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
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
the same word Elsewhere is to be ment and conceiued of the places of remoue the Popes vsed in those dayes being somtimes at Rome in Italy sometimes at Auignion in France semetimes in other places as by the date of the Bulls and other processe of that age may be séene which seuerall remoues of his gaue occasion to the Parliament of inserting the word Elsewhere in the bodie of those Statutes that thereby the Statutes prouiding against Processe dated at Rome they might not bée eluded by like Processe dated at Auignion or any other place of the Popes aboade and so the penaltie thereof towardes the offender might become voyd and be frustrated Neyther did the Lawes of this Land at any time whiles the Popes authoritie was in his greatest pride wythin this Realme euer impute Praemunire to any Spirituall Subiect dealing in anie Temporall matter by any ordinarie power wythin the land but restrained them by Prohibition only as it is plaine by the Kings Prohibition wherein are the greatest matters that euer the Clergie attempted by ordinarie and domesticall authoritie and yet are refuted only by Prohibition But when as certeine busie-headed fellowes were not content to presse vpon the kings Regall iurisdiction at home but would séek for meanes for preferment by forrein authoritie to controul the Iudgements giuen in the kings Courts by processe from the Pope then were Premunires decréed both to punish those audacious enterprises of those factious Subiects and also to check the Popes insolencie that he should not venter hereafter to enterprise such designements against the King and his people But now since the feare thereof is past by reason all entercourse is taken away betwéene the Kings good Subiects and the Court of Rome it is not to be thought the meaning of good and mercifull Princes of this land is the cause of these Statutes being taken away the effect thereof shall remaine and that good and dutifull subiects stepping happily awry in the exercise of some part of their Iurisdiction but yet without preiudice of the Prince or his Regall power shall be punished with like rigor of Law as those which were molesters gréeuers and disquieters of the whole estate But yet notwithstanding the edge of those Premunires which were then framed remaine sharpe and vnblunted still against Priests Iesuits other like Runnagates which being not content with their owne natural Princes gouernment séek to bring in againe that and like forrein authoritie which those Statutes made prouision against but these things I leaue to the reuerend Iudges of the land and others that are skilfull in that profession onely wishing that some which haue most insight into these matters would adde some light vnto them that men might not stumble at them and fall into the daunger of them vnawares but now to Prohibitions A Prohibition is a commaundement sent out of some of the Kings higher Courts of Records where Prohibitions haue bin vsed to be graunted in the Kings name sealed with the seale of that Court and subscribed with the Teste of the chiefe Iudge or Iustice of the Court from whence the said Prohibition doth come at the suggestion of the Plaintife pretending himselfe to be grieued by some Ecclesiasticall or marine Iudge in not admittance of some matter or doing some other thing against his right in his or their iudiciall procéedings commaunding the said Ecclesiasticall or marine Iudge to proceed no further in that cause if they haue sent out any censure Ecclesiasticall or Marine against the plaintife they recall it and loose him from the same vnder paine of the Kings high indignation vpon pretence that the same cause doth not belong to the Ecclesiasticall or Marine Iudge but is of the temporall cognisance and doth appertaine to the Crowne and dignitie Prohibitions some are Prohibitions of Law some other are Prohibitions of fact Prohibitions of Law are those which are set downe by any Law or Statute of this Land whereby Ecclesiasticall Courts are interdicted to deale in the matters therein contained such as are all those things which are expressed in the kings Prohibition as are also those which are mencioned by the second of Edward the sixt where Iudges Ecclesiasticall C. 13. 2. Edw. 6. are forbid to hold plea of any matter contrarie to the effect intent or meaning of the statute of W. 2. Capite 3. The statute of Articuli Cleri Circumspecte agatis Sylua Cedua the treaties De Regia Prohibitione the Statute Anno 1. Edwardi 3. Capite 10. or oght else wherein the Kings Court ought to haue Iurisdiction Prohibitions of fact are such which haue no precise word or letter of Law or Statute for them as haue the other but are raised vp by argument out of the wit of the Deuiser These for the most part are méere quirks and subtilties of law and therfore ought to haue no more fauour in any wise honourable or well ordered Consistorie than the equity of the cause it selfe doth deserue for such manner of shifts for the most part bréed nought else but matter of vexation and haue no other commendable end in them though they pretend the right of the Kings Court as those other Prohibitions of the law doe but the Kings right is not to be supposed by imagination but is to be made plaine by demonstration and so both the Statute of the 18. of Edward the third Capite 5. is where it is prouided no Prohibition shall goe out but where the King hath the cognisance and of right ought to haue and also by the forenamed Statute of Edward the sixt which forbids that any Prohibition shall bee graunted out but vpon sight of the libell and other warie circumstances in the said Statute expressed by which it is to bee intended the meaning of the Lawgiuers was not that euery idle suggestion of euery Attorney should bréed a Prohibition but such onely should bee graunted as the Iudge in his wisdome should thinke worthy of that fauour and of right and equitie did deserue it although as I must déeds confesse the Statute is defectiue in this behalfe for to exact any such precise examination of him in these cases as it is also in other points and is almost the generall imperfection of all statutes that are made vpon Ecclesiasticall causes but I feare me as emulation betwéene the two lawes in the beginning brought in these multitudes of Prohibitions either against or beside law so the gaine they bring vnto the Temporall Courts maintaineth them which also makes the Iudges they cesse not costs and damages in cases of of Consultation although the statute precisely requires their assent and and assignement therin because they would not feare other men from suing out of Prohibitions and pursuing of the same The Prohibitions of the law as haue beene before shewed are neither many nor much repined at because they containe a necessarie distinction betwéene Iurisdiction and Iurisdiction and imply the kings right and subiectes benefit but the