sute betweene them Arbitrement and to pronounce upon the same to which they are to bind themselves under a penaltie to stand SECT 4. What is conteined in the second Booke of the Decretals THe first Booke having set out the first object of the Law which standeth in the persons who make up the Judgement as in the person of the Judge himselfe the Advocates Proctors and Clients there followeth in the second Booke the second object of the same which is the Judgements themselves which are to be commenced by a Citation and that in a competent Court fit for the same by a Libell offered up in the Court by the plaintife to the Judge which is to containe the summe of that which is required in Judgement where if the defendant doe againe reconvent the plaintife he is to answer albeit the defendant be not of that Jurisdiction the Libell being admitted the defendant is to joyne issue and yet before either of them enter any further into the cause that there may be faire and sincere dealing in the same and that all suspition of malitious dealing therein may be taken away each of them are to take an oath the Plaintife that hee doth not of any malice prosecute the sute against the Defendant or the Defendant of any malice mantaine the sute against the Plaintise but that they verily beleeve their cause is good and that they hope they shall be able to prove the one his libell the other his exceptions if he shall put in any into the Court. The cause being begun delayes are often granted if either there come any holiday betweene or any other like just cause be offered as for producing of witnesses and such like if there be no just cause of delay then the Judge is to goe on in the due course of Law provided alwayes that more be not demanded by the plaintife than is due and that the cause possessory be handled before the petitorie and that hee that is spoyled be first and before all things restored to that thing or place whereof he was spoyled or from which hee was put yea though he have nothing else to alledge for himselfe besides the bare spoliation it selfe If the one side or other wilfully or deceitfully decline Judgement the Judge is to put the other in possession of that which is in demand or at the least to sequester the fruits and possessions of that which is in controversie but if both parties appeare and joyne issue affirmatively then is it but a question of Law and not of fact neither doth there remaine ought else to be done by the Judge but that he give sentence against him that hath confessed it and put his sentence in execution But if issue be joyned negatively then is the plaintife to prove his Libell so farre as it consists infact by witnesses which are to be compelled by Law if they will not come or appeare voluntarily by publick and private instruments by presumptions by conjectures by oath which being done the Defendant in like sort is to be admitted to prove his exceptions and cleere his prescription if he be able to alledge any in which he is Plaintife neither is hee bound thereto before the Plaintife have perfected and proved his owne right After proofes are brought on either side and the same throughly disputed on by the Advocates the Judge is to give sentence which he is to frame according to the Libell proofes formerly deduced in the cause The sentence being given Execution is to be awarded unlesse there be an appeale made from it within ten dayes by the Law but fifteene dayes by the Statute of this Land from the time the party against whom sentence was given had knowledge thereof or unlesse it be appealed incontinently at the acts and in writing before a publike Notary or at the least the party against whom the sentence proceeded with due time take their journey toward the higher Judge to prosecute the same by whom the former sentence is either confirmed or infirmed in the second instance SECT 5. What is the subject of the third booke of the Decretalt THe third booke conteineth such Civile matters and causes as are lyable to the Ecclesiasticall Courts as the honest life or conversation of Clerkes and their comely comportment in all their demeanour with what women they are to cohabit and dwell with whereby they may be free from all suspition of ill life and with whom not which of them may bee married by the law of the Canons and which not in what cases they may be allowed to be non-resident and in what not and how such as are non residents may be called home unto their cure and if they returne not upon processe sent out against them how they are to bee punished namely by deprivation or sequestration of the fruits and commodities of their benefice Prebends and dignities are preferments for Clerkes but not for such as are idle or absent from the same without just cause but if any Clerke or Minister be sicke and his disease be curable he is to receive the benefit of his prebend or dignity in his absence as though he were present but if it be contagious or uncurable then he is to be put from the exercise of his office and a helper or coadjutor to be joyned unto him and they both to be maintained of his stipend Prebends or dignities are to be got by institution which are to be given by the Bishop or his Chancellour or such other as have Episcopall jurisdiction without which neither any benefice is lawfully gotten nor can lawfully be reteined Benefices not voyde ought neither to be granted neither to be promised but such as are voyde ought to be granted within sixe moneths after knowledge of the voydance thereof otherwise the grant of them devolveth and commeth unto the superiour hee that causeth himselfe to be instituted into a benefice the Incumbent thereof being alive himselfe is to be deposed from his orders While any Benefice or Bishoprick is void nothing is to be changed or innovated in it and such gifts sales or changes of Ecclesiasticall things as are made by the Bishop or any other like Prelate without the consent of the Chapter are void in Law and such Benefices as doe become void are to be bestowed without any impairing or diminution of the same In what case the goods and possessions of the Church may be alienated and in what not and that such things as are alienated be alienated by the greater part of the Chapiter otherwise the alienation is void What goods of the Church may be lent what sold what bought what changed what demised or let to lease what morgaged or let to pawne After these follow Tractates of last Wils and Testaments of succession by way of Intestate of Burials of Tythes first Fruits and Offerings Of Monkes and their state in sundry sorts of the right of Patronage of Synodals and Procurations of consecration of Churches of Celebration
punished which being put in trust to measure any mans ground makes a false report of the measure thereof that no man hinder a corse of a dead body to be carried to buriall or to be buried in such places as hee and his predecessours have right unto or to build a Tombe to that purpose and beautifie the same SECT 5. That the third part stretcheth it selfe into nine bookes and what they contein THe third part imbracing nine books concerneth personall actions which rise not of cause of right or possession but of covenant and obligation as things credited or lent in a certain summe the means how to recover the same if it be denied that is by oath of the partie that denieth it unlesse he may be convicted either by witnesse or instrument that he hath forsworne himselfe how many kinds of oaths there are voluntary out of Judgement necessarie exacted by the Judge in doubtfull cases where otherwise there wanteth proofe to manifest the trueth Judiciall such as one partie offereth to another in Judgement and cannot be refused without just cause and lastly that which the Judge offereth to the plaintife as concerning the value of the thing which is in strife or the charges that he hath beene at in recovering of the same what exceptions there lyes against Obligations as that which for cause was given and cause did not follow that the cause was dishonest for which that is challenged that was given that the summe was not due which was paid and therefore not to be exacted but to be repaid actions for things lent for a certain time and to a certain use actions for things pawned actions that either passengers have against Marriners for the goods or ware that they have brought into the ship or Marriners have against Passengers for their fraught actions of ejectment wherein the passengers and Marriners are bound each to other for contribution of the losses of such things that have beene cast into the sea in the time of a storme or tempest according to the qualitie or quantitie of the goods they have in the ship actions whereby masters are bound to answer for their servants contracts and fathers for their children in such things or negotiation as they have put them in trust withall saving where the childe borrowed money without his fathers privitie for riot and for such purpose as his father hath no use thereof Remedies for women when by weaknesse of their sexes and lack of counsell they have inwrapt themselves in suretiship for other men action of compensation where a debt is demanded for which an equivalent portion hath beene received in lieu or satisfaction thereof actions of mandate or commandement wherein one hath done some worke or laid out some money upon an other mans mandate or word and yet when he requireth allowance thereof it is denied him actions of societie or fellowship wherein either the societie is required to be maintained or the money put in common banck to be divided actions of bargain and sale either pure or conditionall the bargain being once made the losse and gaine that after happeneth is the buyers unlesse the seller retain some further right in the thing sold unto himselfe actions of letting or setting either of the use of a person or the use of a thing upon a certain hyer actions of change and such like SECT 6. That the fourth part conteineth eight bookes and the contents thereof THe fourth part being digested into eight bookes ministreth actions for such things as are accessarie to contracts such as pawnes and pledges are which are given for the better securitie of the contract actions for restitution wherein a man hath beene deceived in a bargain more than the halfe value of the thing sold or wherein the seller hath concealed some fault in the thing sold which he ought by Law to have revealed or promised some qualitie in the same which was not in it or where the thing sold hath beene evicted by an other out of the hands of the buyer himselfe using all just defence of Law for himselfe actions for interest and usurie and how many kinds thereof there be that men use by land Lucratory Compensatorie and Punitorie whereof the first is altogether unlawfull the other two allowed where either just gain ceaseth or just losse followeth upon that occasion that which is lent is not payd according to the day of covenant Sea-usurie otherwise called nautick usurie is greater than land-usurie and yet allowed by Law for that the seafaring man takes upon himselfe the danger of the transporting thereof and securing the same at such place as it is appointed to be delivered In deciding of matters of controversie the Law proceeds somtimes by witnesses somtimes by instruments somtimes by presumptions where knowledge or ignorance of fact or Law is presumed Spousals are mutuall promises of a future marriage marriage is a lawfull coupling together of man and woman the company and societie of the whole life the Communion of all Divine and humane rites and things and of one and the same house wrought by the consent and mutuall good will of the one towards the other in elpousals and marriages is to be considered who is to be joyned together at what years and by whose consent there doth wait and attend upon Marriages Jointures Dowries and such like and sometimes Divorce which Divorce what and why so called is so called of the diversitie of the mindes of those that are married because such as are divorced goe one a divers way from the other The causes whereupon Divorces The causes of Divorces grow are Adultery deadly hatred one toward an other intolerable cruelty neernesse of kinred and affinitie in degrees forbidden impotencie on the one side or the other actions of Dowrie after divorce or separation actions against a mans wife imbeaselling away his goods actions against a husband disclayming his owne childe and his wife being with childe if he make doubt thereof means how and where she shall be kept untill her delivery so that no false birth shall be put in place of the true childe or that she abuse not her husband or the next heire with a false shew of that which is not Tutelage government of children under age which is either testamentarie or due to the next of kinne or dative all which are either to be confirmed or disposed of by the Magistrate Administrations of Tutors and Curators and how farre they are endangered by their office and wherein they are to interpose their authoritie and consent and for what acts the pupils or minors may be sued done by the tutors or curators how any may be argued to be a suspected tutor or curator and how and by whom he may be removed if there appear just cause of suspition against him A tutor is chiefly set over the person of the childe secondly over his goods but the Curator or Guardian is chiefly set over the goods and then over the person of 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
uniformitie of Jurisdiction as that it is all by sea and all by land there may a thing be fained to bee done in one place that was done in another place without any mans prejudice for that in this case the place is not traversable so it bee not in Criminall matters where time and place is required that the accuser doe not wander from place to place with the injurie of the accuser for howsoever the place and the action is altered yet the truth of the cause remaineth one and the selfe same still And so farre as concerning actions of Trover in Admirall causes Now it doth follow that I should speake of like prejudices that grow to the same by actions of Trespasse but those will I passe over for that in so small a Treatise as this is I cannot goe over all and therefore will I onely put the Reader in minde that there are more devises rising out of the Common Law than one that infest the Admiralty But now to Wils and Testaments wherein they are impeached SECT 4. Concerning Wils and Testaments wherein they are impeached FOr matters of Wils and Legacies they are so proper to the triall of the Ecclesiastical Law of this Realm that the professors of the Common Law themselves doe oftentimes confesse and say they have no more to doe therewith than the Civilian hath to do with the knowledge of the matters of Franktenement and yet even these matters of Testaments and Legacies although Prohibitions be not so frequent in them as they are in the rest of Ecclesiasticall causes yet they are not quite voide of them that in some points wherein the very life and essence of a Will doth stand For whereas the ancient Romans knowing how subject matters of Wils are to forgerie and corruption on the one side and suppression and concealment on the other side to meet with all craft and subtilty whatsoever which might seize on them did most carefully provide that there should be seven witnesses at the least present at the making of every Will Testament except it were in time of some generall plague or sicknesse when so many witnesses could not conveniently be had together for fear of infection or that it were in the Countrie where there are small multitude of people And that those witnesses should be particularly required to that purpose with diverse other observations and circumstances tending all to the safe and sure making thereof which the Ecclesiasticall Law altered afterward in sundry points for that many true Wils were many times overthrowne for want of those precise solemnities It therefore reduced the whole number of those seven witnesses unto two onely agreeably to the Law of God and the Law of Nations where that number of witnesses is allowed as competent to prove any matter so that the same witnesses be honest and credible persons such whose faith is not doubted of The Common Lawyers because themselves in sundry matters very dangerously many times admit one witnesse and give him full credit and that in matters of great weight and importance as though all should bee squared to their rule and framed to their compasse if an Ecclesiasticall Judge in the probate of a Will contrary to the rules of his owne Law will not admit the testimony of one witnesse they forthwith fling out a Prohibition against him as though he had done an offence against the Crowne and dignitie in that he doth not allow those number of witnesses in the Probate of a Will that the Common Lawes of this land allow almost in every matter For answer to which if I should alleage the precise forme of the Ecclesiasticall Law which to the essence of a Will requireth this number of two witnesses or else holdeth it not for a Will but in cases inter liberos ad pios usus where the onely hand of the Father or Testator without witnesses serveth for a Will so the same be knowne to bee the Testators owne hand or so proved by comparison I would thinke to wise men I had said sufficiently but I will not rest hereupon but will convince themselves by themselves for doe they I pray you in their own proceedings where a Law or Statute requires more witnesses than one content themselves with one witnesse alone yea doe they not in all cases where a certaine number of witnesses are appointed to prove a fact by Law or Statute furnish the cause with so many witnesses as the case desires or else doe they not account the proceeding voide And will they thinke themselves so precisely bound to the keeping of the letter of the Common Law and will they not suffer the Civilian in like maner to cleave fast to the observation of the Civile Law especially when it hath the consent of the Law of God and the Law of Nations and is his Majesties Ecclesiasticall Law of this Land aswell as the other is his Temporall Law of the same I confesse it may be true many times which one man saith specially when there concurre therewith many great and violent presumptions and the party that reporteth it is of good credit but dangerous it is to open this gap to the malice of men for even so many things shall bee obtruded to the Judge for trueth which are starke lyes and many things shall bee pretended to bee gold in shew which in proofe and practise will be found to be no other thing but meere drosse And therefore well decreed the Emperour Lâ—juris urandi §. Simili modo C. de Testibus Constantine that no one mans testimony should bee heard though he were never so great a man in Court But perhaps some man will say If credit shall not be given oftentimes to one mans testimonie much wickednesse will passe away unpunished For reply to which I answer It is better to let a bad man scape than to punish a good and although it be true if a man may excuse himselfe by deniall no man will be found guilty so also it is true on the other side if it be enough to condemnation to be charged by one man alone without any other witnesses no man shall bee innocent and therefore the admittance of one witnesse in causes and the proceeding thereupon to judgement is very dangerous An other like barre to this they lay against Ecclesiasticall proceedings in matters of Testament whereas an Ecclesiasticall Judge proveth a Will wherein are Mannors Lands Tenements and other like Hereditaments bequeathed challenging this also to be of the Crowne and dignity as though the Ecclesiasticall Judge thereby took upon him to decree which lands were devisable by Will which not or would by his probate adde a strength unto the Will to make the devise good or bad whereas on the contrary part the Ecclesiasticall Judge by this act doth only testifie that such a person made such a Will that the same was proved before himselfe under his Teste for his last Will Testament but for the
and is by Aristotle held to be a vertue although by S. Paul it is condemned as a vice but if it bee in homely and grosse sort delivered then is it accounted to be a Ephes 4 5. kinde of rudenesse or rusticitie but whether way so ever Extra de presumpt c. 1. they be uttered there is for the most part no advantage taken against them unlesse thereby there follow any discredit to the party upon whom such jests are broken for then are they not without blame Noxius enim ludus est in vitio neither ff ad l. Aquiliam l. nam ludus can that bee called a jest or sport whereby a mans good name is hurt or any crime imposed upon him The like may be said of those which speak hardly of any by the lubricitie of their tongue or weakenesse of their braine who for that they are not thought to speake such words maliciously passe for the most part unpunished Lubricum enim ff ad l. â—ul Maâ—estatis l. famoâ—i linguae non facilè ad poenam trahendum est no though a man in this case speak ill of the Prince himselfe And the Civile Law is so farre from taking hold of such words in these cases that the Emperour himselfe hath said of them thus Si id ex levitate processerit contemnendum est si ex insania miseratione 〈◊〉 Si quis Imperatori maledixerit dignissimum est But if the cause of such words bee rankor or malice then are they altogether to be punished for that there can be no just excuse made for them Such diffamatory words as proceed of malice imply either Bâ—bic cap. Si culpa de inju 〈…〉 matters of crime or matters of defect Such as imply matters of Crime either are such crimes which it is expedient for the Common-wealth to know as Lanwood provinc de sent excomm cap. 1. verb. malâ—â— rose Treason Felonie Murther Incest Adulterie and such like to the end they may receive due punishment whereby God may bee pleased and the Common-wealth satisfied Or they are such crimes or faults which it is not expedient for Bâ—â—ic ubi supr the Common-wealth to be acquainted vvith as vvhere one calleth one prodigall or spend-thrift For albeit it bee exexpedient for the Common-wealth that no man mis-spend his estate for that the Common-wealth hath as it were an interest in every private Subjects state yet this is rather his owne hurt than any other mans and that which hee spends away unthriftily commonly turnes to another better subjects gaine whereby the Common-wealth is relieved in one that it lost in another and for the most part there is no great corruption of manners in the example thereof A great while it was before the Lawes of this Land tooke knowledge of Diffamations as counting them things belonging to the Spirituall Law so they were dulie prosecuted as may appeare by certaine Judgements and consultations which have issued out thereon but now let Term. 12. Hen. 7. fol. 22. Regist pag. 49. men prosecute them never so duely yet Prohibitions goe out on them daily and sundry others are drawne to the common Law Courts by action of the case wherein they have so infranschised themselves as that they take upon them to confine the Ecclesiasticall Law how farre it shall goe therein Which limitations notwithstanding as farre as I can conceive are but distinctions without differences and so are in very deed but bare Synonomies that is diverse names expressing one thing for all the words in the said limitation inferre no more than this that Ecclesiasticall men are not to deale in matters of Diffamation but vvhere the matter of Diffamation is onely Ecclesiasticall and yet I reverence the Author thereof as a great man and of like excellencie in this Law as Papinian vvas in the other Law and this I thinke to be commendation enough for never any Lawyer in former age had more commendation or eulogie of vvit than himselfe had In the first of these cases if a man proceede by ordinary C. ad L. Iu 〈…〉 repetunda 〈…〉 um l. 1. 2. course of Law either for the punishment of the sinne as by presenting the offender to the Ordinary or indicting him before the Temporall Judge or by admonishing him by any charitable denunciation with purpose to amend him and to recall him from such offensive waies as hee is charged to walke in Or do any thing in Judgement for the defence ff de aqua plu arcenda l. 1. §. denique L. Proculus l. fluminum in fin ff de damne infecto ff de regul juris l. factum §. non videtur of his owne cause as in objecting some thing against the partie himselfe or his witnesses either for the elevating or discrediting of the truth of the cause or the testimony of the witnesses there can be no advantage taken against him for he cannot be said to defame which useth the libertie the Law gives him albeit in this case some advise that a man shal object none of these matters against another in judgement but when his cause necessarily requires such things to be spoken for the defence thereof and that the partie that objecteth them doth protest he doth it not with a calumnious minde but that the defence of his cause otherwise would not be justified But if any man doe any of these things malitiously with purpose rather to utter his owne cankred stomacke than L. Labeo de supell legat C. de famosiâ— libel l. 1. ff ad l. Aquileam l. si ita vulneratus that hee would benefit the Common wealth thereby then is hee punishable for although it be behoofefull for the Common wealth that bad mens faults should be manifested that so wickednesse may be punished yet is it not fit they should be uttered in reproach and choller Of the second sort although there be some that containe pettie crimes yet are they many times so frivolous as that they yeeld no action for frivolous and small things the Law regardeth not For such Diffamations as arise upon defects if the defects be such that the contagion thereof is to be feared unlesse the people be forewarned of the danger that may ensue thereon as in cases of Leprosie the Plague the French Pox and other like infectious diseases and that it be revealed with a sincere minde rather to cause men to refraine their companie for feare of the infection than of any malicious humors against the partie thereby to reproach him it is no Diffamation But if it be uttered in any spleene or choller against the partie defective then is it actionable for it is C. quando quib quarta pars l. 2. lib. 10. an uncivile part to lay open another mans defects but if the defects be such as it nothing availeth the Common wealth they should be knowne as where a man objecteth against another any imperfection of his minde or deformitie of his body
he that is charged with the Bastardie were borne in lawfull Matrimonie or out of Matrimonie or whether he were borne before Lib. Intrâ—c fol. 35. his Father and Mother were lawfully contracted together in Matrimony or after All which the Ordinarie makes inquirie upon by his owne Ordinarie and pastorall authoritie for that matters of Bastardy doe originally belong to the Ecclesiasticall Court and not to the Temporall And as hee findes the trueth of the matter by due examination to bee this or that so hee pronounceth for the same in his owne Consistorie and makes certificate thereupon to the Kings Court accordingly and as hee pronounceth so the Temporall Judges follow his sentence in their Judgements either for or against the Inheritance that is in question Speciall Bastardy they say is that where the Matrimony Bracton is confessed but the priority or posterioritie of the Nativity of him whose birth is in question is controversed which to my thinking if I conceive aright is no other thing than the generall bastardie transported in words but agreeing in substance matter with the other for even these things which they pretend make speciall Bastardie are parts and members of the generall Bastardie and are either confessed or inquired upon by vertue of the Kings writ in the same For first for the Matrimonie that is here mentioned it is there agnised both by the Plaintife in pleading of it and the Defendant in the answering thereto and therefore the Plaintifes plea is thus Thou art a Bastard for that thou wast borne before thy parents were lawfully contracted together in Marriage or before their Marriage was solemnized in the face of the Church To which the Defendants reply is I am no Bastard for that I was borne in lawfull Matrimony or that I was borne after that my Father and Mother were lawfully married together In both which you see there is a Marriage confessed and the question onely is of the priority or posteriority of the nativity of him that is charged withall whether it happened before or after his parents marriage which as they hold is the other member of speciall Bastardie and yet this prioritie or posterioritie of nativity by vertue of the Kings writ comes no lesse in inquirie to the Ordinarie in the case of the generall Bastardie than they make it to be traversable in the speciall Bastardie and therefore the writ to the Ordinary for generall Bastardie is conceived in this manner viz. Inqutratis utrum praedictus A. pars rea genitus vel natus Lib. Intrac fol. 35. fuit anto Matrimonium contractum inter talem Patrem suum talem Matrom suam vel post So that either they Glanvill lib. 7. cap. 15. must confesse there is no such bastardie as they make shew there is diverse from that that is tried before the Ecclesiasticall Judge or that themselves doe confound the members that should divide the same and make them one or the other as them list for both simply they cannot be unlesse they be distinguished with other notes and differences than hitherto I finde they are But to say the truth if these things be well weighed and considered speciall Bastardie is nothing else but the definition of the generall and the generall againe is nothing but the definite of the speciall for whosoever is born out of or before lawfull Matrimonie hee is a Bastard and he againe is a Bastard that is borne before or out of lawfull Matrimony so that these things to bee a Bastard and to bee borne out of lawfull Matrimony are convertible one with the other so then as it were very hard to make a divorce betweene these things that are so â—eere in nature one to the other being convertiblâ— termes one to the other so hard againe it were in policie to disjoyne these things in triall that are so neere in affinitie one to the other because they are the same in substance and nature as the other are and therefore Eodem jure conseri debent And also ne continentiae causarum dividantur 〈…〉 q. c. 2. cognorimus which is no lesse absurditie in Law than it is a grossenesse in other learning to deny a principle or generall Maxime of the profession And so farre hitherto as concerning the reasons and arguments that may be brought against this speciall Bastardie Now it resteth that I shew by ancient precedents that both these sorts of Bastardy have appertained to the Ecclesiasticall Courts onely and the first precedent is in the incident the other in the principall and the precedent is no lesse ancient than Henry the seconds time as that which happened under Alexander the third about the yeare of our Lord 1160. and the case is this A certaine man of Norwich Diocesse called R. H. had issue I. H. who had a Son called C. H. I. H. deceasing before R. H. Cap. Lâ—…or ext qui filii sunt legitimi his Father C. H. succeeded in his Grandfathers Inheritance his said Grandfather being dead but M. H. Brother to the said Grandfather pretending that the said I. H. was a Bastard draweth the said C. H. into the Temporall Court upon the Inheritance whereupon C. H. called the said M. H. into the Bishop of Norwich his Court for the triall of his nativity but the Bishop long protracting the cause C. H. appealed to the Pope who delegated the same cause to the Bishop of Excester and the Abbot of Hereford with order That if the said M. H. should not within two Moneths prove that which hee objected against C. H. that then they should intimate the same to the secular Judge before whom the inheritance was in question that he should not stay any longer upon the question of legitimation but proceed to Judgement in the cause of the inheritance Which president though it be long before the Statute of Bastardie made by Henry the 6. and so no writ went from the Temporall Court for the certificate thereof yet it shewes that the Temporall Judges in those dayes did not proceed to Judgement in the principall cause before the incident were decided by the Ordinarie and that they counted bastardy then to be of the Ecclesiasticall cognisance and that it was lawfull for him that was pretended to be a Bastard to appeale from his Ordinarie if either the Ordinarie detracted the determination thereof or were suspected of partiality And thus farre of the incident There is an other much like precedent to this in the same Kings dayes but that is in the principall for that the inheritance came not first in question but the legitimation it selfe and the case is as followeth A certain man called Ralph kept one Analine the wife of one Allin by whom he was supposed to have begot one Cap. Causam ext qui fil 〈…〉 sunt legitimi Agatha who also being married had a Sonne called Richard Ralphe going beyond the Sea left Richard and his Mother Agatha in possession of all his
of Tythes 181. 182 Judgement civile criminall mixt 6. publick 22. ecclesiastick 79 80 Juglers how to be punished 21 Ivo Bishop of Carnat Compiler of the Decrees 74 Jurisdiction Ecclesiasticall wherein impeached 121. 122. 146. not to be confounded with the temporall 133. 149. 158 Jury of twelve men not requisite to determine which is barren ground 227 228. say nothing but what the Judge dictates ib. mostly partiall because possible parties 229 Jus patronatus what 196 Justices of the peace their office 41 59 Justinian why he compiled the Code 31 K Kingdomes indivisible 113 Kings their Titles given by the Law 103. their supremacie 104. Fountaines from whence is derived Ecclesiasticall jurisdiction as well as Civile 123. with whom resideth the prime power to interpret Statutes 257 258 Knights of how many kindes 105. whether they or Doctors to have precedencie 106 Knutes Lawes 140 L Lands of the Church in what cases they may be aliened let or sold 63. vid. Church what Lands may be given by Will 137 Land-markes not to be removed 21 22 Lanternes upon what occasion invented 197 Lapses upon what occasion induced 199 Lateran Councell when holden and with what successe 171 172 Law what 2. publick private of Nature of Nations ib. the object of the Law 4 5. the multitude inconvenient 32. how to be interpreted 256. without penalties of small force 259. Canon Law what 73. excused ib. how in use with us 114 115. c. Civile Law what 3. most equitable ib. Division of it 4 5. seq how farre in use in this Land 88. seq like a sword in a scabberd 97. the necessitie thereof 272. For Marine controversies ibid. commerce of Princes 273. punishment of spirituall disobedience ibid. Recoverie of Ministers right ibid. Wils Weddings Burials 274. Cases in Chauncerie 275. in the Court of Requests 276. severally impeached by the Common Law 122. in marine matters 228. in Wils 134 135. in Tythes 146. in cases of waste ground 223. of Diffamation 237. of Bastardie 243. how it may be releeved 255. Common Law wherin defective 262 264. how it may bee supplyed ib. The word Law not still taken for the Common Law 158. Law Ecclesiasticall 159. animated by the King 160. not to bee confounded with the temporall ib. of what antiquitie ibid. wherein abbridged 121. how to be releeved 255. seq Saxon Lawes 138 139 140. Salick Law refuted 109. Law of Laps 199 Lawyers why no fees assigned to them 30. Temporall and Ecclesiasticall 159 Lay-men may not celebrate divine Service 66. nor hold Impropriations 214. when they began to hold Tythes in fee 162 163. their ill will to the Clergie 198 Lay-patrons vid. Patron Leases for how long to be let 45. 63 Legacies when due 11. how taken away 12. when to be paid 51. for pious uses 67. unjustly deteined under pretence of debts unknowne 264. what remedie for that abuse 265. vid. Testaments Legataries how defrauded and how they may bee releeved 266 Legates why so called 28. 40. their priviledges ibid. usually Civilians 96 Legitimation of children 58. how made amongst the Romans 246. how with us ibid. Leige-men 72 Lent things if denied how recoverable 7 Letters dimissorie 26 Libell what 19. the Authours and Concealers how punished ibid. Liberall Sciences 29 Like Reason like Law 156 157 Litigious cases what 62 Lombards the first Authors of Feuds 71 Lucius first Christian King of England 142 Lycurgus his uprightnesse 112 M Mad persons how provided for by the Law 11 Magdeburgenses vindicated from mis-allegation 169 Magistrates office 28 29 Mahomet alloweth Tythes 175 Maiors election and office 53 Maintenance of parents and children how it might be provided for 263 264. seq Manner of Tything how to be expounded 180 Manzeres what 244 March grounds 44 Marianus Scotus imperfect 171 Marine affaires 88 89 Marriners priviledges 42 Marriage what 9. 55. within what degrees forbidden 53. why to Priests 253. within the yeare of mourning punishable 55. in the husbands absence 62. impediments of marriage 83. second marriage prejudiciall to the children of the first 263 264. 268 Charles Martel the first in the Christian world that violated the right of Tythes 164. his fact related at large ib. 165. how censured by historians ib. why denied by some omitted by some 166. related by others 167. those French-men 168. 170. whence they had the storie ib. his fact imitated in other Nations 169 170. the vision concerning him 165. whether creditable 170 171 Martiall causes of Ecclesiasticall cognisance 98 Master of the Souldiers 45. of Requests 53. of the Ship 89 Mercie triumphoth over judgement 275 Mere-balkes not to be removed 21 22 Mettals tytheable 217. arguments to the contrary answered 219 220. how they are generated 218. they may renew but seldome doe ib. Micha's Disciples 198 Militarie discipline 48 Minerals vid. Mettall Ministers at what age to bee ordained 65. vid. Clerkes Minors estates how to be disposed of 59 Miracles not so frequent now as formerly 171 Monasteries not to be builded without the licence of the Bishop 51. their priviledges 184. and the bad use of them 185. the restraint thereupon ibid. Monetaries immunitie from service 43 Money why used 224 Monkes life and conversation 51. 184. originall of cloystered Monkes 187 Mother-Church 176 177 Mother-Village 44 Mort-maine the originall of it 183. in severall Nations 185. whence the name ib. now not necessarie ib. Myners immunitie 42 N Names not to be altered 100 Naturales filii who 244 Navigation beneficiall to the Common-wealth 271. requireth the practice of the Civile Law ib. Necessitie of the Civile Law in this Land 271 New-years gifts of ancient use 38 Nicene Canons urged 153 154. hardly escaped the fire of the Arrians ib. their authoritie questioned ib. what exemplary life they require of Monkes 184 Notaries place 46 Nothi who 244. Nothae febres ib. Natalia what 226 Novelles what 50 Nundinae why so called 29 O Oathes of severall kindes 7. of the deceased when good 56. Of women tumblers of no account ibid Obligations how they may bee excepted against 7. how many sorts of them 17 18. by words how released ib. Offences publick and private 18 Officers how to be chosen 41 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 what 191 Oratories in private houses 57 Ordeall fire and water 86 Order of succession 63. who may not take orders 77 Orders of Monkes tythe-free 200 Ordination of Ministers 76 Orphanes estates ill provided for by the Common Law 264 265. but may finde releefe at the Civile 266 P Pagans why so called 215 Pandects what 4. the division thereof 5. seq Parents affection to one childe how moderated 61. greevances how to be releeved 263 Parishes their bounds of Ecclesiasticall cognisance 151. the originall of them 152. 174. the severall acceptions of the word 153 Parliament of whom it consisteth 159. hath sole power to reforme the Statutes 256 Parricides how punished 23 Parts no accessories 233. similar and dissimilar ib. Pope Paschal his