matrimony or that I was borne after that my father and mother were lawfully married together in both which you sée there is a mariage confessed the question onely is of the priority or posteriority of the natiuitie of him that is charged withall whither it hapned before or after his parents marriage which as they hold is the other member of speciall bastardie and yet this prioritie or posterioritie of natiuitie by vertue of the Kings writ comes no lesse in inquirie to the Ordinary in the case of the generall bastardie than they make it to be trauersable in the speciall bastardie and therfore the writ to the Ordinary for generall bastardie is conceiued in this manner viz. Inquiratis Lib. Intrac fol. 35. vtrum praedictus A. pars rea genitus vel natus fuit ante matrimonium contractum inter talem patrem suum et talem Gâ—anuill Lib. 7. cap. 15. matrem suam vel post So that eyther they must consesse there is no such bastardy as they make shew there is diuerse from that that is tried before the Ecclesiastical Iudge or that themselues do confound the members that should diuide the same and make them one or the other as them list for both simply they cannot be vnlesse they be distinguished with other notes and differences than hitherto I find they are But to say the truth if these things be well weyghed and considered speciall Bastardy is nothing else but the definition of the generall and the generall againe is nothing but the definite of the speciall for whosoeuer is borne out or before lawfull Matrimonie he is a bastard and he againe is a bastard that is borne before or out of lawful matrimony so that these things to be a bastard and to be borne out of lawfull matrimony are conuertible one with the other so then as it were very hard to make a diuorce betwéene these things that are so néere in nature one to the other being conuertible termes one to the other so hard again it were in policie to disioyne these things in triall that are so neere in affinitie one to the other because they are the same in substance nature as the other are and therfore eodem iure censeri debent 1â— q. ca. 2. cognoâ—imus then nè continentiae causaruÌ„ diuidantur which is no lesse absurditie in Law than it is a grosnesse in other learning to deny a principle or generall Maxime of the profession And so far hitherto as concerning the reasons arguments that may be brought against this speciall Bastardy Now it resteth that I shew by ancient precedents both these sorts of Bastardy haue appertained to the Ecclesiastical Courts only and the first precedent is in the incident the other in the principall and the precedent is no lesse auntient than Henry the seconds time as that which hapned vnder Alexander the third about the yeare of our Lord 1160. the case is this A certaine man of Norwich Diocesse called R. H. had issue Ca. Lator. ext qui filij sunt legitimi I. H. who had a sonne called C. H. I. H. deceasing before R. H. his father C. H. succéeded in his Grandfathers in heritance his said Grandfather being dead but M. H. brother to the said Grandfather pretending the said I. H. was a Bastard draweth the said C. H. into the Temporall Court vpon the inheritance whereupon C. H. called the said M. H. into the Bishop of Norwich his Court for the triall of his natiuitie but the Bishop long protracting the cause C. H. appealed to the Pope who delegated the same cause to the Bishop of Excester and the Abbot of Hereforde with order That if the said M. H. should not within two Monethes prooue that which he obiected against C. H. that then they should Intimate the same to the seculer Iudge before whom the inheritance was in question that he should not stay any longer vpon the question of legitimation but procéed to Iudgement in the cause of the inheritance Which president though it be long before the Statute of Bastardie made by Henry the 6. and so no writ went from the temporall Court for the certificat therof yet it shewes that the Temporall Iudges in those daies did not procéed to iudgement in the principall cause before the incident were decided by the Ordinary that they counted bastardy then to be of the Ecclesiast cognisance and that it was lawful for him that was preteÌ„ded to be a bastard to appeal from his Ordinary if either the Ordinary detracted the determination therof or were suspected of parciality And thus far of the incident There is an other much like precedent to this in the same Kings dayes but that is in the principall for that the inheritance came not first in question but the legitimation it selfe and the case is as followeth A certain man called Raphe kept one Analine the wife of one Ca. Causam ext qui filij sunt legitimâ— Allin by whom he was supposed to haue begot one Agatha who also being married had a sonne called Richard Raphe going beyond the Sea left Richard and his Mother Agatha in possession of all his goods lands but newes being after brought that the said Raphe was dead beyond sea Frauncis the brother of the said Raphe spoyled the said Richard of the possession of all the goods lands he had of the said Raphe his grandfather for that he did pretend the said Agatha his niece Mother of the said Richard was not borne of lawfull Matrimonie so that neither shée her selfe nor her sonne ought to succéed the brother of the said Frauncis but that the inheritance thereof did belong vnto himselfe whereupon the said Richard being thus spoiled by Frauncis his great vncle obtained letters of restitution to the Bishop of London the B. of Worcester the B. of Excester vnder this forme That before they entred into the principall cause which was this whether the said Agatha were borne in lawfull Matrimonie or not they should restore the said Richard to his Grandfathers inheritance But the Bishop of Rome after vnderstanding by the said Delegats that the plea of inheritance within this Realme did not belong vnto the Church but vnto the King recald that part of his rescript which concerned the restitution of the said Richard to his inheritance gaue order to the foresaid Bishops to procéed in the cause of legitimation willing them to inquire whether the said Agatha were borne of the said Aneline in the life time of her husband Allin and when shée dwelt cohabited with him as with her husband or whether the said Raphe father of the said Agatha kept the said Aneline openly publikely while the said Allin yet liued And if they found it to be so then they should pronounce her the said Agatha to be a Bastard for that Aneline her Mother could not be counted to be a wife but a whore which defyling her husbands bed
in all instruments and the day and yeare when the instrument was made That the Oath of the deceased as concerning the quantitie of his goods so far as it toucheth the diuision of the same among his children be holden for good but that it be in no sort preiudicial to the creditors Of women tumblers such other of like sort which with the feates of their body maintaine themselues that no oath or suertie be taken of them that they wil not leaue that kind of life since such oath is against good maners and is of no validitie in Law That such gifts as are giuen by priuat men to their Prince néed no record but are good without inrolling of them and in like sort such things as are giuen by the Princes to priuat men That no person thing or gold of an other man be arested for another mans debt which they now call reprisals that he which is hurt by such reprisals shall recouer the foure double of the damages that he hath suffered therby and that one man be not beaten or stricken for another That he that cals a man into law out of his Territorie or Prouince where he dwelleth shall enter caution if hee obteine not in the suite against him he shall pay him so much as the Iudge of the Court shall condemne him in And that he who hath giuen his oath in Iudgemēt shal pay the whole costs of the suite but after shall bee admitted to prosecute the same if hee will so that hee put in suerties to performe it That such women as are vnindowed shal haue the fourth part of their husbands substance after his death and in like sort the man in the womans if the man or woman that suruiueth be poore That Churches or Religious persons may change grounds one with another For that one priuiledged persons right ceaseth against another that is in like sort priuiledged That such changes of manors Lands Tenements and Hereditaments as are made by Churchmen to the Prince be not fained matters and so by the Prince come to other mens hands who haue set on the prince to make this change and that the change be made to the Princes house only and if the Prince after conuey or confer the same vpon any priuat man it shall be lawfull for the Church to reenter vpon the same againe and to reposseed it as in her former right That in greater Churches Clerkes may pay something for their first admittance but in lesser Churches it is not lawfull That such as build found or indowe Churches which must goe before the rest doe the same by the authoritie of the bishop and that such as are called patrons may present their Clarkes vnto the Bishop but that they cannot make or ordaine Clerkes therein themselues That the sacred misteries or ministeries bee not done in priuate houses but bee celebrated in publicke places lest thereby things be done contrarie to the Catholicke and Apostolicke faith vnlesse they call to the celebrating of the same such Clerkes of whose faith and conformitie there is no doubt made or are deputed thereto by the good will of the Bishop but places to pray in euery man may haue in his owne house if any thing be done to the contrarie the house wherein these things are done shall be confiscated and themselues shall be punished at the discretion of the Prince That neither such as be dead nor the Corse or Funerall of them be iniured by the creditors but that they bee buried in peace That womens Ioyntures be not sold or made away no not euen with their owne consent In what place number forme maner and order the princes counsell is to sit and come together That he that is conuented in iudgement if he wilfully absent himselfe may be condemned after issue is ioyned That no man build a Chappell or Oratorie in his house without the leaue of the bishop and before he consecrate the place by praier and set vp the Crosse there and make Procession in the place and that before he builde it he allot out lands necessarie for the maintenance of the same those that shall attend on Gods seruice in the place and that Bishops be not non-residents in their Churches That all obey the Princes Iudges whether the cause bee Ciuill or Criminall they iudge in and that the causes be examined before them without respect of persons and in what sort the Processe is to be framed against such as be present and how against those that be absent The sixt Collation sheweth by what means children illegitimate may be made legitimat that is either by the Princes dispensation or by the fathers Testament or by making instruments of marriage betwéene the Mother and Father of the children so that the Mother die not before the perfecting of them or that she liue riotously with other men and so make her selfe vnworthie to be a wife That Noble personages marry not without instruments of Dowrie and such other solemnities as are vsuall in this behalfe that is that they professe the same before the bishop or minister of the place and thrée or foure witnesses at the least and that a remembrance thereof be left in writing and kept with the Monuments of the Church but that it shall not bee needfull for meaner persons to obserue the former solemnities That such as were indebted to the Testator or they to whom the Testator was indebted bee not left Tutors or Gardeins to their children that if any such bee appointed a Tutor a Curator bee ioyned to him to haue an ouersight of his dealing that Tutors or Curators are not bound by Law to let out the Minors money but if they do the interest shall be the Minors and the Tutor shall haue euery yeare two moneths to find out sufficient men to whom hee may let the money out to hyer for that it is let out at his perill that if the Minors state be great so that there will bee a yearely profit aboue his finding the Tutor shall lay vp the residue for a stock against he comes to age or buy land therwith if he can find out a good bargaine and a sure title but if the childs portion be small so that it will not find him then the Tutor or Curator shall dispose of the Minors state as he would dispose of his owne to which also hee is bound by oath How such instruments are inrolled before Iudges as concerning matters of borrowing and lending and such like may haue credit how men may safely bargaine either with writing or without writing if themselues be ignorant men and of the comparison of Letters and what credit there is to be giuen to an instrument when the writings and witnesses doe varie among themselues Of vnchaste people and such as Riot against nature whose punishment is death Of such as dispitefully on euery light trifle sweare by God and blaspheme his holy name against whom also is prouided the sentence of death That the
ought to be od in number that if they disagrée that which is concluded by the greater part may preuaile An arbiterment is a power giuen by the parties Litigant to some to heare and determine some matter in suite betwéene them to pronounce vpon the same to which they are to bind themselues vnder a penaltie to stand The first Booke hauing set out the first obiect of the Law which standeth in the persons who make vp the Iudgemēt as in the person of the Iudge himselfe the Aduocats Proctors and Clients there followeth in the second booke the second obiect of the same which is the Iudgemēts themselues which are to be commenced by a Citation that in a competent court fit for the same by a Libell offered vp in the court by the plaintife to the Iudge which is to containe the sum of that which is required in Iudgemēt where if the defendant do againe reconuent the plaintife he is to answere albeit the defendant be not of that Iurisdiction the libel being admitted the defendant is to ioyne issue and yet before either of them enter any further into the cause that there may be faire and sincere dealing in the same that all suspition of malitious dealing therin may be taken away each of them are to take an oath the Plaintife that hee doth not of any malice prosecute the suite against the Defendant or the Defendant of any malice maintain the suit against the plaintife but that they verily beléeue their cause is good and that they hope they shall be able to prooue the one his libell the other his exceptions if he shall put in any into the Court. The cause being begun delaies are often graunted if either there come any Holyday betwéene or any other like iust cause bee offered as for producing of witnesses and such like If there be no iust cause of delay then the Iudge is to goe on in the due course of Law prouided alwaies that more bee not demaunded by the plaintife than is due and that the cause possessarie bee handled before the petitorie and that hee that is spoiled bee first and before all things restored to that thing or place whereof he was spoyled or from which he was put fro yea though he haue nothing els to alledge for himselfe beside the bare spoliation it selfe If the one side or other wilfully or deceiptfully decline Iudgement the Iudge is to put the other in possession of that which is in demaund or at the lest to sequester the fruits and possessions of that which is in controuersie but if both parties appeare and ioyne issue affirmatiuely then is it but a question of Law and not a fact neither doth there remaine ought els to bee done by the Iudge but that hee giue sentence against him that hath confessed it and put his sentence in execucion But if issue be ioyned negatiuely then is the plaintife to proue his Libell so far as it consists in fact by witnesses which are to be compelled by Law if they will not come or appeare voluntarily by publicke and priuat instruments by presumptions by coniectures by oath which being done the Defendant in like sort is to bee admitted to proue his exceptions and cleere his prescription if hee bee able to alledge any in which hee is Plaintife neither is hee bound thereto before the Plaintife haue perfected and prooued his owne right After proofes are brought on either side and the same thoroughly disputed on by the Aduocats the Iudge is to giue sentence which he is to frame according to the Libell and proofes formerly deduced in the cause The sentence being giuen Execution is to bee awarded vnlesse there be an appeale made from it within ten daies by the Law but fiftéene daies by the Statute of this Land from the time the partie against whom sentence was giuen had knowledge thereof or vnlesse it be appealed incontinently at the acts and in writing before a publike notary or at the lest the partie against whom the sentence proceeded within due time take his iourney toward the higher Iudge to prosecute the same by whom the former sentence is eyther confirmed or infirmed in the second instance The third booke conteyneth such Ciuile matters and causes as are liable to the Ecclesiasticall Courts as the honest life or conuersation of Clerks and theyr comely comportment in all their demeanor with what women they are to cohabit and dwell with whereby they may be frée from all suspition of ill life and with whom not which of them may be maried 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 vnto their cure and if they retorne not vpon processe sent out against them how they are to be punished namely by depriuation 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 iust cause but if any Clerk or Minister be sicke and his disease be curable he is to receiue the benefit of his prebend or dignitie in his absence as though he were present but if it be contagious or vncurable then is he to be put from the exercise of his office and a helper or coadiutor to be ioyned vnto him and they both to be mayntained of his stipend Prebends or dignities are to be got by institution which are to be giuen by the Bishop or his Chauncelor or such other as haue Episcopall iurisdiction without which neither any benefice is lawfully gotten or can lawfully be reteyned Benefices not void ought neyther to be granted neyther to be promised but such as are void ought to be granted wythin sixe monthes after knowledge of the voydance thereof otherwise the grant of them diuolueth commeth vnto the superiour he that causeth himselfe to be instituted into a benefice the Incumbent therof being aliue himselfe is to be deposed from his orders While any Benefice or Bishopricke is void nothing is to be changed or innouated in it and such gifts sales or changes of Ecclesiastical things as are made by the Bishop or any other like Prelate wythout the consent of the Chapiter are void in Law and such Benefices as do become void are to be bestowed without any impayring 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 Tractats 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
who was péerelesse among all Quéenes that euer went before her and vnmatchable as I verily doe beleeue by any that euer shall succéed her as their magnanimitie whereby they subdued not only their domesticall enemies but vanquished euen their forraine foes were their designements neuer so daungerous not shewing any token of discouragement either in the treasonable attempts of the one or in the malitious complotiments of the other What an excellent work of hers was that that then when all her neighbour Kingdomes round about her were drunke with the cup of the fornication of the whore of Babilon shee alone came out of Babilon and so continued constantly to the end mauger the threats of the red fierie Dragon and the floods of water he cast out of his mouth after her How excellent did she shew her selfe in those two vertues which doe chiefly preserue Princes States that is Mercie and Iudgement the Records of her time do shew so that I may spare to remember any by name which happily would be not well taken And yet truth it is that mens gouernment is more agréeable to Nature than womens is whom God in the beginning put in subiection vnder man and who for the most part are by Nature weake in bodie and thereby vnable to put in execution the great affaires of a Kingdom and vnsetled in iudgement and so hardly can determine that which is right and settle themselues thereupon yet by the numeration of certaine ill gouerning Quéens to conclude a generalitie against all gouernment of women is but an ill kind of arguing for euen by the like reason a man might conclude against Kings of which sort although there hath bin many good whom God hath vsed as instruments to worke great good vnto people in euery kingdom yet more of them haue bin euill as the Stories of euery country will shew and to abridge God of his power that he cannot as well gouerne by a woman as by a man when it is his good pleasure so to doe were great iniurie to God and a great discredit to all woman kind but to returne thither where I left In succession of Kings a question hath béene where the King hath had sons both before hee came to the Kingdome and after which of them is to succéed he that was borne before the Kingdom as hauing the prerogatiue of his birth-right or he that was dorne after as being brought into the world vnder a greater planet than the other neither hath there wanted reason or example for each side to found themselues Herodot lib. 4. Iustin lib. 11. Plutarchus in vita Artoxerxis on for Xerxes the son of Darius King of Persia being the eldest birth after his father was inthronised in the Kingdom carried away the Empire thereof from his brother Artemines or Artebarsones 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 was Guiâ—â—ard l. 1. Histor â—lonâ—us Decad. 2. lib. 6. Mich. Ritius lib. 2. de regib Hâ—â—gar Sigeb in â—roni 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 contrarie common vse of succession in these latter daies hath gone to the contrarie and that not without good reason for that it is not meet that any that haue right to any succession by the progatiue of their birthright such as all elder brethren haue should be despoiled therof except there be some euident cause of incapacitie to the contrarie Beside sundry contentions haue risen in kingdomes betweene the issue of the eldest sonne of the king dying before his father and the second brother suruiuing the father who should Raigne after the Father the Nephew challenging the same vnto him by the title of his fathers birthright and so by the way of representation for the eldest son euen the father yet liuing beares the person of the father how much ff de liberis posthumis l in suis then rather his father being dead Whereupon the Law cals as well the sonne Filiusfamilias as the father Paterfamilias for that the son euen during the fathers life is as it were Lord of his fathers state the other claiming as eldest son to his father at the time of his death vpon which title in old Pausanias lib. 3. Historiaris time there grew controuersie betwéene Areus the son of Acrotatus eldest son to Cleomines King of Lacedemon and Cleomines second son to Cleomines and vncle to the said Areus but after debate thereof the Senate gaue their sentence for Areus right against Cleomines beside Eunomus Plutarch in vita Licurg King of Lacedemon hauing two sons Polydectes and Lycurgus Polydectes dying without children Lycurgus succéeded in the kingdom but after that he vnderstood Polydectes widow had a child he yeelded the Crowne to him wherein he dealt far more religiously then either did king Iohn who vpon like pretence not only put by Arthur Plantaginet his eldest brothers son from the succession of the kingdom but also most vnnaturally tooke away his life from him or king Richard the third who most barbarously to come vnto the kingdom did not only sley 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 Bartel l. si viâ—ae matre C. de bonis maternis primogeniti filii noÌ„ excludâ— secuÌ„dogenituÌ„ in regno doe not obscurely note that controuersie of like matter had like to growne betwéene Richard the second and Iohn of Gaunt his vncle and that hee had procured the counsell of sundry great learned men to this purpose but that he found the hearts of sundry Noblemen of the Land and specially the citizens of London to bee against him whereupon hee desisted from his purpose and acknowledged his Nephewes right Yet notwithstanding when as Charles the second Vicerius in vita Henricâ— 7. King of Cicill departed his life and left behind him a Nephew of Charles his cloâ—st son surnamed Martellus and his younger son Robert and the matter came in question which of them should succéede Clement the fifth gaue sentence for Robert the younger son of Charles deceased against the son of Martellus being Nephew to his Grandfather and so caused the said Robert to be proclamed king of both Caecils Clem. pastoralis de re iudicata which was done rather vpon displeasure that Pope Clement conceiued against the Emperour Frederick than that there was iust cause so to doe And yet Glanuill an old reuerent Lawyer of this Land and Lord chiefe Iustice vnder Henry the second séemeth to make this questionable here Glanuil l. 7. c. 3. in England who should bee preferred the Vncle or the
like former precedents but needed euery one almost a newe decision And the cause why Princes in the beginning granted to Clergy men these causes and their Consistories for from Princes were deriued in the beginning all these authorities as also the Religion it selfe is setled and protected in Kingdomes by Princes before there can be had a frée passage thereof was one that the Clergie men thereby might not be drawen from their prayer and exercise of diuine seruice to follow matters of suites abroad secondly that they were like to haue a more speedy and better dispatch and more indifferency before a Iudge of their owne learning than before a Iudge of an other profession for this is true and euer hath bin and I feare euer wil be vnto the end that is said in the glosse and is in common saw Laici opido semper infesti sunt Clericis Lastly that Clerks suits quarrels should not be diuulged and spread abroade among the lay people that many times to the great discredit of the whole profession specially in crimminall matters wherein Princes aunciently 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 publike disgrace before he was degraded by the Bishop and his Clergie and so was executed 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 reuerent worthy the dignity of the Ministerie whose office is most honorable also for that it is more auncient than any Papisticall immunitie is The third and last reason that moues me that I should beléeue that these Titles sometimes were here in exercise among vs in the Ecclesiastical Courts is that I find Glanuill Glanuill lib. 12. cap. 15. de Legibus Angliae who himselfe liued vnder Henry the second and was Lord chiefe Iustice of England in his daies sort to the Ecclesiasticall Courts the plea of Tenements where the suit is betwéene two Clerks or betwéene a Clerk and a Lay man and the plea is De libera eleemosina feodi Ecclesiastici et non petitur inde recognitio whether the frank fée be lay or Ecclesiasticall where also is further added that if it be found by the Idem lib. 13. cap. 25. verdict of legall and sufficient men that it is of Ecclesiastical fée it shall not be after drawen to lay fée no though it be held of the Church by seruices thereunto due and accustomed secondly whereas land is demaunded in marriage by the husband Idem lib. 7. cap. 18. or the wife or their heire and the demaund be against the giuer or his heire then it shal be at the choice of the demaunder whether he will sue for the same in the court Christian or in the secular Court For saieth he it pertaineth vnto the Ecclesiasticall Courts to hold plea of dowries which he calleth Maritagia if so be the plaintife so make choice of those Courts for the mutuall affiance that is there made betwéene the man the wife for marriage to be had betwéene them there is a dowry promised vnto the man by the womans friends neither shall this plea be caried vnto the temporall Courts no though the lands be of Lay fée so that it be certein the suit is for a Dowry but if the suit be against a stranger it is otherwise thirdly the Kings prohibition forbidding Anno 24. Ed. 1. the Clergie the dealing in many things which are of lay fée forbids them no one thing that is of Ecclesiasticall fée and to shew the Princes meaning precisely therein that it was not his intent by that Prohibition to restraine the Ecclesiasticall Iudges for procéeding in matters of Ecclesiasticall fée he sets downe in very tearmes these words Recognisances touching Lay fée as though he would hereby signifie to all men that he would not touch matters of Ecclesiasticall fée which did then wholy properly appertaine to the triall of the Christian Court as hath bin before vouched out of Glanuill who for the place he then held may be thought to haue knowen the Lawes of England as then they stood and the right interpretation thereof aswell as any man then or now lyuing And yet because there were some things of Lay fee which the Clergie then had cognisance of as yet they haue in some measure as causes and matters of Money chattels and debts rysing out of Testaments or Matrimonie because he would haue whatsoeuer belonged to the Clergie to be vndoubted excepteth them from those things which belong to the Crowne and dignitie and leaueth them to the ordering of the Christian Courts which is nothing else but an affirmance of that which Glanuill and the rest of the auncient English Lawyers Bracton and Britton said before Lastly the prouinciall Constitution Aeternae de poenis made in the dayes of Henry the 3. plainly shewes that in those dayes all personall suits betwéene eyther Clerke or Clerke or betwéene Lay men complaynants and Clerkes defendants for euer the Plaintife must follow the Court of the Defendant which to the Ecclesiasticall men then was the Ecclesiasticall Court were tried by the Spirituall Law and not by the Temporall Law which practize for that it doth accord with the iudgement of those auncient Lawyers that haue bin before cited and with the Prohibition it selfe which there restraineth only calling of Lay men to make recognisances of matters of Lay fée it may be a great argument that these things were of the Ecclesiasticall right in those dayes from which I sée not how the Ecclesiasticall Courts are falne for I sée neither Law nor Statute to the contrarie vnlesse perhaps they will say the Statute of the 25. H. 8. cap. 19. 25. of H. 8. cap. 19. toke the same away as being hurtfull to the kings Prerogatiue royall repugnant to the Lawes Statutes and Customes of this Realme which whether they be or be not taken away by the stroak of that Statute I leaue it to men of better experience in these matters than my selfe to iudge But yet this I find by experience to be true That where there are two diuers Iurisdictions in one Common wealth vnlesse they be carefully bounded by the Prince an equall respect carried to both of them so far as their places and the necessarie vse of them in the Common wealth requires as the aduancement of the one increaseth so the practize of the other decreaseth specially if one haue got the countenance of the State more than the other which is the only cause at this day of the ouerflowing of the one and the ebbing of the other but it is in his Sacred Maiestie to redresse it not by taking away any thing from that profession that is theirs but by restoring to this profession that which is their owne but hereof 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 For
the rest of the matters that belong to the triall of the Ecclesiasticall Courts some are acknowledged to be absolutely in vse some other are challenged to be but in a certein measure in vse In absolute vse are those which neuer had any opposition against them which almost are those alone which belong to the Bishops degrée or order for all things which come within the compasse of the Ecclesiasticall Law are either belonging to the Bishops degrée or his Iurisdiction To his degrée or order belong the ordering of Ministers and Deacons the confirmation of Children the dedication of Churches and Churchyards and such like none of which haue béen challenged at any time to belong to any other Law The second sort is of them that belong to the Bishops iurisdiction which is partly voluntarie partly litigious Voluntarie is when those with whom the dealing is stand not against it but litigious it is when it is oppugned by the one part or the other Of this latter sort many things in sundry ages haue bin cald in question but yet rescued and recouered againe by the wise graue Iudges themselues who haue found the challenge of them to be vniust But what doth belong to either of them in priuat or what causes do appertaine to the whole Iurisdiction in generall because they haue bin alreadie particulerly set downe by that famous man of worthy memory Doctor Cosin in his learned Apologie for certaine Cos in in his Apologie part 1. c. 2. procéedings in Ecclesiasticall Courts I will not make a new catalogue of them but send the Reader for the knowledge thereof vnto his Booke but yet in my passage will I note which of them haue bin most chiefly oppugned and as occasion shall fall out speak to them And thus much as concerning those parts of the Ecclesiasticall Law which are here in vse with vs Now it followeth to shew whereby the exercise of that Iurisdiction which is granted to be of the Ciuile and Ecclesiasticall cognizance is defeated impeached by the Common Law of this Land which is the third part of this Diuision The impeachment therefore is by one of these meanes by Praemunire by Prohibition by Iniunction by Supersedeas by Indicauit or Quare impedit but because the fower last are nothing so frequent nor so harmfull as the others and that this Booke would grow into a huge volume if I should prosecute them all I will only treat of the two first and put ouer the rest vnto some better opportunitie A Praemunire therefore is a writ awarded out of the kings Bench against one who hath procured out any Bull or like processe of the Pope from Rome or elsewhere for any Ecclesiasticall place or preferment within this Realme or doth sue in any forteine Ecclesiasticall Court to defeat or impeach any Iudgement giuen in the Kings Court whereby the bodie of the offender is to be imprysoned during the Kings pleasure his goods forfeyted and his lands seized into the Kings hand so long as the offender liueth This writ was much in vse during the time the Bishop of Romes aucthoritie was in credit in this land and very necessary it was it should be so for being then two like principal authorities acknowledged within this Land the Spirituall in the Pope and the Temporall in the King the Spirituall 25. Edw. 2. 27. Edw. 3. ca. 1. 38 Edw. 3. ca. 1. 2. 7. Rich. 2. ca. 12. 13. Rich. 2. ca. 2. 2. H. 4. cap. 3. grew on so fast on the temporal that it was to be feared had not these statutes bin prouided to restraine the Popes interprises the spirituall Iurisdiction had deuoured vp the temporall as the temporall now on the contrary side hath almost swallowed vp the spiritual But since the forreine authoritie in Spirituall matters is abolished and eyther Iurisdiction is agnised to be setled wholy and only in the Prince of this land sundry wise mens opinion is there can lye no Praemunire by those Statutes at this day against any man exercising any subordinat Iurisdiction vnder the King whether the same be in the kings name or in his name who hath the same immediatly from the King for that now all Iurisdiction whether it be Temporall or Ecclesiasticall is the Kings and such Ecclesiasticall Lawes as now are in force are called the Kings Ecclesiasticall Lawes and the Kings Ecclesiasticall Courts For that the King cannot haue in himselfe a contrarietie of Iurisdiction fighting one against the other as it was in the case betwéene himselfe and the Pope although he may haue diuersitie of Iurisdiction within himselfe which for order sake and for auoyding of confusion in gouernment he may restraine to certeine seuerall kinds of causes and inflict punishment vpon those that shall go beyond the bounds or limits that are prescribed them but to take them as enemies or vnderminers of his state he can not for the question here is not who is head of the cause or Iurisdiction in controuersie but who is to hold plea thereof or exercise the Iurisdiction vnder that head the Ecclesiasticall or temporall Iudge Neyther is that to moue any man that the Statutes made in former time against such Prouisors which vexed the King and people of this land with such vniust suits doe not onely prouide against such processe as came from Rome but against all others that came elsewhere being like conditioned as they for that it was not the meaning of those Statutes or any of them thereby to taxe the Bishops Courts or any Consistory within this land for that none of them euer vsed such malepert sawsinesse against the King as to call the Iudgements of his Courts into question although they went far in strayning vpon those things and causes which were held to be of the Kings Temporall cognisance as may appeare by the Kings Prohibition thereon framed And beside the Archbishops Bishops and other Prelats of this Land in the greatest heat of all this businesse being then present in the Parliament whith the rest of the Nobilitie disauowed the Popes insolencie toward the King in this behalfe and assured him they would ought to stand with his Maiestie against the Pope in these and all other cases touching his Crowne and Regalitie as they were bound by their allegeance so that they being not guilty of these enterprises against the King but in as great a measure troubled in theyr owne Iurisdiction by the Pope as the King himselfe was in the right of his Crowne as may apppeare out of the course of the said Statutes The word Elsewhere can in no right sence be vnderstood of them or their Consistories although some of late time thinking all is good seruice to the Realme that is done for the aduancement of the Common Law and depressing of the Ciuill Law haue so interpreted it but wythout ground or warrant of the Statutes themselues who whollie make prouision against forreine authoritie and speak no word of domesticall proceedings But
and penalties as well against them which carried away any prediall Tythes before the tenth part thereof were iustly diuided from the same or otherwise agréed for with the owner thereof as also against those that did let or hinder the owner thereof his deputie or seruant to view take or carrie away the same Inacting further that the party so substracting or withdrawing any of the Tythes obuentions profits commodities or other dueties aforesaid might or should be conuented or sued in the kings Ecclesiasticall Court by the party complainant to the intent the kings Ecclesiasticall Iudge might then and there determine the same according to the kings Ecclesiasticall Lawes And that it should not be lawfull for the Parson Vicar or any other owner or farmer thereof contrary to the same act to conuent or sue any withholder of Tythes or any other like dueties before any other Iudge than Ecclesiasticall excepting only out of the said Statute things contearie or repugnant to or against the effect and meaning of the Statute of Westminster the second the fift Chapter the Statuts of Articuli Cleri Circumspecte agatis Sylua Cedua the treaties De Regia Prohibitions matters against the Statute of Anno primo Edwardi primi Capite decimo and such other matters beside wherin the Kings Court of right ought to haue Iurisdiction Notwithstanding all which good prouision of ancient kings before the Conquest and moderne kings since the Conquest for the assuring of the suite of Tythes to the Ecclesiasticall Courts onely and the continuall possession that the Ecclesiasticall Courts haue had of the same deduced from so auncient time as hath béene before shewed and so often obtained in contradictorie iudgement as the consultations thereupon graunted doe testifie yet sundry men in sundry ages of this Land haue by wrenches and subtil denises which are odious in Law and are by all godly and wise Iudges by all possible meanes euermore to be restrained raised vp matter out of the said statute themselues contrarie to the true sence and meaning therof to draw the tryall of most of those matters away from the Ecclesiasticall Courts So that those Statutes which then were intended for the good of the Ecclesiasticall L. legata innâ—â—liter ff de adimendis legatis l. 2. ante fineÌ„ C. dâ— iureâ—ur propter caluminaÌ„ dando Courts are now become the vtter ruine and ouerthrow of the same contratie to the rule of the Law and common reason that things which were purposed for one end should worke vnto another end The first aduantage they take against the Ecclesiasticall Courts out of these Statutes is gathered out of the twentie seuen and thirtie two of Henry the eight where it is 27. 32. Hen. â— ordered that all the Kings subiects shall pay their Tythes according to the laudable vses and customes of their parishes and places where such Tythes grow and become due which albeit is vndoubtedly meant of Ecclesiasticall customes triable at the Ecclesiasticall Law and so euer held till now of late that men thinke all too much that goeth beside their owne nâ—â— yeâ— there want not in these daies which goe about with all might and maine to drawe away these things vnto the Temporal Courts as belonging to the Temporall Crowne and dignitie Wherein they do wrong not only to the kings Ecclesiasticall Courts to spoile them â—â— their auncient Iurisdiction but also do in 〈◊〉 to the king himselfe as though he had but 〈◊〉 proper Iurisdiction belonging to his Throne and seat of Maiestie that which were done by his Ecclesiasticall power were done against his Crowne and Dignitie whereas they are equally vnired in him and his Throâ—â— is no lesse 〈◊〉 vp by his Ecclesiastical power thâ—â— it is vpholden by his Temporall authoritie And therefore a méere Paradox is that that they so constantly affiâ—â—â— that customes in payment of Tythes are matters of Temporall cognisance only and not of spirituall cognition For as there 〈◊〉 Seculer customes such aâ—â—â—e the customes of Manorâ— and Lordships where the Lord hath his Rent hiâ— heâ—â—â—t his reliefe and seruice and the tenant againe doth his homage and fealtie according to the Nature of his Tenure which seculer customes the fornamed statute De Regia Prohibitions forbiddeth Ecclesiasticall Iudges to deale in So also there are Ecclesiastical customes such as is the payment of Tithes and other Ecclesiasticall duties to which common Lawyers are not to put their hands but to abstaine from them as dedicated to the vse and tryall of the spirituall Courts Otherwise would neither the auncient authors of the Legantines and Prouinciall constitutions of this Land the eldest of which are equall with the daies of Henry the third and the Prouincial c. quoniam de decimis youngest of them endeth in the raigne of Henry the fift euer haue changed so many seuerall customes of payment of Tythes as then were within the Land and in stéed of them haue brought in one vniforme payment of the same as is at this day vsed saue where either the negligence of the Parsons or the couetousnesse of the Parishioners hath in some point changed the same Neither would these statutes of Henry the eight euer haâ—e ordered the people should pay their Tythes after the laudable customes and vsages of the Parishes where they grew if the vsage and custome of the payment it selfe had not beene subiect to the Ecclesiasticall cognisance for in vaine shall 〈◊〉 sue for that the Law allowes him no course to come by of it be denyed in the speciall L. Finali ff de officio eius cui mandata est iurisd l. 3. ff de pena legata 〈…〉 belonging â— that 〈…〉 iâ— vndoubted Law where 〈…〉 Iuriâ—diction granted 〈◊〉 in like manner granted all thâ—se things without which â—hat authoritie or Iurisdiction cannot be perfected or performed And therefore it is without question â—â— Tythes by the saiâ— Statut◠〈…〉 by the Ecclesiasticall law and not 〈…〉 so 〈◊〉 the Custome whereby they are pâ—â—d iâ— onely â—â—â—able at the Ecclesiasticall Law Otherwise this 〈…〉 follow thereupon which in all other 〈◊〉 beside this of â—urâ— iâ— a great absurditie Bartol l. nulli C. de iudiciis Glos. c. significanerunt de indiciis thâ—â— the 〈◊〉 of 〈…〉 which the Ciuilians call 〈…〉 â—ill be 〈◊〉 and â—â—â—oyned which by â—ll good poliâ—ie together with all her parâ—s emergent or 〈◊〉 ought to be 〈◊〉 discussâ—â— and determined before one and the selfe same Iudge one I mean not in number but one in profession for otherwise I should by this assertion bar Appeales which is not mine intent Which course if it were held here in England causes should not be drawne péecemaele in such sort as Medea tore her brother limme-meale and one part of it carried to this Cicero pro Murena Court another to that like vnto the rent limmes of the child that were cast here and there by Medea thereby to hinder her father from pursuing of her but
his credit salued by recompence in money as the Iudge or Iurie vpon proofe of his worth and place shall esteeme it and tax it In these Actions he that sued ad publicam vindictam and had followed it so far as that he had brought it to a Recantation or a publicke disgrace could not haue recompence of his credit by money saue onely in case of commutation neither hee that had got his credit valued by money could haue a publike disgrace also inflicted for his satisfaction but what way he had chosen with that he must haue rested contented for that irèful mens wraths otherwise would neuer haue bin satisfied the prosecution of these actions otherwise wold be cōfounded These two kinds of procéedings the Princes and Sages of former ages seeme to haue sorted to the two kindes of Iurisdiction that are amongst vs the one Spirituall the other Temporall and therefore the Law of the Land it selfe saith in a cause of Diffamation when money is not demanded but a thing done for punishment of sin which is all one as when the Ciuilians say when it is done ad publicam vindictā it shall be tried in the spiritual courts wherupon by argument of cōtrary sense it followeth that where the punishment of sin is not required but amends in money is demanded there it is to be tried in the temporal Court for the law would that euery man should haue his remedy agréeable to reason in what sort him best liketh And therfore be the fault what it may be that the words of the Diffamation do sound vnto as long as it stāds but in words the party doth not take vpon him to iustifie the matter that is comprised vnder those words and doth séeke but for the punishment of the slanderous words only so long it is to be tryed at the Spirituall Law for the Law speaketh in generall in cases of Diffamation where punishment of sin only is required so that where a man is called Traitor Felon or Murtherer or any other crime belonging vnto the Cōmon Law being euery one of them words of great diffamation so the partie therein séeke punishment onely and not his priuat interest there the Spiritual Law is to hold plea thereof For where the Law doth not distinguish there neither ought we to distinguish but the Law hath said in general that causes of Diffamation whose prosecution is thus qualified doe belong vnto the triall of the spiritual Law and therfore euen those cases before remembred where the party followeth this kind of prosecution ought by that Law to belong vnto the Spirituall court as on the contrarie side Spiritual causes of Diffamation being propounded to a pecuniarie end ought to be ordered in a Temporall Court But where any man takes vpon him to iustifie the crime that he hath obiected there either Court is to hold plea of the crime that properly belongeth to that Court for that now no longer words are in question but matter is in tryal whether the partie diffamed hath indéed committed that offence that he is charged withall or no which can bee tried in no other Court than in that to which it doth properly appertaine And that this was the Course aunciently held in matters of diffamation betwéene the Ecclesiasticall and Common Law it is manifest by the Statute of 2. of Edward the 3. chapter 11. 2. Edw. 3. c. 11. where although the Statute taxeth the peruerse dealing of such as when they had béene indicted before the Sherifes in their Retorne after deliuered by Inquest before the Iustice of the Assise did sue the indictors in the Spiritual Court surmising against them that they had diffamed them and therefore in that case forbad the like suits for that Iustice thereby was hindered and many people were feared to indict Offenders yet that Statute plainly sheweth that in all other cases of Diffamation rising out of Temporall crimes beside this the Ecclesiasticall Law had the cognisaunce and that this was forbidden it was not for that that words of this nature could not be censured at the Ecclesiasticall Law when punishment of sin only is required but for that it was not fit that those things which had béene once ordered in one Court should be called againe to examination in another Court and therefore the generall procéeding in matters of Diffamation is not there prohibited but the particuler crossing of matters after iudgement is there reprehended So that that distinction I haue here before spoken of which taketh vpon it to determine when a case of Diffamation is of the Temporal cognisance when of the Ecclesiastical cannot here take place for that it is contrarie to the former Statute or Decrée that diuided these cases into Temporall or Ecclesiasticall cognisance by the varietie of the prosecution thereof and that it is contrarie to the auncient practise that hath confirmed this prosecution in either Court but specially in the Ecclesiasticall Court which hath still holden the triall of such Diffamations wherein sin hath béene onely sought to be punished vntill now of late that men haue stept ouer the bankes of their authoritie and confounded either Iurisdiction with the promiscuous acts one of another when as the Statute it selfe is plaine that the authors of this Statute or Decrée whethersoeuer you call it which set these bounds to either law in procéeding vpon matters of Diffamation respected not so much the qualitie of the crime vpon which the Diffamation grew as the manner of procéeding therein ayming in the one at publicke vindict which is to be sought out of the Ecclesiasticall law and in the other at priuat interest which is to be had out of the Temporall Law Neither is an Action of Diffamation a matter of so light esteeme or qualitie a mans fame or good name being in equal ballance with his life as that it should be drawne away to be attendant on any other action that is of smaller weight or importance than it selfe is for this is one of those Actions which for the speciall preheminence thereof are called Actiones praeindiciales that is such that draw smaller causes vnto them but themselues are drawne of none other but such as are like principal or greater than themselues are So that vnlesse the manner of procéeding bring these causes vnder the compasse of the common Law in such sort as I haue before shewed the coopling of them with another matter of the same Law will hardly bring them vnder the triall thereof For that there be few actions greater than it selfe is so that if the crime be Ecclesiasticall howsoeuer it toucheth a Temporall cause the tryall shall be still at the Ecclesiasticall Law And the same that I say of Diffamations rising out of Ecclesiasticall crimes I hold also to bee true in Diffamations springing out of Temporall crimes where punishment is required for the offence committed and amends in money is not demaunded vnlesse happely that grow of penance inioyned which the offender wil redéeme by
the Ecclesiastical Law taketh place it was reiected by the Earles and Barons with one voice and answere made that they would not change the Lawes of the Realme in that point which to that time had bin vsed and approued All these cases of Bastardie in other Lands whither they be such or not such are triable by the Ecclesiasticall Law But here with vs it is questionable to what Law and how far they doe appertaine the Ecclesiasticall or Temporall For the matter of Bastardie what it is the Ecclesiasticall Law the Temporall differ not but there is a diuersitie betwéene them in the prosecution therof for the Ecclesiasticall Law bringeth it two waies in Iudgement the one incidently the other principally but the Common Law maketh two sorts thereof the one generall the other speciall But first of the Ecclesiasticall diuision then of the temporall Bastardie is then said to be incidently propounded when it is laied in bar of some other thing that is principally commensed as when one sueth for an inheritance that he pretendeth is due vnto him by his natiuitie an other crosseth him therein by obiecting against him bastardie with purpose to exclude him from his action in the inheritance here the barre is in the incident because it comes exclusiuely to the action of inheritance but the action for the inheritance it selfe was in the principall for that it was begun in consideration of the inheritance and not with intent to proue himselfe legitimate which happilie he neuer dreamed of when he first entered his action for the inheritance In which case he which is charged with the bastardie may require himselfe to be admitted to proue himselfe legitimate before the Ecclesiasticall Iudge to be pronounced to be such a one Ad Curiam enim Regiam non pertinet agnoscere de Bastardia Glanuill Lib. 7. cap. 13. Against which the Law of the Land doth not oppose it selfe but acknowledge it to be the right of the Church And yet to auoid all subtil surrepticious dealing in this behalf it hath 9. Hen. 6. cap. 11 set downe a wary and cautelous forme of procéeding by which the same shall be brought vnto the Ordinary such as haue interest in the suit may haue notice therof and time to obiect in forme of Law against the proofes and witnesses of him that pretends himselfe to be Mulier if they so think good and what shall be certified herein by the Ordinarie as concerning the natiuitie of him that is burthened to be a Bastard that is whither he were borne before or after his Glanuill Lib. 7. cap. 15. Parents marriage shall be supplied in the kings Court eyther by Iudging for or against the inheritance But Bastardie is then taken to be principally propounded when eyther one finding himselfe to be gréeued with some malicious spéech of his aduersary reproching him with bastardy or himself fearing to be impeched in his good name or right doth take a course to cléere his natiuitie by calling into the law him or them by whom he is reproched or feareth to be impeached in his right and credit to see him to prooue himself legitimate to alleage obiect against it if they oght haue or can to the contrarie which if eyther they doe not or doing to the vtmost what they can can bring no good matter against his proofe but that it stands still good and effectuall in Law to all intents purposes whatsoeuer although perhaps hereby he shall not be able to carry the inheritance both for that it apperteineth not to the Ecclesiasticall Law to Iudge of lands tenements or hereditaments also for that there is a precise forme set downe by statute how suits of this nature shall be recouered yet if no oppositor or contradictor appeare herein the suit was only taken in hand against such as eyther openly reproched him or secretly buzzed abroad slanderous spéeches as concerning his legitimation it is not to be doubted but by an accident also it wil be good for the inheritance it selfe for where a mans legitimation is sufficiently prooued thereon followeth all things which naturally thereto belong But if any man vrge the forme of the statute 9. Hen. 6. cap. 11. being interessed therein then must it necessarily be followed for that otherwise it would be thought all that was done before so far as it may concerne the inheritance although it were but in a consequence were done by collusion This kind of procéeding hath bin much more in vse in former times than it is now neuer any opposition made against it but now it goeth not altogether cléer without contradiction as many other things are offensiuely taken which notwithstanding haue good ground sufficient warrant for them And so far as concerning the Ecclesiasticall procéedings in this businesse Now to the temporall sorts of them Generall Bastardie is so called because it comes in incidently and is in grosse obiected against some that sueth in a matter principall to disappoint his suit This suit because it is of the Ecclesiasticall cognisance it is sent by the Kings writ to the Ordinary with certeine additions for more perspicuitie of the inquirie thereof as that whether he that is charged with the Bastardie were borne in lawfull Matrimonie or out of Matrimonie or whether he were borne before his Father Mother were lawfully contracted together in Matrimonie or after All which the Ordinarie makes Lib. Intrac fol. 35. inquirie vpon by his owne ordinarie and pastorall authoritie for that matters of Bastardie doe originally belong to the Ecclesiasticall Court and not to the Temporall Court And as he findes the trueth of the matter by due examination to be thus or that so he pronounceth for the same in his owne Consistorie and makes certificat thereupon to the kings Court accordingly and as he pronounceth so the temporall Iudges follow his sentence in their Iudgements eyther for or against the inheritance that is in question Speciall Bastardy they say is that where the Matrimony Bracton is confessed but the prioritie or posterioritie of the Natiuitie of him whose byrth is in question is controuersed which to my thinking if I conceiue aright is no other thing than the generall bastardie transposed in words but agreeing in substance matter with the other for euen these things which they pretend make speciall Bastardie are parts and members of the generall bastardie and are eyther confessed or inquired vpon 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 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 theyr marriage was solemnized in the face of the Church to which the defendants replie is I am no bastard for that I was borne in lawfull