated in them without the Princes warrant neither is it lawfull for any man to grave his name in any publick Worke unlesse it be his at whose cost the worke is done Faires are authorized by Princes onely and are invented for trade of merchandize and uttering of wares which Country-men have cause to buy or sell and have their priviledges that no man in any Faire can be arrested for any private debt they were called Nundinae because that among the Romans they were anciently holden in one place or other upon every ninth day Hee that for ten years space intermitteth to use his Faire loseth the priviledge thereof If any make any promise to a Citie or Common-wealth to do any thing upon certain cause as that hee might be made Consul or that he would repair some part of the Citie that was burnt he shall by the Law be compelled to performe his promise for it is not meet that such promises should be satisfied with repentance Such as professe liberall Sciences in any Common-wealth whereby youth is instructed brought up to knowledge or be
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
and that no poast-horse or carriage be taken but for publick use of poast-letters to whom they are to be granted and for what time Of the Apparitors Sergeants Sumners or Baylifes Of sundry great officers and of their Scribes and Registers and of their trials Of the fees of Advocates and of the extortion of Apparitors And this is the summe of those things which are specially conteined in the Code besides other things which it hath common with the Digest the knowledge whereof at this day is not so necessary for the Civilian who in this age hath little use thereof as it is expedient for Councellours of State and such as are called to place in Court who may there-out marke many things to direct them in their place as the variety of those things which are herein handled doth very well shew CHAP. III. SECT 1. What the Authenticks are and why they are so called THe third Volume of the Law is called the Authenticks of the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 either because they have authority in themselves as proceeding from the Emperors owne mouth or that they are originals to other writings that are transcribed out of them The Authenticks therefore are a Volume of new Constitutions set out by Justinian the Emperor after the Code and brought into the body of the Law under one Booke In the Authenticks is not that order observed in the disposition of the Lawes as is either in the Digest or the Code but as occasion was offered of any doubt wherein the Princes resolution was necessary to every thing so it is set downe without any other methode or forme The whole Volume is divided into * In the Latine translation for the Greeke text acknowledgeth not this division into Collations 9. Collations Constitutions or Sections and they again into 168. Novels which also are distributed into certaine Chapters They were called †quòd novissimè promulgatae sint post Cod. Justin. Repetitae Praeâ—ectionis and therefore the Greeke calleth them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 so likewise the constitutions of the Emperours which were newly published after the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 were called the Novels of Leo Nirephorus Michael c. Novels because they were new Lawes compared to the Lawes of the Digest or the Code Of these Constitutions some were generall and did concerne all who had like cause of doubt some other were private and did concerne only the place or persons they were writ for which I will overpasse with silence SECT 2. The summe of the first Collation OF the generall the first title and first Novell of the first Collation is that Heires Feoffees Executors Administrators and their Successors shall fulfill the Will of the deceased and within one yeare after his decease shall pay his Legacies and Bequests and if they be once sued for it they shall forthwith pay that which is due upon the Will deducting onely a fourth part which is due unto the heire by the Law Falcidia or else to lose such bequests as themselves have in the Will That it shall not be lawfull for a Widow comming to a second marriage after her first husband is dead to sequester one of her children from the rest upon whom shee will bestow such things as her first husband gave her before marriage but that the benefit thereof shall be common to them all Neither that shee convey it over to her second husband or his children and so defraud her first husbands children And that a man in like sort surviving his wife shall doe the like toward his first wives children as concerning such Dowry as the first wife brought to her husband Of Suerties and Warranties that the Creditors shall first sue their Debtors and take execution against their goods and finding them not payable shall then take their remedy against the Suerties Of Monkes that they build no Monasteries but with the leave of the Bishop who is there with prayer to * lay But the Emperour maketh no mention of this Rite for thus saith the Law None shall presume to erect a Church or Monasterie till the Bishop of the place beloved of God having beene made acquainted with it shall come and lift up his hands to heaven and consecrate the place to God by prayer 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and there erect the Symbole of our Salvation wee meane the venerable and truely pretious Rood In Auth. De Monach. § Illudigitur Coll. 1. See also Novell 123. 131. And the like is commanded in the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Yet that this Ceremony of laying the first stone hath beene of ancient use in the Greeke Church may be observed out of their Euchologue where it is said that the Bishop after some other Rites performed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 standing in the place where the holy Altar shall be set saith a prayer which being ended he giveth the Ite Missaest and then taketh up one of the stones and having cut a Crosse upon it himselfe with his owne hands layeth it upon the Ground-worke then hee pronounceth the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. and so the work-men begin the building That which followeth in the Euchologue discovereth the forme and manner of setting up the Crucifixe which the Law calleth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Reader may see 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of the Euchologue The like Ceremonies are used in the Latine Church at this day as may bee seene in their Pontificale page the 281. of that which Clement the 8. set out at Rome in the yeare 1565. the first stone And that the Bishop shall appoint such an Abbot over the Monkes as in vertue and in merit excels the rest And besides of their habit conversation professions and change of life and who is to succeed them in their goods and inheritance Of Bishops and Clerks that is that Bishops and Clerks be of good fame of competent learning and age and that they be ordeined and promoted without Simonie or briberie or the injury of the present Incumbent And that there be a set number of Clerkes in every Church lest the Church and Parishioners thereby be over-charged SECT 3. What is conteined in the second Collation THe second Collation treateth of the Churches State that the lands of the Church be neither sold aliened nor changed away but upon necessity or that they be let to farme for a time or upon other just cause no not with the Prince himselfe unlesse the change be as good or better than that which hee receiveth from the Church and if any man presume contrary to this forme to change with the Church hee shall lose both the thing he changed and the thing he would have changed for it and both of them shall remaine in the right of the Church And that no man give or change a barren peece of ground with the Church That Judges and Rulers of Provinces bee made without gifts of their office power authoritie
of Divine Service and the Eucharist of Baptisme and the effect thereof of a Priest not baptized of Fasting Purification of women and other like ceremonies pertaining to Ecclesiasticall discipline Of building and repairing Churches and of their Church-yards and the immunitie that belongs to them both and of sundry other things in like sort pertaining to the Church That Clerks and other Ecclesiasticall men trouble not themselves about Civile matters contrarie to their office and profession SECT 6. What is conteined in the fourth Booke of the Decretals THe fourth Booke disposeth of matters of Espousals and Matrimonie and sheweth what words make Espousals what Matrimonie of the Betrothing of such as are under age of clandestine Espousals and Contracts and of what account they are to be had of in the Church and how they may be made good Of her that hath betrothed her selfe to two men whose wife shee shall be what conditions may be put in Espousals and what not what Clerks or Votaries may marrie and what not Of him that hath married her with whom before he hath committed adulterie and whether the same second Matrimonie be good whereupon the resolution of the Law is that if the woman knew not that he had an other wife hee cannot leave her his first wife being dead under pretence he had an other wife alive when he married her but if shee knew of it and did joyne with him in practise for making away his wife he cannot marry her no though he were seperated from the other as concerning bed and boord Whether leprous men and other which are infected with like contagious diseases may marrie and whether being married the marriage may not be dissolved upon this point Of kinred Spirituall or Legall and in what sort they hinder marriage of him that hath knowne his owne wifes sister or his owne cousin german and whether this offence doe breake the Matrimonie that is contracted or doe hinder the Matrimonie that is to be contracted Within what degrees of consanguinitie or affinitie a man may marrie Of such as are cold of Nature or inchanted by Sorcery whether they may marrie the like respect is of women who are unfit for men Of such as marrie against the Interdict or prohibition of the Church and what penaltie they incurre What children be held legitimate who they be that may be accusers or witnesses in cases of dissolution of Marriages betweene man and wife Of Divorces betweene man and wife which are caused by the diversitie of mindes that are then betweene them for that one seeketh to goe apart from the other and in what cases divorces are allowed and how many kinds there be of them of gifts betweene man and wife what securitie they have in Law and that the Dowrie after the divorce be restored to the woman so that it be not in case of Adultery and other such like filthinesse Of second Marriages in what cases they are to be permitted in what not SECT 7. What is the subject of the fifth Booke of the Decretals THe fifth Booke treateth of such Criminall matters as are handled in Ecclesiasticall Courts wherin the proceeding is either by accusation whereto the Accuser doth subscribe his name because it tendeth to punishment or else by denunciation whereto the Informer doth not subscribe his name because it tendeth only to the amendment of the party or by Inquisition which for the most part is not used but upon fame precedent albeit somtimes it be without fame if once the fame be proved then may enquirie be had of the trueth of the fact but yet without malice or slander The Criminall matters which are prosecuted in the Ecclesiasticall Courts and censured by Canonicall punishments are Symonie and selling of Ecclesiasticall graces and benefices whereupon Prelates are forbid to let out their Jurisdictions under an annuall rent and Masters and Preachers to teach for money The punishment of Jewes and Saracens and their servants that is If a Jew have a servant that desireth to be a Christian the Jew shall be compell'd to sell him to the Christian for xij pence That it shall not be lawfull for them to take any Christian to be their servant That they may repaire their old Synagogues but not build new That it shall not be lawfull for them upon good Friday to open either their doores or windowes That their wives neither have Christian Nurces nor themselves be nurces to Christian women That they weare divers apparell from the Christians whereby they may be knowne and other ignominies of like sort Who be Hereticks and what be their punishments who be Schismaticks and what be their punishments Of Apostates Anabaptists and their punishments Of those that kill their owne children and their punishments Of such as lay out young children and other feeble persons to other mens pitie which themselves have not and how they are to be punished Of voluntarie or casuall murthers Of Tilts Barriers and Tornament Of Clerks that fight in combate Of Archers that fight against Christians Of whoredome and adulterie and how they are to be punished Of such as ravish women and their punishment Of Theeves and Robbers Of usurie and the paine thereof Of deceit and falshood Of Sorcerie Of collusion and cosenage and the revealing of the same Of childrens offences and that they are not to be punished with the like severitie as mens offences are Of Clerks hunters or hawkers who if they often times use and sport themselves therein if they be Bishops they are to be suspended from the Communion three moneths if Ministers or Priests two but if he be a Deacon he is to be suspended from his office If a Clerk often times strike other men and being admonished to forbeare such kind of violence doe neverthelesse continue in his folly he is to be deposed If a Bishop cause any man rigorously to be whipt he is to be suspended from saying service two moneths Such as speak ill of Princes and other like great persons spirituall or temporall are to be punished so that others by their example may take heed to speake ill specially such as blaspheme the Majestie of the Almighty God If Clerks excommunicated deposed or interdicted or that came to the highest order without passing thorough the inferiour orders or that came to the same order covenously and deceitfully or being not ordered at all or at the least not ordered lawfully dare take upon thē either to minister the holy Sacraments or to say divine Service they are to be deposed from their office and from their benefice and never after to be ordered Prelates are not to greeve their subjects either with rash suspension or excommunication of their persons or interdicting of their Churches but they are to execute all those censures of the Church in judiciall order they are not easily to suffer any man to hold two Benefices where one may suffice or to reteine any thing to his owne use in a Church wherein he hath collation or
a question hath beene where the King hath had sons both before hee came to the Kingdome and after which of them is to succeed hee that was borne before the Kingdom as having the prerogative of his birth-right or he that was borne after as being brought into the world under a greater planet than the other neither hath there wanted reason or example for each side to found themselves on for Xerxes the son of Darius King of Persia Herodot lib. 4. Justin lib. 11. Plutarchus in vita Artaxerxis being the eldest birth after his father was enthronized in the Kingdome carried away the Empire thereof from his brother Artemines or Artobazanes borne before his father came to the royall possession thereof so Arseces the son of another Darius borne in the time of his fathers Empire carried away the garland from his brother Cyrus borne before the Empire so Lewes Duke of Millan borne after his father Guicciard l. 1. Histor Blondus Decad. 2. lib. 6. Mich. Ritius l. 2 de regib Hungar Sigeb in Croniâ— was Duke was preferred to the Dukedome before his brother Galliasius borne before the Dukedome But these examples notwithstanding and the opinion of sundry Doctors to the contrary common use of succession in these latter dayes hath gone to the contrary and that not without good reason for that it is not meet that any that have right to any succession by the prerogative of their birth-right such as all elder brethren have should be despoiled thereof except there be some evident cause of incapacity to the contrary Besides sundry contentions have risen in kingdomes between Bartol l si viva matre c de bâ—â—is maternis primogeniti silâ—â— non excludunt secundogenitum in regno ff de liberis posthumis l. in suis the issue of the eldest sonne of the King dying before his father and the second brother surviving the father who should reigne after the father the Nephew challenging the same unto him by the title of his fathers birthright and so by the way of representation for the eldest sonne even the father yet living beares the person of the father how much then rather his father being dead Whereupon the Law cals as well the sonne Filiusfamilias as the father Paterfamilias for that the sonne even during the fathers life is as it were Lord of his fathers state the other claiming as eldest sonne to his father at the time of death upon which title in old time there grew a controversie betweene Areus the sonne of Acrotatus eldest sonne to Cleomines King of Lacedamon Pausanias lib. 3 Histor and Cleomines second sonne to Cleomines and uncle to the said Areus but after debate thereof the Senate gave their sentence for Areus right against Cleomines besides Eunomus King of Lacedaemon having two sonnes Polydectes and Lycurgus Polydectes dying without children Lycurgus Plutarch in vita Lycurg succeeded in the kingdome but after that he understood Polydectes widow had a childe he yeelded the Crown to him wherein he dealt farre more religiously than either did King John who upon like pretence not onely put by Arthur Plantaginet his eldest brothers sonne from the succession of the kingdome but also most unnaturally tooke away his life from him or King Richard the third who most barbarously to come unto the kingdome did not onely slay his two innocent Nephewes but also defamed his owne mother in publishing to the world that the late King his brother was a bastard Our Stories doe not obscurely note that a controversie of like matter had like to have growne betweene Richard the second and John of Gaunt his uncle and that he had procured the counsell of sundry great learned men to this purpose but that hee found the hearts of sundry Noble-men of the Land and specially the Citizens of London to be against him whereupon hee desisted from his purpose and acknowledged his Nephewes right Yet notwithstanding when as Charles the second King of Sicile Vicerius in vita Hen. 7. departed this life left behinde him a Nephew of Charles his eldest sonne surnamed Martellus and his younger sonne Robert and the matter came in question which of them should succeed Clement the fifth gave sentence for Robert the younger sonne of Charles deceased against the sonne of Martellus being Nephew to his Grandfather and so caused the said Robert to bee proclaimed King of Sicile which Clem. c. pastoralis de re judicata was done rather upon displeasure that Pope Clement conceived against the Emperour Frederick than that there was just cause so to doe And yet Glanvill an old reverent Lawyer Glanvil l. 7. c. 3 of this Land and Lord chiefe Justice under Henry the second seemeth to make this questionable here in England who should be preferred the Uncle or the Nephew And thus much of succcession of Kings wherein the eldest among Males hath the prerogative and the like in Females if there be no Male for that a Kingdome is a dignitie undivisible and can come but to one be he Male or Female for that otherwise great governments would soone come to small Rules and Territories And the like that is said of Kingdomes is to be held of all Dignities under Kingdomes where the eldest sonne is to be preferred before all his other brethren and they successively one before an other if there be no issue left of them that goe before and the Male line is to be preferred before the Feminine and the Feminine before all the rest of the kinred so it be not a Masculine Feud and the same intailed upon the heire Male. And thus farre as concerning the matters wherein the Civile Law dealeth directly or incidently within this Realme Now it followeth to shew how much of all those Titles of the Canon Law which have beene before set downe are here in practice among us CHAP. II. SECT 1. Concerning the use which the Canon Law hath in this Realm That some Titles thereof are abolished onely individually and some others are altogether OF those Titles of the Canon Law which before have beene recited some are out of use here with us in the singular or Individuum by reason of the grosse Idolatrie they did conteine in them as the Title of the Authoritie and use of the Pal the Title of the Masse the Title of Reliques and the worship of Saints the Title of Monks and Regular Canons the Title of the keeping of the Eucharist and Creame and such other of like qualitie but yet are reteined in the generall for in stead of them there are substituted in their places holy worships tending to the like end of godlinesse those other did pretend but void of those superstitious meanes the other thought to please God by and so in stead of the Masse hath come in the holy Communion and in place of worshipping of Saints hath succeeded a godly remembrance and glorifying of God in his Saints and so of the rest whereof
there is any right use within the Church Some other are out of use as well among the Civile as Criminall titles because the matter that is therein treated of is knowne notoriously to belong to the conusance of the Common Law at this day as the Titles of Buying and Selling of Leasing Letting and taking to Farme of Morgaging and Pledging of Giving by deed of gift of Detecting of Collusion and Cosenage of Murder of Theft and receiving of Theeves and such like SECT 2. That the Titles lastly mentioned did anciently belong unto the Court Spirituall and the reasons which moved the Author so to beleeve The first Reason ANd yet I doubt not but even these matters as well Civile as Criminall or most of them were anciently in practise and allowed in Bishops Courts in this Land among Clerks to the which I am induced by three Reasons First that I finde not onely the forrein Authours of the Decretals but also the domesticall Authours of the Legatines being all most excellent wise men as the Stories of their severall ages do report to have enacted these severall constitutions and to have inserted them not onely in the body of the Canon Law but also in the body of the Ecclesiasticall Lawes of this Land and that some wise men sundry yeares after their ages doe write and comment upon the same as things expedient and profitable for the use of the Church and the government of the Clergie in those dayes neither of which I doe presume they would have done if in those ages there had not beene good use and free practice of them SECT 3. The second Reason SEcondly that I finde in the Code of Justinian by sundry Lawes some of his owne making some others of other Emperours before his time even from the daies of Constantine the great Bishops in their Episcopall audience had the practice of these matters as well Criminall as Civile and to that end had they their Officials or Chancellours whom the Law calleth Ecclesiecdici or Episcoporum Ecditi that is Church-Lawyers or Bishops-Lawyers men trained up in the Civile and Canon Law of those ages to direct them in matters of Judgement as well in Ecclesiasticall Criminalâ— matters as Ecclesiasticall Civile matters And that these which now are Bishops Chancellours are the very selfe same persons in Office that anciently exercised Ecclesiasticall Jurisdiction under Bishops and were called Ecclesiecdici it may appeare by that which Papias an old ancient Historiographer cited by Gothofred in his Annotations upon the foresaid Law Omnem in the Code title de Episcopis and Clericis and upon the § Praeterea writeth of them who saith thus That Ecclesiecdici or Ecdici were those that were aiders assisters to the Bishops in their Jurisdictions not astrict or bound to one place but every where through the whole Diocesse supplying the absence of the Bishop which is the very right description of the Bishops Chancellours that now are who for that they carry the Bishops authority with them every where for matters of Jurisdiction and that the B. and they make but one Consistory are called the Bishops Vicars generall both in respect their authority stretcheth it selfe throughout the whole Diocesse and also to distinguish them from the Commissaries of Bishops whose authority is onely in some certaine place of the Diocesse and some certaine causes of the Jurisdiction limited unto them by the Bishops and therefore are called by the Law Judices or Officiales foranei as if you would say Officiales astricti cuidam foro dioeceseos tantùm Gloss in Clement 2. de Rescrip So that it is a very meere conceit that a certaine Gentleman very learned and eloquent of late hath written That Chancellours are men but of late upstart in the world and that the sloth of Bishops hath brought in Chancellours wheras in very deed Chancellours are equall or neer equall in time to Bishops themselves as both the Law it selfe and Baldus l. aliquando ff de officio Proconsulis Couar li. 3. variarum resolut c. 10. num 4. Shrozius lib. 1. de vicario Epis q. 46. num 2. 4. 12. 13. Stories doe shew yea Chancellours are so necessary Officers to Bishops that every Bishop must of necessitie have a Chancellour and if any Bishop would seeme to be so compleat within himselfe as that he needed not a Chancellour yet may the Archbishop of the Province wherin he is compell him to take a Chancellour or if he refuse so to doe put a Chancellour on him for that the Law doth presume it is a matter of more weight than one man is able to sustain to governe a whole Diocesse by himselfe alone and therefore howsoever the nomination of the Chancellour bee in the Bishop yet his authoritie comes from the Law and therefore Hostiensis in sumusa de officio Vicarii numero 2. in fine nominationem ab Episc potestatem verò à â—ure recipiunt he is no lesse accounted an Ordinarie by the Law than the Bishop is But truth it is not the sloth of the Bishops but the multitude and varietie of Ecclesiasticall causes brought them in which could not bee defined by like former precedents but needed every one almost a new decision And the reasons why Princes in the beginning granted to Clergie men these causes their Consistories for from Princes were derived in the beginning all these authorities as also the Religion it self is setled protected in kingdoms by Princes before there can be had a free passage thereof were First that the Clergy-men therby might not be drawn from their prayer and exercise of divine service to follow matters of suits abroad 2ly that they were like to have a more speedy better dispatch more indifferency before a Judge of their owne learning than before a Judge of an other profession for this is true and ever hath beene and I feare ever will be unto the end that is said in the Glosse and is in common saw Laici oppidò semper infesti sunt Clericis Lastly That Clerks suits and quarrels should not be divulged and spread abroad among the Lay people and that many times to the great discredit of the whole profession specially in criminall matters wherein Princes anciently so much tendered the Clergie that if any man among them had committed any thing worthy death or open shame he was not first executed or put to his publick disgrace before he was degraded by the Bishop and his Clergie and so was executed and put to shame not as a Clerk but as a Lay malefactor which regard towards Ecclesiasticall men it were well it were still reteined both because the consideration thereof is reverent and worthy the dignity of the Ministerie whose office is most honourable and also for that it is more ancient than any Papisticall immunitie is SECT 4. The third and last Reason THe third reason that moves moe that I should beleeue that these Titles sometimes were here in exercise among
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
supposititious I only know that they may bee so not that they are and however it be dull to entertaine any thing that shall be obtruded yet the rejection of ancient Authors and Councels should be warily concluded upon Thus much notwithstanding is recorded that by reason of the Arian incendiaries a compleat number of the Canons of this Councell was so rarely found that Athanasius himselfe who was present at the Synod was forc't to send into these parts to the Bishop of Rome that then was to desire from him a perfect copie because in the Easterne world few or none had escaped the fire of the Arians This wee have out of those Epistles which are supposed to have past betweene Pope Marke and Athanasius concerning the burning of the decrees of this first Nâ—câ—ne Councell and if these be true the Canons here are the lesse to be suspected But against the credit of those Epistles the Cardinals Bellarmine and Baronius have consented and it may well be thought they have some cause for that these Canons much availe their faction and depend not a little upon the authoritie of these Epistles yet their reasons against these Epistles are for the most part chronologicall and because such as these are subject to much hazard therefore our confidence in beleeving may be arbitrarie at our own disposing But be these Canons how they will yet a most expresse monument of this Quadripartite division of Church dues may be noted out of an Arabick Canon of the Councell of Antioch Canon 25. I say an Arabick not for curiositie but because I finde this matter more fully there set downe for the Greeke saith thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That the Bishop shall have the Church dues in his power that he may dispose of them to every one that needeth religiously and in the feare of God But the Arabick Canon more distinctly 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That the Bishop shall have at his disposing the Church dues and revenues to the end that he may divide and distribute them to his Clergie to the Parishioners for the repairing of Churches to the poore and needie and that he may take to himselfe what shall be necessarie for his owne expence c. This Quadripartite Division was used in most places but most principally in the RomaÌ„ Church For in some other the Bishop had the third part See Filesacus in his Booke De Sacra Episcoporum Authoritate Concerning the originall of a Parish in these two former Acceptions it may be acknowledged to bee a device of the ancient Roman Bishops and to have beene derived from them to other Nations But a Parish may be also taken for such a part of the Diocesse which is limited to some residentiarie incumbent allowed by the Bishop and maintained by the Church dues in his owne right And this consideration of a Parish most of all agreeth with those which we now have And it may very well be supposed that these later Parishes have had their beginning from the inconveniences of the former And the designement and limitation of these how ever it might have speciall encouragement from the devotion of lay men yet the principall stroke was alwayes given by the Ecclesiasticall to whom it pertained to consecrate the Churches and make them baptisteriall And that the dividing of Parishes should of right belong unto Ecclesiasticall men it may be the more reasonable because the first that ever divided any Parishes were the Roman Bishops and they did not onely so but also gave direction to other Prelates in their severall Provinces to doe the like ospecially if that be true which wee have formerly cited out of that Epistle of Pope Denis to the Spanish Bishop However Alexander the third C. Aâ—aritia De Prabend Dig. gave command to the Canons Regular of Yorke Diocesse that they should not presume to divide Parishes sine consensu Archiepiscops And some encouragement may he had from a decree made in a Synod holden at Westminster about the yeare 1147. which saith c. 4. Nullus Abbas nullus Prior nullus omnioò Monachuâ— aut Clericus Ecclesiam siâ—e decimam seu qualibet beneficia Ecclesiastica de dono laâ—ct accipiet sine propriâ— Episcopi authoritate consensu quòd si prasumptum fuerit irrita erit donatio hujuscemodi Chron. MS. Biblioth Bodleian And the like intimation is given in an other Councell holden at the same place in the yeare 1149. called by the most Reverend Father in God William then Lord Archbishop of Canterbury There it is said cap. 10. Vt nulla persona-Ecclesias vel decimas sen qualibet alia Ecclesiastica beneficia det vel accipeat sine consensâ— authoritate Episcopi If wee apply these decrees to the matter in hand wee may deduce some thing answerable to that which is inquired Besides Lay men were not to medle with the ordering of Tythe-payment and yet in this division of Parishes a principall respect was had to the consideration of Tythes and therefore it was that Parishes were limited with such great care and curiositie For Bartol said That if it were doubted concerning a house in what Parish it should stand it must bee conceived to bee of that into which it opens if it opened severall wayes a posterne gate was not respected but it was judged to belong unto that Parish into which it opened at the chiefe Gate At what time this last kinde of Parishes began else where wee enquire not when they began here at home wee finde not unlesse wee understand such as these in the Division of Honorius however they must be in use before the dayes of Edgar as it seemeth by the Sixon Lawes of that time See the Lawes of Edgar cap. 1. although otherwise the thing it selfe be more ancient and descends from the counsell of Saint Paul which he gave to Titus to appoint Tit. cap. 1. v. 5. Elders in every Citie But that Cities and Countries again are divided into severall Parishes it was the ordinance of Pope Dionysius about the yeare 266. and from him derived into this and other Realmes and the distinction thereof was chiefly devised that it might be knowne of what congregation every people were and that so they might be trained up in the Schoole of godlinesse under their owne Pastor or Minister But that now the division of Parishes doth serve to other politick uses it comes not of the first institution thereof which was meere Ecclesiasticall but it groweth out of a second cause that is because being so fitly and aptly primarily divided by Ecclesiasticall men as they are the Princes therefore did use the opportunity thereof for temporall services subdividing the same againe into many Tythings or like smaller divisions for the more speedy service of the King and better ordering of the common-wealth Which our ancient Fathers well knowing never called the same in question acknowledging therein the good they had received from Ecclesiasticall men by this partition of Countries into Parishes but men
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 §