them as by any of the reverende Bishops or venerable Archdeacons their Chancelors or Officials If there be ame exception alleaged by the defendant as of composition prescription or privilege the Kinges Iustices are as able to iudge of the validitie of these as they are now able to determine customes de modo decimandi or of the vse of high wayes of making and repayring of bridges of commons of pasture pawnage estovers or such like Trueth it is that of legacies and bequestes of Legacies how they may be recouered at the coÌ„mon lawe goods the reverend Bishops by sufferance of our Kinges and consent of our people haue accustomablie vsed to take cognyzance and to hold plea in their spirituall Courts Notwithstanding if the legacie be of landes where landes be divisible by Testament the iudgement thereof hath ben alwayes vsed and holden by the Kings writ and never in any ecclesiasticall Court Wherfore if it shall please the King to enlardge the authoritie of his Courtes temporall by commandinge matters of legacies and bequestes of goods aswell as of landes to be heard and determined in the same it were not much to be feared but that the Kings Iustices the Kings learned Counsell and others learned in the law of the Realme without any alteration of the same law would spedelie find meanes to applie the grounds thereof aswell to all cases of legacies and bequests of goods as of landes For if there bee no goods divisible by will but the same are grauÌ„table and confirmable by deede of gift could not the Kings Iustices aswel iudge of the gift of the thing given by will as of the graunt of the thing graunted by deede of gift or can they not determine of a legacie of goods aswell as of a bequest of landes If it should come in debate before them whether the Testator at the time of making his will were of good perfect memorie vpon profes and other circumstances to bee opened and made of the Testators memorie by livelie testimonies either the Admonitor must condemne the Kinges learned and discreete Iustices to be 〈◊〉 mentis insanae memoriae or els it must be confessed that they be as well able to iudge of the distraction of wits and vnsoundnes of memorie in a person deceased as they be to determine the question of Lunacie madnesse or idiocie in a man living If anie question should arise vpon the revocation of a former will of the ademptioÌ„ of a legacie or of a legacie giuen vpon coÌ„dition or in diem it would be 〈◊〉 matter for the learned Iudges vpon sight of the Will and proofes to be made to define which is the first and which is the last will whether the legacie remayne or whether it be revoked whether it be legatum per rerum or 〈◊〉 whether condicionall or without condition And if it bee condicional whether the same be possible or impossible honest or dishonest and if it be 〈◊〉 whether the day bee past or to come But there lyeth no action at the commoÌ„ lawe for a legatorie against the executor to recover his legacie I graunt But a creditor to recover his dâ—â—t due by the testator vpon specialtie may bringe an action at the common law against the executor And then what is the cause that a creditor may recover his debt that a legatorie can not recover his legacie in the Kinges Court but onlie for that remedie could not be giuen vnto legatories complaynantes by any writt out of the Chancerie And therefore that such plaintifes might not be deferred of their right 21. Ed. 1. statute vpon the writt of consultation remedie in such cases to their great damage it hath pleased the Kinges by sufferance to tolerate the Church officers to determine these cases Wherefore if it might please the King to cause Writtes to bee made out of his Court of Chancerie for the recoverie of Legacies it were cleere by the common law of the Realme as from the statute may be gathered that the cognizance of these cases did not appertayne anie more to the spirituall Court. For then might the legatorie by that Writt bring an actioÌ„ against the executor to obteine his Legacie But how should that action be tryed How even as other actions of debt detinue or trover be tried namelie as the case should require either by the countrey or by the Iudges vpon a moratur in lege As Testamentes with their adherences so likewise matters of Spousalles Matters of mariages more meete to bee decided by the Kings then by the Bb. officers Mariages divorces c. togither their accessories by common right of the Imperiall Crowne did in auncient times properlie apperteyne to the examinations and sentences of the Emperours them selues to their Provostes Deputies and Presidentes of Cities and Provinces as by the several titles de Testamentis Legatis Fidei commissis Nuptijs repudijs divortio dote c. in the books of the civil law appeareth By the Law of England also the King hath the mariadge of an heyre being within age in his warde Widowes also that hold of the King in chiefe must not marie them selues without the Kings licence And by an Act made 4. and 5. Phil. and Mary there is a streight punishment provided against all such as shall take away Maydens that be inheritors being within the age of sixteene yeres or marie them without consent of their Parentes And what reason letteth them that the King might not as well haue the care and cognoyzance of all the coÌ„tractes of mariage especially of the mariage of all children and Widowes in his temporall Courtes as he hath of some parties to bee contracted of the Dower of the ioynture of the dis aragment of the age of the 〈…〉 way of the deflouring and of manage without parentes consent in some cases or what a verie great alteration of the common Law could ensue in case the Kings temporall Iustices did examine and determine whether the contract were a pefect and simple or condicionall contract yea or no For if vpon the statute made by Phi. and Mary that Maydens and Women children of Noble men GentlemeÌ„ c. being heyres apparant c. and being left within age of xvj yeares should not marie against the will or vnknowing of or to the Father or against c. If I say vpon the publishing of this Act there hath no alteration of the common law hitherto followed it is but a meere superstitious errour to feigne that a change of the coÌ„mon law must followe if so be this statute were extended to all children both Sonnes and Daughters of what parentage sexe estate or age so euer For if the King in his temporall Courts had the definitioÌ„ of all aswell as of some contractes made by children without consent of parents then should a multitude of lewde and vngodlie contractes made by flatterie trifling gifts faire and goodly promises of many vnthriftie and light personages
of Tythes Testaments and Matrimonie matters also of adulterie slander c. are in these mens iudgments mere teÌ„poral c. therefore to bee dealt in by the temporall Magistrate onely which as yet haue eyther none at all or very fewe lawes touching those things therefore the common lawe of the Realme must by that occasion receaue also a verie great alteration For it wil bee no small matter to applie these things to the temporal law to appoint Courts Officers and manner of processe and proceedings in iudgement for the same Assertion In deed we hold that all these matters whereof mention is here made and all Matters of tythes and other causes of like nature perteine to civill Iustice others of the like nature are merely civill and temporall and by the temporall Magistrate alone to bee dealt in and to be discussed if we consider the administration of externall and civill iustice And this wee thinke wil be graunted of all and not be denied of any vnlesse they be too to popishly addicted In regard whereof wee haue drawen as before is mentioned a proiect howe Courts and maner of processe and proceedinges in iudgement by Doctors of the civill law may be appointed by the King and his high Court of ParleameÌ„t without that that the common law of the Realme by the occasion of any such courts officer or maner of processe and proceedings must receave any alteration at al muchlesse a very great alteration Howbeit if it should not please the King and that the Civilians could not finde favour in his sight by courts offices and maner of processe and proceedings in iudgement before specified or by the like to have the studie of the civill law advanced yet we thinke it convenient once againe to â—owe matters of Tythes c. may be dealt in by the Kings Iudges be examined howe these matters may be dealt in according to the rules grouÌ„dâ— of the common lawe before the Kings Iudges and Iustices of the Kings bench and common pleas By a statute of 32. H. 8. c. 7. it is cleare that all tythes oblations c. and other ecclesiasticall or spirituall profits by the lawe or statutes of the Realme may bee made temporal as being admitted to be abide go to and in temporall hands laye vses and profits From the reason 〈◊〉 which statute it is cleere that those lawâ—â— likewise may be reckoned amongst 〈◊〉 for temporall lawes which by the lawâ—â— and statutes of the Realme may be executed by temporall and lay persons and which are conversant about temporall and lay causes If then the execution of the lawes touching these matters may lawfully remaine abide in the hands of Doctors of the civill law being temporall and lay persons as alreadie vnder the Bishops they doe it can not be denied but that the Kings Iudges and Iusâ—icers of both Benches may be as competible Iudges to put in execution the lawes concerning these matters as Doctors of the civill law or other lay-men be But the causes are not reputed and called temporall lay causes amongst vs. What for that if in their owne nature simply considered these causes bee meerely laye and temporall causes such causes I meane as whereof the King a â—ay civill and temporall Magistrate by his lay civill and temporal Magistracie â—erived vnto him immediatly from the holy law of God may and ought to take â—ognizaÌ„ce thervpoÌ„ either in his own Royall person or by the person of any of his inferior Officers may giue absoâ—te peremptorie iudgement If I say â—hese things be so what booteth it or that wisedom is it contend that these causes and matters have bin and are stil adiudged to be therefore ecclesiasticall no temporal causes because through an abusive speech or through a vaine and evill custome they haue bin so called and accompted in times past And what if it hath pleased the Kinges Progenitors by sufferance to tollerate the execution of such lawes as concerne these things to be in the hands power of Ecclesiasticall persons yet here vpon it followeth not that in very deede and trueth the Magistracie of the said ecclesiasticall persons was an ecclesiasticall Magistracie or that they were ecclesiasticall Magistrats but their Magistracie was and remayned still a temporall magistracie they were and aboade temporall Magistrates For not more can the qualitie of the person alter the nature of the cause then can the qualitie of the cause alter the nature of the person And if it be true that matters determinable in tymes past by a Magistracie abusivelie called ecclesiastical be notwithstandinge properlie temporaâ—â— matters and that the same Magistracie also be a temporall no spirituall Magistracie what a childish poore coÌ„ceit is it to challenge threp vpoÌ„ the teÌ„porall Magistrat that he hath none or verie few temporall lawes touching those matters And that therefore the people should not sollicit an alteratioÌ„ of abuses in Church-goverment least for want of temporall lawes the people should bee without ecclesiasticall discipline It will be no small matter saith hee to applie these things to the temporall lawe yea and so say I to But what of that The question is not how hardly these things may be applied to the temporall lawe but how small a matter it were to applie the temporall law vnto these thinges For it is not said in any law that casus ex iuribus but it is said in all lawes that The temporal law may easily be applied to causes nowe reputed ecclesiasticall ex casibus â—ura nascuntur And in deede the Phisition applieth not the disease to his phisicke but he prepareth his phisicke for the disease The husband-man he measureth not his grouÌ„d by the seed but his seed by the ground The Draper he meateth not his yarde by the cloth but his cloth by the yarde If in like maner the temporall lawes and the grounds and rules thereof were applied to these matters of tythes marriages c. whereof he speaketh what more alteration could there be of the temporall law by such an application then there is an alteration of the pluÌ„met by laying it to the stone or then there is an alteration of the rule or yard by laying them to the timber cloth Besides he that rightly and after an exact equall proportion can apply one rule or maxime of the teÌ„porall lawe to many more cases then wherevn to it hath bin vsually in former times applied he may rather be reputed an additioner then an alterer of the law But how may the temporall lawe be applied to those matters How even so and so as followeth By the statute 32. Howe Tythes may bee recouered in the Kings teÌ„porall Courts H. 8. c. 7. it is declared that tythes oblations c. and other ecclesiastical or spirituall profitts c. beinÌ„g in laye mens handes to laye vses be no more ecclesiasticall but temporall goods and profittes and that if any person were disseysed
represse Puritanes in one Parish then Maister D. Stanhope alone to represse all in a Diocesse in Holborne and that hee had chosen Maister Harsnet to bee his Curat and withall that Mai. Dodge Ma. Merbury Maister Flower and Maister Brisket all cheefe attendants on his late great Lord and Maister were inhabitants within the same Parish that the chiefe men of the same Parish had chosen those to be assistants to him and to his Curat for the inquisition of the demeanours of all the Puritanes and Precisians within his Parish let this I say bee supposed would not hee and they trow wee thinke it a high scorne and an indignitie to be offered vnto their Maisterships in case it should bee insinuated that Maister Doctor Stanhope were better able with one litle blast of breath vpon a peece of paper to blow away all Puritanisme out of the Citie and Diocesse of London then these great Chaplins and discrete gentlemen with their thundrings and with their lightnings were able to fright the same out of one poore Parish in Holborn And againe to make this matter yet a litle more familiar to the minde of the Reader let vs suppose againe that thundering Mai. Merburie now Lecturer in in the church of Saint Mary Oâ—eris were Pastor of the same church had to be his assistants in the Ministery but simple M. ButtertoÌ„ that they two for the Elders of the same Church to be chosen by the Parish had such and such and such and such men louers of all honestie and godlines and enemies vnto all dishonestie and vngodlines could not these learned and graue Ministers with the assistants of such wise godly Borough-maisters be as well able to reforme Papists Atheists swearers prophaners of the Sabaoth Drunkerds adulterers and such like within the Borough of Southwark as is Maister Doctor Ridley to bring to any good amendement of life all such kind of persons within the whole Diocesse of Winchester If the examination and iudgement of all theeueries pickeries burglaries robberies murders and such like were committed to Maister Doctor Ridley alone for the Diocesse of Winchester and to Maister D. Stanhope alone for the Diocesse of London were it not like that for one such malefactor as there is now we should shorthly haue an hundred And therefore to hold vs still to the point in question it is very plaine and euident that this manner of spirituall Iustice mentioned to be executed by the Pastors and Elders is more correspondent to the administration of civill Iustice in the common weale then is that manner of the execution of spirituall Iustice by Doctor Stanhope or Doctor Ridley by the Bishop of LondoÌ„ or by the Bishoppe of Winchester For to begin with our meanest and basest Courts let theÌ„ shew vnto vs any Court Leete Law-days or Sherifs turnes within Matters in Leets and Lawdayes not ouerruled by one alone any Countie Citie Towne Borough Village or Hamblet within the Realme wherin matters of civil Iustice are heard examined and adiudged by one man alone If for the common benefit of the Tenants against incrochmeÌ„ts ouerlaying of coÌ„mons wast nuisances or such like any payne is to bee offered or presentment made the same is not set or made by the Steward Sherif or other Officer alone but by the commoÌ„ voice and consent of all the homagers and suitors to the Court The Steward indeed is the director and moderator of the Court the giuer of the charge and the mouth of the whole assembly to pronounce and enact the whole worke of their meeting but he is not the only inquisitor the presentor the informer or the Iudge to dispose all things according to his owne discretion Besides matters of the Kings peace are not committed in any Countie or other place within the Realme only to one Iustice of the peace alone For neither at the generall Breaches of the Kinges peace not punishable by one alon Sessions of the peace nor at any other lesse publike meetings any person for any offence whereof he standeth indighted or for which he is punishable can be fined amerced or bodily punished at the discretion of one Iustice alone but by the greatest part of the Iustices assembled his penaltie is to be imposed vpoÌ„ him Furthermore this manner of the examination of the fact and declaration of the law for the triall of the fact and iudgement of the lawe doth not reside in the brest of one Iuror or Iudge alone In the Courte of the Kings Bench if a prisoner bee brought to the Barre and confesse not the crime Iustice in anie of the B. Courts is not executed by one Iudge alone by the Iustice of that Court hee can receaue no iudgement vnlesse he be first indicted by inquisition of 12. grand Iurors at the least and afterward againe be tried by other 12. brought iudicially into the Court face to face Yea in this Court neither the interpretation of the common law nor the exposition of any statute dependeth vpoÌ„ the opinion credite or authoritie of one Iudge no not of the Kinges chiefe Iustice him selfe alone for his other three brethren and Co-juges varying from him in point of law may lawfully over-rule the Court. The same maner of iudgement for the law is in vse and is practized by the Iudges in the Court of common Pleas and by the Barons of the Exchecquer in the Latin Courte of the Exchecquer And not onely in these Courtes of lawe and In the Courts of Equitie are many assistances Iustice but also in all the Kings Courtes of equitie coÌ„science it is not to be sene that any one person alone hath any absolute power without assistants finally to order iudge and decree any cause apperteining to the iurisdiction of those Courtes In the Courte of Requestes there are not fewer then two Court of Requests yea some times three or fower with Maister of Requestes in commission to heare and determine matters of equitie in that Court. In the Courte of Wardes and liveries there sitteth not onely the Court of Wards Maister of the Wardes but also the Kinges Attorney the Receaver and other Officers of the same Courte In Court of the chequer Chamber the Courte of the Checquer-chamber with the Lord Thresorer who is chiefe and President of that Councell yet with him as assistants doe sit the Chancelor of the Exchequer the Lord chiefe Baron and the other Barons Whatsoever decree finall is made in the Kinges High courte of Chancerie high Courte of Chancerie the same is decreed not by the Lorde Chancelour alone but by the Lord Chancelour and the high Court of Chancerie wherein the Maister of the Roles and the twelfe Maisters of the Chancerie as coadiutors doe sitt and giue assistance In the most honorable Court of Starre-chaÌ„ber the Court of Starre-chaÌ„ber 3. H. 7. c. 1. 21. H. 8. c. 20. Lord Chancelor the Lord Thresaurer and the President of the Kings most
law these offices and functions haue bin and yet are dayly vndertaken and executed to the full And what maÌ„ then if there were none other rewarde for Civilians would tenne or twelue yeres togither beat his braine and trouble his witts in the studie of the civill lawe when every silly canonist might be able and learned inough to sit in the Bishops throne and to be iudge in his consistorie Besides if the Admonitor speake sooth viz that Civilians in this Realm liue not by the vse of the civill lawe to what end then should he feare an overthrow of the studie thereof For if there be no vse of it in this Realme for the maintenance of this life to what vse then should men studie the same in this Realme As for the vse of it among strangers and forraigne nations without the Realme the same as I suppose is no greater then such as 3. or 4. Civilians may bee able well inough fully to deliver the law touching all matters of controversie that may grow to question during the whole space of a Kinges raigne If no man lived in this Realme by the trade of brewing Beere but that all Brewers did live by the trade of brewing Ale what should we neede to feare the decaye of Beere-brewers or what vse were there of them In like sort if men liue onelie by the vse offices and functions of the canon law that men liue not as he saith by the vse of the civill law within the Realme what follie were it to studie the one whereas without the knowledge therof he might live by the other And therefore it seemeth that the Admonitor by his own weapon as much as in him lay hath given the whole studie of the civill law a most desperate and deadly wound And to the end we may vnderstand what reward maintenance Civilians by the offices functions of the canon law doe receyve yearely for their service and attendance in the Bishops and Archdeacons their Courts We will examine what fees Doctors of the civil law being Chancelors Commissaries or Officials haue vsually and ordinarily allowed vnto them by their Lords and Maisters Fees for probat of Testaments graunting of administrations Fees for probat of testaments let to farme with their appendances of late yeares in some places whether in all or how many I know not haue bin demised vnto farm for an annual rent out of which either a small or no portion at all hath bin allowed vnto the Chancelor or Official for his service in this behalf Wherevpon as I coniecture it hath fallen out rather then that those Officers would worke keepe courts travaile for litle or nought there have bin exacted greater fees for the dispatch of these things then by law ought to haue bin paied Perquisits of courts arising vpon suits commenced betwene partie and partie it must bee a plentifull harvest and there must be multi amici curiae in a Bb. consistorie if ordinarily communibus annis they amouÌ„r in the whole to twentie pounds by the yeare and yet these perquisits belong not wholy to the Chancelor but are to be devided betweene him the Register And touching Fees for excommunication and absolution fees for institutioÌ„ induction licences to preach licences for Curates and Readers For testimoniall of subscription or licences to marrie without banes fees for coÌ„mutation of penance fees for relaxation of sequestrations touching these manner of Fees if the same be fees no way warantable howe are not then such Fees every way dishonorable for a Doctor of the civill lawe Fees due for the executioÌ„ of the functions of the canon lavve dishonorable for a Doctor of the civil lavv to take either of Ministers or people There must bee therefore some other hope of better reward maintenance to incite and incourage schollers to the studie of the civill law theÌ„ are these beggerlie and vnlawfull fees depending vpon the functions and exacted by the officers of the canon law or ells the vse of the civil law as the Admonitor saith must necessarilie in short time be overthrovven For if Fees for probat of Testaments and granting of administrations with their appendices shall still be let to farme and if also many vnlawfull Fees were quite inhibited there would remaine I trowe but a very poore pittance for Civilians out of the functions of the canon law to maintaine their Doctoralities withall But what better reward can there bee for Civilians then hath already bin mentioned If the Admonitor had not willingly put a hoodwincke Civilians 〈◊〉 EnglaÌ„d liue not only by the functioÌ„s of canoÌ„ lavv before his eyes hee might haue seene that the civilians liue not wholy altogether by the practise of the canon law but partly also and that most honorably by the vse of the civill lawe If a Doctor of the civill lawe bee Iudge or Advocate in the Court of Admiraltie if he be Iudge or Advocate in the prerogatiue Court so farre as the same Court handleth onely matters of Legacies Testaments and Codicills to what vse can the canoÌ„ law serue him or what advantage can the same lawe bring him in Besides to what vse serveth the canon law vnto a Doctor of the civill law if he shall finde favor in the Kings sight if it please the King to make him one of the Maisters of his Requestes or one of the twelue Maisters of his high Court of Chancerie or to be the Maister of his Roles or to be his Highnes Embassador vnto forreyne Nations of to be one of his H. most honorable privie Councel or to be one of his principall Secretaries It followeth not therefore as the Admo pretendeth that eyther the Civilians in this Realme live not by the vse of the civill law but by the offices functions of the canon lawe and such things as are within the compasse therof or that the hope of rewarde and by that meanes the whole studie of the civill law must be taken away if once the canon law should be abolished Neither would it bee any hard matter for the King if the Civilians might finde gracâ— in his sight to appoint Courtes offices and all maner of processe and proceedings in iudgement for Doctors of the civill law to heare determine in the Kings name all causes being now within the compasse of any civill or ecclesiasticall law within this Realme And although a litle candle can giue but a litle light and a small Spring can sendâ—â— forth but a small streame yet because great fiers are kindled sometimes by 〈◊〉 tle sparkles and smal streames 〈◊〉 togither may in tyme growe into great rivers I shall desire the great Civilians with their floods lamps of learning to helpe forward such a law as whereâ—â— the studie of the civill law may bee vpholden the reward and maintenance of Civilians without any function froÌ„ the Canon law may be enlarged many coÌ„troversies and disorders in the church may be pacified and
the Kings prerogative Royall be duely advanced Which things if it might please them rightly to consider then let them humblie and seriouslie beseech our Sovereine Lord the King and States in Parleament to giue their consentes to such a law as the proiect ensuing may warrant thē the same not to be dangerous to the overthrowe of their civill studies The Proiect of an Act for the explanation and amplifying of one branch of a statute made in the first yeere of the raigne of Queene Elizabeth entituled An Act restoringe to the Crowne the ancient iurisdiction over the state Ecclesiasticall and also for the declaring and reviving of a statute made in the first yere of King Edward the sixt entituled An Act what seales and stiles Bishops and other spiritual persons exercising iurisdiction ecclesiasticall shall vse FOr asmuch as by one braunch of an Act made in the first yeere of our late Soveraigne Ladie of blessed memorie Queene Elizabeth entituled an Act restoring to the Crowne the auncient iurisdiction over the state Ecclesiastical Spirituall and abolishing all forraigne power repugnant to the same it was established and enacted That such iurisdictions priviledges superiorities and preheminences spiritual and ecclesiasticall as by anie spirituall or ecclesiasticall power or authoritie hath heeretofore bin or may lawfully be exercised or vsed for the visitation of the Ecclesiasticall state and persons and for reformation order correction of the same and of all maner errors heresies schismes abuses offences contempts and enormities should for euer by authoritie of that present Parleament be vnited and annexed to the Imperiall Crowne of this Realme by meanes whereof it may now be made a questiō whether any Archbishops or other Ecclesiasticall persons having since that time vsed or exercised any such spirituall or ecclesiasticall iurisdiction in their owne right or names might lawfully haue done or hereafter may lawfully doe the same without speciall warrant and authoritie derived immediatly frō your Highnes by and vnder your H. letters patents And whereas also by a statute made in the first yeare of Kinge Edward the sixt entituled an act what seales and stile Bishops or other spirituall persons shall vse it was ordained that all and singular Archbishops and Bishops others exercising ecclesiastical iurisdictiō should in their processe vse the Kings name and stile and not their owne and also that their Seales should bee graved with the Kings armes And forasmuch also as it must bee highly derogatorie to the Imperiall Crowne of this your Highnesse Realme that any cause whatsoever ecclesiasticall or temporall within these your H. Dominions should be heard or adiudged without warrant or commission from your Highnes your heyres successors or not in the name stile and dignitie of your Highnes your heyres and successors or that anie seales should be annexed to anie promesse but onelie your Kinglie seale and armes May it therefore please the King at the humble supplication of his Commons to haue it enacted That the aforesaid branch of the aforesaid Act made in the first yeere of Queene Elizabeth her raigne everie part thereof may still remayne for ever be in force And to the end the true intent and meaning of the said statute made in the first yeere of King Edward the sixt may be declared and revived that likewise by the authoritie aforesaid it may be ordayned and enacted that all and singular Ecclesiastical Courts and Consistories belonging to any Archb. Bb. Suffraganes Colege Deane and Chapiter Prebendarie or to any Ecclesiasticall person or persons whatsoever and which haue heretofore bin commonly called reputed taken or knowne to bee Courts or Consistories for causes of instance or wherein any suite complaint or action betwene partie and partie for any matter or cause wherin iudgment of law civil or canon hath bin or is required shall and may for ever hereafter be reputed taken and adiudged to be Courts and iudgmentseats meerely civill secular and temporall and not hence foorth Ecclesiasticall or spirituall and as of right belonging and apperteyning to the Royall Crowne and dignitie of our Soveraigne Lorde Kinge Iames that nowe is his heyres and successors for ever And that all causes of instance and controversies betwene partie partie at this day determinable in any of the said Courts heretofore taken and reputed ecclesiasticall shall for ever hereafter bee taken reputed and adiudged to be causes meerely civill secular and temporall as in trueth they ought to be and of right are belonging and appertayning to the iurisdiction of the Imperiall Crowne of this Realme And further that your H. liege people may be the better kept in awe by some authorised to be your H. Officers Ministers to execute iustice in your Highnes name and vnder your H. stile and title of King of England Scotlād Frāce and Ireland defendor of the faith c. in the said Courtes and Constories and in the said causes and controversies Bee it therefore enacted by the authoritie aforesaid That all the right title and interest of in and to the said Courts and Consistories and in and to the causes controversies aforesaide by any power iurisdiction or authoritie heretofore reputed Ecclesiasticall but by this Act adiudged civill secular and temporall shall for ever hereafter actually and reallie be invested and appropried in and to the Royall person of our Soveraigne Lord the King that now is his heyres successors Kinges and Queenes of this Realme And that it shall and may bee lawfull to and for our saide Soveraigne Lord and King his heyres and successors in all and everie Shire and Shires Diocesse and Diocesses within his H. Dominions and Countries by his and their letters patents vnder the great Seale of England from tyme to tyme and at all tymes to nominat and appoint one or moe able and sufficient Doctor or Doctors learned in the civill law to be his and their civil secular and temporal Officer and Officers Minister and Ministers of Iustice in the same civill secular and temporall Courts Consistories which in and ouer his and their royall name stile and dignitie shall as Iudge and Iudges doe perform execute all and every such act and acts thing and things whatsoeuer in and about the execution of iustice and equitie in those Courts according to the course and order of the civill lawe or the Ecclesiasticall canons and constitutions of the Realme as heretofore hath bin vsed and accustomed to bee done by for or in the name of any Archbb. Bb College Cathedral Church Deane Archdeacon Prebendary or any other Ecclesiasticall person or persons whatsoeuer And that all and every such civill secular and temporall Officer and Officers Minister and Ministers Iudge Iudges in his and their processe shall vse one manner of Seale only and none other hauing graued decently therein your Kingly armes with certaine characters for the knowledge of the Diocesse or Shire And further bee it enacted c That it shall and may be lawfull by
the authoritie aforesaide for our said Soveraigne L. the King his heyres and succerssors from tyme to tyme and at all tymes to nominat and appoint by his and their Highnes letters patents vndee the great Seale of England for euerie Shire and Shires Diocesse and Diocesses within his or their H. Dominions one or moe able sufficient persons learned in the civill lawe to be his and their Notarie and Notaries Register and Registers by him them selues or by his or their lawfull Deputie or Deputies to doe performe and execute all and euery such act acts thing and things as heretofore in the Courts and Consistories Ecclesiasticall aforesaid hath bin and now are incident and apperteyning to the office of any Register or Notarie And further at the humble suite of the Commons c. it may please the King to haue it enacted That all singular matters of Wills Testaments with all and everie their appendices that all and singular matters of Spousalls Mariages with their accessories that all and singular matters of diffamation heereto fore determinable in the ecclesiasticall Courtes and if there be anie other causes of the like meere civill nature shall be heard examined and determined by the said civill and secular Officers and Iudges in the said civil and secular Courtes according to the due course of the civil law or statutes of the Realme in that behalfe provided And that all matters of Tythes Dilapidations repayre of churches and if there be anie other of like nature with their accessories and appendices shal be heard examined and determined by the saido civill and secular Officers and Iudges in the said civil and secular Courtes according to the Kings ecclesiasticall lawes statutes and customes of the Realme in that behalfe heeretofore vsed or heereafter by the King and Parleament to be established And at the humble suite of the Commons may it please the King to haue it further enacted That all maner of fees heeretofore lawfull or heereafter by the King and Parleament to bee made lawfull for or concerning the probat of Willes administration of the goods of the intestat letters of tuition receyving or making of accompts inductions to Archbishoprickes Bishoprickes Dearries Parochiall-churches or other spirituall promotions and all other feees what soeuer heretofore lawfull or hereafter to be made lawful for anie travaile or paine to be taken in or about the expedition and execution of any of these causes shall for ever hereafter be fees allowances appropriated to the Iudges and principall Registers of the sayde Courtes equally to be devided betwene them as heeretofore hath bin accustomed and that the said Iudges and Ministers within their severall charges shal be Collectors of the Kings tenthes and subsidies graunted and due by the Clergie taking for their travayle and payne in and about the same collection such fees as heretofore haue bin accustomed Provided alwayes that none of the saide civill and temporall Officers and Ministers nor any of them for any offence contempt or abuse to be committed by any person or persons in any wise incident to any of the said Courts and Consistories suspend excommunicate or interdict any person or persons but shall and lawfully may by authoritie of this present Act proceed against everie offendor and offendors by such ordinarie processe out of the said Register or Notaries office as is vsed vpon a sub-pae-na out of the high Court of Chancerie and there vpon default or contempt to proceed to attachment proclamatiō of rebellion and in prisonment of the partie offending as in the said high Court of Chācerie is vsed Provided also that all appeales hereafter to be made from all and every Court and Courts in the Shyres and Diocesses of the Countrey shal be made to the higher Courtes as heretofore hath bin accustomed onely with an alteration and addition of the names stiles and dignities of Archb. Bb. and other Ordinaries vnto the name stile and dignitie of our Soveraign Lord the King his heyres and successors And that vpon the appeales so to be made it shall and may be lawfull for the Iudges Ministers of Iustice of and in the said higher Courts to make out all maner of processe and processes and to doe execute all and every act and acts thing things for the furtherance of Iustice in the causes afore said as to them shall by the law seeme equall right meete convenient any law statute privilege dispensation prescriptiō vse or customs heretofore to the contrarie in any wise notwithstanding Provided also that all and every such Iudge and Minister that shall execute any thing by vertue of this act shal from time to time obey the Kings write writs of prohibition of attachment vpon prohibition and indicavit and not to proceede contrarie to the tenour of such write or writes in such and the same maner and forme and condition as they have or ought to haue done before the making of this act any thing in this act to the contrary notwithstanding Provided also that this acte or any thing therein conteigned shal not extend or be interpreted to give any authoritie to the said Iudges Ossicers or any of them to put in execution any civill or Ecclesiasticall lawe repugnant or contrariant to the lawes statutes or customes of the Realm or hurtfull to the Kings prerogatiue Royall And thus it may seeme to bee but a small labour a litle cost and an easie matter for the Kinge his Nobles and Wise men of the Realm to devise formes of iudgement and maner of processe proceedings without any offices or functions of the canon law wherby the vse and studie of the civill lawe and the rewarde and maintenance for Civilians might be furthered and increased and not vtterly overthrowne taken away as the Admonitor vncivily beareth vs in hand As for the alteration of the censure of excommunication for contumacie mētioned in this proiect we haue the consent of the reverende Bishops in Pag. 138. this admonition that the same may bee altered For the Admonitor their Prolocutor speaketh on this wise Viz. As for Excommunication for contumacie by the Admonitors iudgement may be takē away without offence and with the good liking of the Bishops the excommunication practised in our ecclesiasticall Courts for contumacie in not appearing or not satisfying the iudgement of the Courte if it had pleased the Prince c. to have altered the same at the beginning and set some other order of processe in place thereof I am perswaded saith he that the Bishops Clergie of the Realme would haue bin very well contented therewith And speakinge of a certaine maner of civill discomoning vsed in the Church of Tigure he further addeth viz. Which or the like good order devised by some godlie persons if it might be by authoritie placed in this Church c I think it would be gladlie receaved to shun the offence that is taken at the other Admonition And matters
deforced wronged or otherwise kept or put from his lawfull inheritaÌ„ce estate seysin c. of in or to the same by anie person clayming or pretending to haue interest or title in or to the same that then in all and euerie such case the person so disseysed deforced or wrongfullie kept from his right or possession shall and may haue his remedie in the Kings temporal Courtes as the case shal require for the recouvery of such inheritance by writt originall c. to be devised and graunted out of the Kinges Court of Chancerie in like maner c. It is there likewise provided that that Act shal not extend nor be expounded to giue anie remedie cause of action or suite in the Courtes temporall against any person which shall refuse to set out his Tythes or which shall deteigne c. his Tythes and offerings But that in all such cases the partie c. having cause to demand or haue the same tythes shal haue his action for the same in the Ecclesiasticall Courtes accordinge to the ordenance in the first part of that act mentioned and none otherwise Now then sit hence euery person whether he be laie or Ecclesiasticall having â—â—ght to demand tythes and offeringes hath the partie from whom those tythes 〈◊〉 due bound obliged vnto him and thence also the partie not dividinge yeelding or paying his tythes doth actuallie and reallie deteigne the same and thereby doth vniustlie wrong the partie to whom they be due contrarie to iustice the Kings lawes sithence I say these things be so what alteratioÌ„ or disadvantage could befall or ensue to the common law or the Professors thereof if so bee it might please the King with his Parleament to haue the last part of this Act so to be explaned extended and enlarged as that the same might giue remedie in the Kings temporall Courts by writt original to be devised granted out of the ChaÌ„cerie against any person deteigning his tythes and offeringsâ— the Hospitall of St Leonards in Yorke of the Kings foundatioÌ„ and Patronage Hospitall of S. Leonard 1. 2. H. 6. c 2 endowed of a thrave of corne to be taken yerely of euery plouÌ„gh earing with in the Counties of Yorke Comberlande Westmerland and Lancaster hauing no sufficient or covenable remedie at the common law against such as withheld the same thraves it was ordeigned by the King in Parleament that the Maister of the said Hospitall and his successors might haue actions by writt or plaintes of debt or detinue at their pleasure against all and every of them that deteyned the same thraves for to recover the same thraves with their damages And by a statute 32. H. 8. c. 44. it is enacted That the Parsons and Curates of five parish churches whereinto the Towne of Roysen did extend it selfe and everie of them the successors of every of them shall haue their remedie by authoritie of that Act to sue demaund aske recover in the Kings Court of Chancerie the Tythes of corne hay wooll lambe and calfe subtracted or denyed to bee paide by any person or persons Againe Vicars Parsons or Improprietaries do implead any man in the ecclesiasticall Court for tythes of wood beeing of the age of 20. yeeres or aboue for tyth-hay out of a medow for the which tyme out of mind memorie of man there hath onely some Meade-silver bin paied or if a debate hang in a spirituall Court for the right of tythes having his originall from the right of Patronage the â—uaÌ„tite of the same tythes do passe the â—urth part of the value of the benefice prohibition in all these and sundrie other cases doth lie and the matters are to be tried and examined in the Kinges Courts according to the course of the common lawe vnlesse vpon iust cause there be graunted a consultation And if in these cases in maintenance of the common law the defendants haue relief in the Kinges Courts I thinke it more meete to leave it to the consideration rather of coÌ„mon then to the iudgemeÌ„t of canon Lawiers to determine what alteration the common law could sustayne in case all Plaintiffes aswell as some defendants might pray the Kings ayd for the recovery of tythes especially seeing at this day the maner of paying tythes in England for the most part is now limited by the coÌ„mon and statute lawes of the Realm and not by any forraigne canon law Obiect But there is some fact happely so difficile so secreat and so mystical in these causes of tythes as the same cannot without a very great alteration of the common law be so much as opened before a lay Iudge or of the hidden knowledge wherof the Kings temporall Iudges are not capable Answere Why then let vs see of what nature that inextricable fact may bee I haue perused many libels made and exhibited before the ecclesiasticall What facts touching the witholding of tythes are examinable in the ecclesiasticall Courts Iudges yea and I haue read them over and over and yet for grounde of complaint did I never perceave any other materiall and principall kinde of facte ' examinable in those Courts but onely such as follow First that the partie agent is eyther Rector Vicar Proprieiarie or Possessor of such a Parish-Church and of the Rectorie Vicarage farm possession or dominion of the same and by vertue thereof hath right vnto all Tythes oblations c. apparteyning to the same Church and growing with on the same Parish bounds limitts or places tythable of the same Secondly that his predecessors Rectors Vicars c. tyme out of minde and memorie of man haue quietly and peaceably receaued and had all and singular Tythes oblations c increasing growing and renuing within the Parish c. and that they and he haue bin and are in peaceable possession of hauing and receaving Tythes oblations c. Thirdly that the partie defendant hath had and received in such a yere c. of so many sheepe feeding and couching within the said Parish c. so many fleeces of woll and of so many ewes so many lambes c. Fourthly that the defendant hath not set out yealded or paid the Tyth of the wooll and lambe and that every Tyth fleece of the said wooll by common estimation is worth so much and that every Tyth lamb by coÌ„mon estimation is likewise worth so much c. Fiftly that the defendant is subiect to the iurisdiction of that Court wherevnto hee is sommoned Lastly that the defendant doth hetherto deny or delay to pay his Tythes notwithstanding hee hath bin requested there vnto These and such like are the chief matters The Kinges Iustices are as able to iudge of exceptions against tithes as the ecclesiastical Iudges of fact wherevpon in the ecclesiasticall Courts proofes by witnesses or recordes rest to be made for the recoverie of tythes And who knoweth not but that these facts vpon proofes made before the Kinges Iustices may aswell bee decided by
if it may please him so to provide by Parleament may giue remedie vnto complaynants by writts out of the Chancerie and that complaints in such cases may effectuallie be redressed vpon such writts in the Kings Courts And if also sundrie matters of Tythes Testaments and Mariages be alreadie handled in the Kinges Courts if these things I say be so and so may be then with litle reason did the Admonitor warne vs that a verie great alteration of the common law must follow and that it will be no small matter to applie these things to the temporall law But the antecedent is true as hath bene alreadie shewed Therefore the consequent is true Admonition Iudgementes also of adulterie slauÌ„der c. are in these mens iudgmentes Pag. 78. mere temporall and therefore to be dealt in by the temporall Magistrate onely Assertion We are in deed of this iudgemeÌ„t that in regard of the Kinges Royall Office these iudgements of adultrie and other criminall causes comprised within this clause c. ought no more to be exempted from the Kings temporall Courtes then matters of theft murther treason and such like ought to be And for the mayntenance of our iudgementes wee affirme that there is no crime or offeÌ„ce of what nature or qualitie soever respecting any commaundement conteyned within either of the two tables of the holie law of God if the same bee nowe corrigible by spirituall power but that some fault and contempt one or other of the like nature and qualitie as comprised vnder the same commandement hath bene evermore and is now punishable by the Kings Regall and temporal iurisdiction For adulterie as the same is to be censured by penance in the Ecclesiasticall Courtes so is ravishment also buggerie sodomie to be punished in the Kings Court by payne of death And as hath bene accustomed that Ordinaries by ceÌ„sures of the Church may correct fornicators so fornication also as in some bookes written of the common lawe is reported hath bene in times passed presented and punished in leetes and Law-dayes in divers places of the Realme by the name of Letherwhyte whiche is as the booke saieth an auncient Saxon terme And the Lord of the Leete where it hath bene presented hath euer had a fyne for the same offence By the statute of those that be borne beyond the Seas 25. Ed 3. it appeareth that the Kinge hath cognizance of fome bastardie And nowe in most cases of bastardie if not in all by the statute of Eliza. the reputed father of a bastard borne is lyable to bee punished at the discretion of the Iustices of peace Touching periurie if a man loose his action by a false verdict in plea of land Periurie if punishable temporallie in some cases why not in all he shall haue an attaynt in the Kinges Court to punish the periurie and to reforme the falsitie And by divers statutes it appeareth that the Kings teÌ„porall Officers may punish periurie committed in the Kings teÌ„poral Courtes And though it be true that such periurie as hath risen vpon causes reputed spirituall haue bene in times past punished onlie by ecclesiasticall power and censures of the Church yet herevpon it followeth not that the periurie it selfe is a meere spirituall and not a temporall crime or matter or that the same might not to be civillie punished By a statute of Westminster 25. Ed. 3. it was accorded that the King his Vsurie heyres shall have the cognizance of the vsurers dead and that the Ordinaries haue cognizance of vsurers on lyfe to make compulsion by censures of the Church for sinne and to make restitution of the vsuries taken against the lawes of holy church And by another statute it is provided that vsuries shall 20. H. 3. c. 5. not turne against any being within age after the time of the death of his Auncestoure vntill his full age But the vsurie with the principall debt which was before the death of his Auncestor did remayne and turne against the heyre And because all vsurie being forbidden by the law of God is sinne detestable 13. Eliz. c. 8. it was enacted that all vsurie lone and forbearing of money c. giving dayes c. shall be punished according to the forme of that Act. And that everie such offendor shal also be punished corrected according to the Eccle. lawes before that tyme made against vsurie By al which statutes it seemeth that the cognizance reformatioÌ„ of vsurie by the lawes of the Realm partayneth onlie to the Kinge vnles the King by his lawe permit the Church to correct the same by the censures of the church as a sinne committed against the holy law of God Touching heresies and schismes albeit the Bishoppes by their Episcopall Heresies schismes are punishable by the Kings lawes and ordinarie spirituall power grouÌ„ded vpon canon lawe or an evill custome have vsed by definitive senteÌ„ce pronouÌ„ced in their Consistories to condemne men for heretickes and schismatickes and afterward being condemned to deliver them to the seculer power to suffer the paynes of death as though the King being custos vtriusque tabulae had not power by his Kinglie office to enquire of heresie to condemne an hereticke to put him to death vnlesse he were first condemned delivered into his hands by their spirituall power although this hath bene I say the vse in England yet by the statutes of Richard the second Henrie the fift it was lawfull for the Kings Iudges and Iustices to enquire of heresies and Lollardes in Leetes Sherifes turnes and in Lawdayes and also in Sessions of the peace Yea the King by the common law of the Realme revived 25. H. 5. c. 14. by an Act of Parleament which before by the Statute of Henrie the fourth was altered may pardon a man condemned for heresie yea and if it should come to passe that any heresies or schismes should arise in the Church of Englande the Kinge by the lawes of the Realme and by his Supreame Soveraigne power with his Parleament may correct redresse and reforme all such defaultes and enormities Yea further the King and his Parleament with consent of the Cleargie in their Convocation 1. Eliz. ca. 〈◊〉 hath power to determine what is heresie and what is not heresie If then it might please the King to haue it enacted by Parleament that they which opiniativelie and obstinatelie hold defende 1 Eliz 〈◊〉 1. and publish any opinions which according to an Act of Parleament alreadie made haue bene or may bee ordered or adiudged to be heresies should be heretickes and felons and their heresies If it please the Kinge heretickes may bee adiudged felons and hereâ—ies felonies to be felonies and that the same heretickes and felons for the same their heresies and felonies beeing araigned convicted and adiudged by the course of the common law as other felons are should for the same their heresies felonies suffer the paynes of death
honorable CouÌ„cell keeper of the Kings privie Seale or two of them calling vnto them one Bishop one temporal Lord of the Kings most honorable Councell the two chiefe Iustices of the Kinges bench and common Pleas for the time being or other two of the Kings Iustices in their absence haue full power and authoritie to punish after their demerits all misdoers being founde colpable before them If wee search our statutes besids the Courts and matters determinable in these spoken of before we shall find that the complaints of errour whether it touch the King or any other person 31. E 3. c. 21 made in the Exchecquer should be done to come before the Chancelor Treasurer who taking to them two Iustices other sage persons are duely to examine the busines and if any errour be found to correct amend the Roles c. By reason of delayes of iudgments vsed in the Chauncerie in the 14. E. 3. c 5 Kinges bench common bench and in the Exchecquer it was assented established and accorded that a Prelate two Earles and two Barons chosen by the ParleameÌ„t by good advise of the Chancelour c. shall proceed to take a good accord and to make a good iudgement When it was complayned vnto the King that the profites c. of his Realme by â—0 K. 2. c. 1 some great Officers c. were much withdrawen and cloyned c. it pleased the King c. to coÌ„mit the surveighing aswell of the estate c. of his house c. vnto the honourable Fathers in God William Archbishop of Canterburie and Alexander Archbishop of Yorke c. by a statute of commission for a 6. H. 6. Sewers by a statute for punishmeÌ„t of b 11. H. 5. c. 25. periurie by a statut against making or executing of actes or ordinances by any c 19 H. 7. c. 7. Maisters c. being not examined c. by the Lord Chancelour Treasurer or chiefe Iustices c. By a statute for the erection of the Court of d 27. H. 8. c 27. AugmeÌ„tation by a statute for erection of the Court of firste e 32. H. c. 45. fruits tenthes and lastly by an f 27. Eli. c. 8 acte for redresse of erroneous iudgements in the Court commonly called the Kinges Bench By all these statutes I say it is very apparant that the Administration of publike affaires in the coÌ„mon weale hath never bene vsually committed to the advisemnet discretion or definitiue sentence of any one man alone Which point is yet more fully and more perfectly Lord president and counsell in Wales Lord president couÌ„sell in the North parts Lord Deputie counsell in Irelande The Kinge and his honorable privie Counsel to be vnderstood by the establishment continuance of the Kings Lord President and Councell in Wales of the Kings Lord President and Counsel established for the North of the Kinges Lord Deputie and Councell within the Realme of Irelande of the Kings Highnesse most honorable privie Councell chosen by him for the assistance of his Royall person in matters apperteyning to his Kingly estate and lastly of the supreame and grand Councell of the three estates in Parleament for matters concerning The Kinge his grand Counsell in Parleament the Church the King and the common Weale For whether respect bee had vnto the secrete affaires of the Kings estate consulted vpoÌ„ in his Highnesse Councell Chamber by his privie Counsaylors or whether we regard the publike tractation of matters in Parleament there can bee no man so simple as not to knowe both these privie and open negotiatioÌ„s to be carried by most voyces of those persons who by the King are called to those honorable assemblies And what a vaine iangling then doth the Admonitor keepe how idlely and wranglingly doth he dispute when against the government of the church by Pastours and Elders he obiecteth that the same will interrupt the lawes of the Realme that it wil be great occasion of partiall affectionate dealing that some will incline to one parte and that the residue wil bee wrought to favour the other and that thereby it wil be a matter of strife discord schisme and heresies Howbeit if never any of these extremities and dangers haue fallen out in the common weale by any partiall or affectionate dealing of the Kings Deputies Presidents Iudges Iusticers and other Officers Ministers associated vnto theÌ„ for the administratioÌ„ of Iustice or equitie in any of the Kings civill Courtes howe much lesse cause haue we to feare any partialitie affectioÌ„ working inclination favour strife debate schismaticall or hereticall opinions if once Pastours and Elders in every Congregation and not thoroughout a Diocesse one Bishop alone had the spirituall administration of the Church-causes Can many temporall Officers Iusticers and Iudges rightly and indifferently administer the law and execute iustice and iudgment without that that some doe incline to one part without that the residue bee wrought to favour the other part And cannot spirituall Officers dispatch spiritual affaires without that that they be partially affectionally disposed What is it so easie a matter that the Ancients of God and the Ministers of Christ can the one part incline to righteousnes and the residue be wrought to favor wickednes can some incline to God and vnto Christ and can other some be wrought to follow Satan and Antichrist For what other controversie is required to be decided by Pastours and Elders then the controversie of sinne betwene the soule of man and his God And is there any Christian Pastour or Elder that wil be wrought rather to favour the sinne of a mortall man then the glorie of his immortall God But to leaue the state of the Kingdome and common weale and the good vsages and customes of the same let vs come to the state of the Church it selfe and to the lawfull government thereof established even amongst vs at this day The gouerment of the Church ought not to be by one alone For whatsoever our reverend Bishoppes practise to the contrarie yet touching ordination and deposition of Ministers touching excommunication and absolution touching the order and rule of Colleges Cathedrall churches and the Vniversities the ecclesiasticall law doth not commit the administration of these things and regiment of these places to any one person alone The Vniversities admit not the goverment of the Chancelour being present nor of his Vicechancelour The gouerment in the Vniuersities not by one alone him selfe being absent as of one alone the Doctors Procurators Regents non-Regents haue all voyces and by most of their voyces the Vniversitie causes take successe The businesses The goverment in Colleges not by one alone of Colleges by the statutes of their founders are commended to the industrie and fidelitie of the President Vice-president and fellowes vnto the Provost Viceprovost and fellowes vnto the Warden Sub-warden and fellowes vnto the Maister