or forced to forbeare for want of Characters As the Bishop was to be look't after by those that would come into a Religious House so also by those that would goe out So it seemeth by the Law of Alfred 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Nunnan 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 If any leade a Nanne out of a Monasterie without the Kings leave or the Bishops hee shall pay 120 Shillings In the filling of Appropriations which were made over to the Religious Houses the Law saith that the Bishop had this power That he could binde the Proprietaries to set out for the Vicar Incumbent such a Convenable Portion of the Incomes as the Bishop in his judgement should be pleased to allot See Alexand. 3. to the * Bishop of Worcester De Prab dig C. De Monach. And there be that are well enough perswaded that the B. even now also ought in this Right to be acknowledged and the ground is for that it may be likely to stand without injurie to the Statute of Dissolution For it seemeth by the 27. of H. 8. c. 28. that these Lands are to be holden in as large and ample manner as the Proprietaries did then hold them or ought to have done And an other Clause of the same Statute Saveth to every Person and Persons and bodies politique c. other than Abbots c. all such right title interest c. as they or any of them hath ought or might have had c. But the consideration of this I restore to him from whom I had it The late learned Civilian in the Poore Vicars Plea where the Reader who desireth more of it may be further satisfied Now it is to bee observed how farre forth the Patron was to depend upon the Bishop for the filling of any other Church or Oratorie Most proper to this purpose is the Emperours Novell which was decreed litle lesse then eleven hundred yeares past about the latter end of the 5 Centurie 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is If any man shall erect an Oratorie and his desire be to present a Clerke thereunto by himselfe or his heires if they furnish the Clerke with a Competencie and nominate to the Bishop such as are worthy they may be ordain'd But if those who are intimated by them be rejected by the Canons as unworthy of the Ministrie then let it be the care of the most Reverent Diocesan of the place to present such as in his discretion he shall conceive better of That we may the more certainly know what the Emperours minde is it must be considered out of Panormitan what is the meaning and originall of the Patrons Right which by the Canon is called Ius Patronatus and by the Common Law Advouson The Abbot out of the Law saith that this is Ius honorificum onerosum utile alicus competens in Ecclesia pro eo quod Diocesani consensu Ecclesiam fundavit construxit veldotavit ipse vel is à quo causam habuit Abb. in Rubric He therefore that founded a Church that is fundum dedit gave a piece of ground De Ier. Pat. C. Nobu He also that built a Church upon it 16. q. 7. c. Monasterium Or lastly he that endowed the Church built C. Piae Mentesibid was thenceforth qualified with this Right of Patronage But all this while it is especially to be noted that all this was done Consensu Dioesanâ— which seemeth to have beene so requisite by that of Clement C. Nobis De Iur. Patron Si quis Ecclesiam cum assensu Dioecesanâ— construxit ex eo lus Patronatus acquirit that if Ex eo should be referr'd to assensu nothing makes a Patron but the Will of the Diocesan And it is to bee understood that when a man dispendeth of his temporall estate towards the Founding Erecting or Endowing of a Church whatsoever shall be so conferred after consecration is actually delivered up and made over to God himselfe therefore it must needs be that from henceforth these things cannot properly belong either to the Bishop or the Patron for the Emperour saith Quod Divini juris est id nullius est in bonis Instit de Rerum Divisione §. Nullius rate that neither of them should presse too much the one upon the other and therefore in the beginning the usuall rate that they set downe betweene the beneficed man and the Religious person was the one halfe of the Benefice for that it was not thought that the Pope would charge a Church above that rate But after by the covetousnesse of Monkes and Friers themselves and the remisnesse of Bishops who had the managing of this businesse under the Apostolique See the Incumbents part came to so small a portion that Vrban the fifth by Othobon his Legate here in England in the yeare of Salvation 1262. was faine to make a Legantine whereby he forbad all Bishops of this Land to appropriate any more Churches to any Monasterie or other religious houses but in cases onely where the persons or places to whom they were appropriated were so poore as that otherwise they were not able to sustaine themselves or that the cause were so just that it might be taken rather to be a worke of charitie than any inforcement against Law and that beside with this provisâ— as that if the new proprietaries within sixe moneths next after should not set out a competent portion for the Minister of the fruits of the Benefice themselves should assigne out a sufficience thereout according to the quantitie thereof Which constitution because it tooke not the effect that was hoped there were two Statutes Only the dispensation of those things must be referr'd to Men And to that purpose who of all men could be more fit then the Bishop It seemeth therefore that the right of Presentation may be originally in the Diocesan and wee shall finde it hath beene so by a certaine passage recorded in the life of Bishop Vlrick where the Author faith That when any would build a Church in his Territorie the Bishop freely consented both to the Erection and Consecration Si confestim ille consecrata Ecclesia legitimam dotem in terrâ—s mancip 〈…〉 s in manum ejus celsitudinis dare non differret c. which is answerable to what was before said concerning the dowrie of a Church It followeth in the Author Consecrationeque per act à doteque contradita comprobato illic Prâ—sbytero altaris Procurationem commendarit Ecclesia Advocationem firmiter legitimo hareds panno imposito commendavit that the Consecration being ended and the Endowment delivered up the care of the Altar was committed to the Priest allowed and the Advouson firmely conveighed to the lawfull heire by the putting on of a Robe Author vita Vdalrici C. 7. p. 52. edit August Vindel. 1595. It is now time to consider how farre forth the Bishop departed with this Right to the Lay Patron and for what causes Wee have said that the Bishops Right was not to the things
matter of the ninth Collation THe ninth and last Collation conteineth matter of succession in goods that as long as there be any Descendent either Male or Female so long neither any Ascendent or any Collaterall can succeed and that if there be no Descendent then the Ascendent be preferred before the Collateral unles they be brethren or sisters of the whole blood who are to succeed together with the Ascendent but in Ascendents those are first called which are in the next degree to the deceased then after those which are in a more remote degree that in Collaterals all be equally admitted which are in the same degree and of the same Parents whether they be male or female That the lands of any Church Hospitall or other like Religious place be not sold aliened or changed unlesse it be to the Princes house or to or with an other like Religious place and that in equall goodnesse and quantitie or that it be for the redemption of Prisoners and that they be not let out to any private man more than for 30. years or 3. lives unlesse either the houses be so ruinated that they cannot be repaired without great charges of the Church or other religious houses or that it be overcharged with any debt or duties belonging to the Exchequer and thereby there commeth small revenue to the Church or Religious place there-out in every of which cases it is lawfull to let out the same for ever reserving a yearly competent rent and other acknowledgement of other soveraignty therein That the holy vessels of the Church be not sold away unlesse it be for the ransoming of Prisoners or that the Church be in debt in which case if they have more holy vessels than are necessary for the service of the Church they may sell those which are superfluous to any other Church that needeth them or otherwise dispose of them at their pleasure for the benefit of the Church or other holy place whose they are Where Usurie in processe of time doth double the principall there Usurie for the time to come doth cease and those particular payments which afterwards doe follow are reckoned in the principall What kinde of men are to be chosen Bishops such as are sound in faith of honest life and conversation and are learned that such as chuse them sweare before the choyce they shall neither chuse any for any reward promise friendship or any other sinister cause whatsoever but for his worthinesse and good parts onely That none be ordeined by Symonie and if there be that both the giver taker and mediator thereof be punished according to the Ecclesiasticall Lawes and they all made unworthy to hold or enjoy any Ecclesiasticall living hereafter That if any at the time of any Bishops election object any thing against him that is to be elected the election be staid till proofe be made of that which is objected by the adversarie against the partie elected so that he prove the same within three Moneths and if any proceeding be to the consecration of the same Bishop in the meane time it is void That the Bishop after he is ordeined may with out any danger of Law give or consecrate his goods to the use of the Church where he is made Bishop and that he may give such fees as are due to the electors by law or custome That Clerks be not compelled to undergoe personall functions and services of the common-wealth and that they busie not themselves in secular affaires and so thereby be drawn from their spirituall function That Bishops for no matter or cause be drawne before a temporall Judge without the Kings speciall commandement and if any Judge presume to call any without such speciall warrant the same is to lose his office and to be banished therefore That no Bishop absent himselfe from his Dioces without urgent occasion or that he be sent for by the Prince and if any doe absent himselfe above one yeare that he shall lack the profit of his Bishoprick and be deposed from the same if he returne not againe within a competent time appointed for the same What maner of men are to be made Clerks such as are learned and are of good Religion of honest life and conversation and are free from suspition of incontinencie that no Minister be lesse than 35. yeares of age and that no Deacon or Subdeacon be under 25. that all Clerks and Ministers be ordeined freely If any build a Church and indow the same that he may present a Clerk thereto so that he be worthy to be admitted thereto but if he present an unworthy man then it apperteineth to the Bishop to place a worthy man therein If any Clerke be convicted to have sworne falsely hee is to be deprived of his office and further to be punished at the discretion of the Bishop That Clerks be convented before their owne Bishops and if the parties litigant stand to the Bishops order the Civile Judge shall put it in execution but if they agree not upon the judgement then the Civile Judge is to examine it and either to confirme or infirme the Bishops order and if he confirme it then the order to stand and if not then the party grieved to appeale If the cause be criminall and the Bishop finde the party guiltie then the Bishop is to degrade him and after to give him over to the secular power the like course is to be held if the cause be first examined before the temporall Judge and the partie found guiltie for then hee shall be sent to the Bishop to be deprived and after againe shall be delivered to the secular powers to be punished That Bishops be convented before their Metropolitans That such as in Service time do abuse or injure the Bishop Si vero etiam Litaniam concusserit capitale periculum sustinebit De Sanctissim Episcop Deo § Si quis cum sacra minist or any Cleark in the Church being at divine service be whipt and sent into banishment But if they trouble thereby the divine Service it selfe they are to dye the death for the same That Lay men are not to say or celebrate divine Service without the presence of the Minister and other Clerkes thereto required That such as goe to Law sweare in the beginning of the suit that they haue neither promised or will giue ought to the Judge and that usuall fees be taken by the Advocates Counsellours Procters or Attournies and if any man take more than his ordinary fees he shall be put from his place of practise and forfeit the foure double of that he hath taken That the 4. generall Councels be holden as a Law and that which is decreed in them That the Bishop of Rome hath the first place of sitting in all assemblies and then the Bishop of Constantinople That all Clergy mens possessions be discharged from all ordinary and extraordinary payments saving from the repairing of Bridges and High wayes where the said possessions doe
common with others Those are common with others which other men fall into and are corrected with like ordinary proceeding as other crimes of like nature are as man-slaughter theft adultery and such like Those are proper which doe properly appertaine to militarie discipline and are punished by some unu 〈…〉 or extraordinarie punishment as are these not to appeare at Musters to serve under him he ought not to serve to vage or wander long from the Tents although he returne of his owne accord to forsake his Colours or his Captaine to leave his standing to fly over to the Enemy to betray the Hoast to be disobedient to his Captain Coronell or Lieutenant to lose or sell his Armour or to steale another mans to be negligent in forage or providing of victuall to neglect his watch to make a mutiny to fly first out of the field or other like which are delivered in the late cited titles Concerning this Arrian who wrote the life of Alexander the great thus saith Every thing is counted an offence in a Souldier which is done contrary to the common discipline as to be negligent to be stubborne to be slothfull The punishments wherewith Souldiers are corrected are these either corporall punishment or a pecuniarie mulct or injunction of some service to be done or a motion or removing out of their places and sending away with shame By capitall punishment is understood for the most part death or at the least beating unlesse happily it be pardoned either for the unskilfulnesse of the Souldier or for the mutinie of the company being thereto drawen by wine and wantonnesse or for the miseration or pittie of the party offending All which a wise Judge moderateth according to the quality of the person the quantitie of the offence and the opportunitie of the time SECT 6. That the third and last matter of extraordinary Cognisance in the Civill Law here with us concerneth the bearing of Armes and ranging of every man in his proper place of honour and first of Armory THe last extraordinary matter that the Civile Law Judge dealeth in is the bearing of Armes and the ranging of every man into his roome of honour according as his place requires and here first of Armes For skill in Armory although it be a thing now almost proper to the Heraulds of Armes who were in old time called Feciales or Caduceatores because they were messengers of warre and peace either to proclaime the one or denounce the other yet the ground thereof they have from the Civile Law so that thereby to this day they may be directed in their skill or controlled if they doe amisse For besides that there are many other places in the Law C. ut nemo privatus praediis suis vel alienis vela regia imponat ut nemini liceat sine Jud. author signa imponere c. De statuis imaginib ut nemini liceat fignum salvatoris c. De his qui potentiorum nomine titulos praediis suis affigunt ibi doct ff dererum divisio l. sanctum C. de ingenuis manumiss l. adrecognoscenda ff de rerum divisione l. sanctum which touch Armory as appeareth by the titles here quoted in the margent Barthol himselfe maketh a speciall tractate thereof and divideth the whole matter of Armes into three ranks according to the divers sorts of men that bare them for some are Armes of some publick dignitie and office as the Armes of the Legate or Proconsull the Armes of Bishops the Armes of the Lord Admirall other are Armes of speciall dignities as Armes of Kings and Princes which no man is to beare or paint in his house or stuffe unlesse it bee for to shew his duetie or subjection therein The third sort is of those which are private mens Armes of whom part have them by the grant of the Prince or by authoritie of those to whom the Prince hath given power to grant Armes to others as hath the Earle Marshall within this Realme of England others have taken them by their owne authoritie which albeit in former times they might doe as also they might take such names as every one did like of for names and signes in the beginning were invented for to know and discerne one man from an other and as every man might change his name so might hee change his signe so that it were not done in fraud and deceit but after it was forbidden both that any man should C. de mutatione nominis l 1. ff de Falsis l. sal si nominis change his name because it was not thought it could be done with any good meaning and that no man should beare Armes of his owne authoritie and therefore Officers were appointed under Princes as I have said who should give Armes to such as deserved well of the common-wealth either in warre or peace for albeit in the beginning Armes and Colours were proper to men of warre to avoid confusion in the hoast and to discerne one company from an other yet when it came to be a matter of honour it was challenged no lesse by men of peace than by men of warre for true indeede is that saying of Tully Parva sunt foris arma nisi est consilium domi and the Emperour speaking of the benefit that Advocates and such like bring to States L. Advocati C. de Advocatis diversorum â—udicorum and Common-wealths saith thus Advocates which breake the doubtfull fates of causes and with the strength of their defence sundry times as well in publick causes as in private raise up those that are falne and releeve those which are wearied doe no lesse good unto man-kinde than if by warre and wounds they saved their parents and countrey for we saith hee doe not count that they onely doe warre for our Empire which do labour with sword shield and target but also our Advocates for indeed the Advocates or Patrons of causes doe warre who by confidence of their glorious voyce doe defend the hope life and posteritie of such as be in danger thus saith hee and thereupon commeth that distinction of Castrense peculium Et quasi castrense peculium signifying thereby that albeit Counsellours to the state Lawyers and such like be not actuall warriers yet they are representative warriers and doe no lesse serve the Common-wealth than they The Souldier riseth betime in the morning that he may goe forth to his exploit the Advocate that hee may provide for his Clients cause hee wakes by the trumpet the other by the cock he ordereth the battell the other his Clients businesse hee taketh care his tents bee not taken the other that his Clients cause be not overthrowne so then either of them is a warrier the one abroad in the field the other at home in the Citie Besides Barthol treateth in that place what things are borne in Armes either naturall as beastes birdes fishes mountaines trees flowres sunne moone starres or such like or artificiall not taken
passage will I note which of them have beene most chiefly oppugned and as occasion shall fall out speake of them PART III. CHAP. I. SECT 1. How the Jurisdiction which is of Civile and Ecclesiasticall cognisance is impeached by the Common Law of this Land and first of the impeachment thereof by the Statute of Praemunire facias ANd thus much as concerning those parts of the Ecclesiasticall Law which are here in use with us Now it followeth to shew wherby the exercise of that Jurisdiction which is granted to bee of the Civile and Ecclesiasticall cognisance is defeated and impeached by the Common Law of this Land which is the third part of this Division The impeachment therefore is by one of these meanes by Praemunire by Prohibition by Injunction by Supersedeas by Indicavit or Quare impedit but because the foure last are nothing so frequent nor so harmfull as the others and that this Booke would grow into a huge volume if I should prosecute them all I will onely treat of the two first and put over the rest unto some better opportunitie A Praemunire therefore is a writ awarded out of the Kings What is a Praemunire Bench against one who hath procured out any Bull or like proces of the Pope from Rome or else-where for any Ecclesiasticall place or preferment within this Realme or doth sue in any forreine Ecclesiasticall Court to defeat or impeach any Judgement given in the Kings Court whereby the body of the offender is to bee imprisoned during the Kings pleasure his goods forfeited and his lands seized into the Kings hand so long as the offender liveth This writ was much in use during the time the Bishop of Rome's authoritie was in credit in this land and very necessarie it was it should be so for being then two like principall authorities acknowledged within this Land the Spirituall in the Pope and the Temporall in the King the Spirituall 25. Ed. 2. 27. Ed. 3 c. 1. 38 Ed. 3. c 1. 2. 7. Rich. 2. c. 12. 13. Rich 2. c. 2. 2. H. 4 cap. 3. grew on so fast on the Temporall that it was to be feared had not * Neverthelesse even out of these Statutes have our Professours of the Common Law wrought many dangers to the Jurisdiction Ecclesiasticall threatning the punishment conteined in the Statute Ann. 27. Edw. 3. 38. ejusdem almost to every thing that the Court Christian dealeth in pretending all things dealt with in those Courts to be the disherison of the Crowne from the which and none other fountaine all Ecclesiasticall Jurisdiction is now derived whereas in trueth Sir Thomas Smith saith very rightly and charitably that the uniting of the Supremacie Ecclesiasticall and Temporall in the King utterly voideth the use of all those Statutes Nam cessante ratione cessat lex and whatsoever is now wrought or threatned against the Jurisdiction Ecclesiasticall is but in emulation of one Court to an other and by consequent a derogation of that authority from which all Jurisdiction is now derived and the maintenance whereof was by those Princes especially purposed D. Cowel in the Interpreter these Statutes beene provided to restraine the Popes enterprises the spirituall Jurisdiction had devoured up the temporall as the temporall now on the contrary side hath almost swallowed up the spirituall But since the forreine authoritie in spirituall matters is abolished and either Jurisdiction is agnised to be setled wholly and onely in the Prince of this land sundry wise mens opinion is there can lye no Praemunire by those Statutes at this day against any man exercising any subordinate Jurisdiction under the King whether the same bee in the Kings name or in his name who hath the same immediatly from the King for that now all Jurisdiction whether it be Temporall or Ecclesiasticall is the Kings and such Ecclesiasticall Lawes as now are in force are called the Kings Ecclesiasticall Lawes and the Kings Ecclesiasticall Courts for that the King cannot have in himselfe a contrarietie of Jurisdiction fighting one against the other as it was in the case betweene himselfe and the Pope although hee may have diversitie of Jurisdiction within himselfe which for order sake and for avoyding of confusion in government hee may restraine to certaine severall kindes of causes and inflict punishment upon those that shall goe beyond the bounds or limits that are prescribed them but to take them as enimies or underminers of his state he cannot for the question here is not who is head of the cause or Jurisdiction in controversie but who is to hold plea thereof or exercise the Jurisdiction under that head the Ecclesiasticall or Temporall Judge Neither is that to move any man that the Statutes made in former times against such Provisors which vexed the King and people of this land with such unjust suits doe not only provide against such Proces as came from Rome but against all others that came else-where being like conditioned as they for that it was not the meaning of those Statutes or any of them therby to taxe the Bishops Courts or any Consistory within this land for that none of them ever used such malepert sawcinesse against the King as to call the Judgements of his Courts into question although they went farre in strayning upon those things and causes which were held to be of the Kings temporall cognisance as may appeare by the Kings Prohibition thereon framed And beside the Archbishops Bishops and other prelates of this Land in the greatest heat of all this businesse being then present in the Parliament with the rest of the Nobility disavowed the Popes insolencie toward the King in this behalfe and assured him they would and ought to stand with his Majestie against the Pope in these and all other cases touching his Crowne and Regalitie as they were bound by their allegeance so that they being not guilty of these enterprises against the King but in as great a measure troubled in their owne jurisdiction by the Pope as the King himselfe was in the right of his Crowne as may appeare out of the course of the said Statutes The word Elsewhere can in no right sence be understood of them or in their Consistories although Et le stat est in Curia Romana vel alibi le quel alibi est a entender en la Court l'Euesque issint que si hōme soit sue la pur chose que appent al Commen ley il aura Praemunire Fitzherb Nat. Bre. Tit. Praemunire facias some of late time thinking all is good service to the Realme that is done for the advancement of the Common Law and depressing of the Civile Law have so interpreted it but without ground or warrant of the Statutes themselves who wholly make provision against forreine authority and speake no word of domesticall proceedings But the same word Elsewhere is to be meant and conceived of the places of remove the Popes used in those dayes being
Archbishops and many other Bishops made this Law for holy Church 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 aelcum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 men be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is Wee command all Christian men by their Christianitie to pay Tythes Church-sceat and Almesfee if any refuse to doe it let him be accursed Concerning the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mentioned in the Law it was that Almes-money which was called the Peterpence for when Ina the West Saxon King went in pilgrimage to Rome he made it a Law to his Subjects that every house should pay a yearely pennie to the Pope this was to be tendred at S. Peters tyde as appeareth by Edgars Law num 4. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. See also the Lawes of Cnute and Edward the Confessour And whereas we finde the curse of Excommunication here annexed by the Law to this Sacriledge of with holding the Tenth it is not without a parallel for amongst those solemne Execrations which by a Councell held here at Oxford were to be openly pronounced foure severall times in every yeare wee finde these Church-robbers twice branded with Anathâ—ma In the first Article thus An they ben accursed the rightys of holy Chyrche as in Londys tenÌ„ts rent possessions maryces lesours pastours wayes pathes wetingly and vnyustyly or malycyously defoulen and with-holden councelen huyden or to with-hold or to avoyde procuren In the 26. Article in this manner Also all they ben accursed more lesse whiche wyttingly wylfully or malycyously and vnwysly for ony man hath had vttirly the Seruauntis of God that is to say their Persones Vicars Chapelyns Parrochyalys whatsoever condycyon that they ben or fame the thythes prouentys profytys oblacyons of custume and consuetude vsed lasse or more with-holden or done to bee with-holden or the sayed thythes or oblacyons chaungen or turnen in to other vse than it was prouyded in holy Chyrche law But of this see more Cap. 3. Sect. 2. In the Lawes of King Edgar it was decreed in the first place 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That Gods Church should have all her rights and that every man should pay his Tythes to the elder Minster or Mother-Church where hee heareth the Word cap. 2 of Edgars Lawes See also the 3. 4. Chapters In the Lawes of King Cnute cap. 8. thus it is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 eal 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈…〉 man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That a man must bee carefull rightly to pay Gods rights every yeare to wit the Plough-almes 15. nights after Easter and the Tythe of young Cattell by Whitsontide and the fruits of the Earth by Alhalgentide And if there bee any that will not pay his Tenth so as wee have said that is the tenth Acre according to the going of his plough then the Kings Reve and the Bishops and his that owes the land together with the Masse-priest of the Minster may goe and take away the tenth part whether he will or no and give it to the Minster whereunto it belongeth The ninth part hee may take to himselfe As for the eight parts let them be divided in two and let halfe goe to the Land-lord and halfe to the Bishop whether it bee one of the Kings men or a Thane Concerning the Plough-almes for which the Saxon saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lambard saith thus Ego me legisse memini in vetustissimo quodam legum Ethelreds Regis libello impositum tunc temporis in singula aratra denarium unum c. For first before the Conquest King Aethelstane made a Law that every man should pay his Tythes to God in manner as Jacob did who made a vow to God If God would bring him back againe to his Countrie hee would when hee returned home pay Tythes to God of all that God should give him the like did King Edgar and King Edmund commanding that those which wilfully refused to pay their Tythes should bee excommunicated William the Conquerour as Roger Hovenden reporteth in the 4. Hovenden part 2 cap De Decimis Ecclesiae yeare after his conquest having gotten some time of rest from war and setling of rebellious spirits who kicked at his government at home entred into a consideration of the well ordering of the Church Common-wealth by wholsome Lawes and therefore by the advise of his Councell he suÌ„moned all the great Prelates Potentates of this Land with twelve other sufficient men of every Shire experienced in the Lawes and customes of the Land that he might by them learne by what Lawes and customes the Land was governed before himself came to the Crown therof straitly charging commanding them upon his high displeasure they should make true report to him thereof without adding any thing therto or taking any thing therefro who beginning with the Lawes of holy Church because by it the King and his Throne are established among other Lawes and liberties of the Church recorded this for one which I will verbatim set downe in Latin as it is penned by the Authour De omni Annona decima garba est Deo reddita ideò reddenda See for this the lawes of Edward the Confessour num 8. 9. by whom this decree was first made and afterwards ratified by the Conquerour Si quis gregem Equarum habuerit pullum reddat decimum qui unam tantùm vel duas habuerit de singulis pullis singulos denarios praebeat Similiter qui plures Vaccas habuerit decimum vitulum qui unam vel duas de singulis vitulis singulos denarios qui caseum fecerit det decimum Deo etsi non fecerit lac decima die Similiter Agnum decimum Vellus decimum Butyrum decimum Porcellum decimum De Apibus verò similiter decimum commodi quinetiam de bosco de prato de aquis de molendinis parcis vivariis piscariis virgultis hortis negotiationibus omnibus rebus quas dederâ—t Dominus decima pars ei reddenda est qui novem partes simul cum decima largitur Et qui eam detinuerit per justitiam Episcopi Regis si necesse fuerit ad solutionem arguatur Haec enim S. Augustinus pradicavit docuit haec concessa sunt à Rege Baronibus populo Sed postea instinctu Diboli multi â—am detinuerunt Sacerdotes negligentes non curabant inire laborem ad perquirendas eas eò quòd sufficienter habebant vitae suae necessaria Multis enim locis medo sunt tres vel quatuor Ecclesâ—ae ubi tunc temporis una tantùm fuit sic caeperunt minui This Augustine to whom the Conquerour heere referreth himselfe was Augustine the Monke whom Gregorie the great about the yeare of our Lord God 569. sent heere
hold plea of any thing that is in the said Proviso conteined but it is rather directive and sheweth where the Ecclesiasticall Judge is to give way to immunities and to pronounce for them so that for any thing is conteined in this Proviso to the contrary the cognisance of these matters especially Priviledge Prescription and Composition still remaineth at the triall of the Ecclesiasticall Law as they did before this Proviso was made for Deprascript lib. 2. tit 26. De Privileg lib. 5. tit 33. Tythes and other Ecclesiasticall dueties as may appeare by the severall titles in the same Law hereon written And for the other words Law and Statute therein mentioned when as the King hath two Capacities of government in him the one Spirituall the other Temporall and his high Court of Parliament wherein Lawes are made doth stand as well of Spirituall men as Temporall men and so ought to stand in both houses if the ancient Booke De modo tenendi Parliamenti be true and authenticall which makes the upper House of three States the Kings Majestie the Lords Spirituall and the Lords Temporall and the lower House in like sort of three other the Knights the Procurators for the Clergie and the Burgesses and his Majestie hath within this Realme aswell Ecclesiasticall Lawyers as Temporall which are no lesse able to judge and determine of Ecclesiasticall matters then the Temporall Lawyers of temporall businesse It is not to be imagined but as his sacred Majestie will have those Lawes to be held Temporall and to have their constructions from Temporall Lawyers which are made and promulged upon Temporall rights and causes So also his Highnesse pleasure is and ever hath beene of all his predecessours Kings and Queenes of this Land that such Lawes and Statutes as are set out and published upon Ecclesiasticall things and matters shall be taken and accounted Ecclesiasticall and interpreted by Ecclesiasticall Lawyers although either of them have interchangeably each others voyce in them to make them a Law And that the King doth infuse life into either of the Lawes when as yet their substance is unperfect and they are as it were Embryons is in temporall matters by his temporall authoritie and in spirituall matters by his spirituall authoritie for to that end he hath his double dignitie in that place as also the Ecclesiasticall Prelates sustaine two persons in that place the one as they are Barons the other as they are Bishops So that even the orders of the House doe evince that there are two sorts of Lawes in that place unconfounded both in the head and the body although for communion sake and to adde more strength to each of them the generall allowance passeth over them all And as they rest unconfounded in the creation of them so ought they to be likewise in the execution of them as the Temporall Law sorts to the Temporall Lawyers so the Spirituall Lawes or Statutes should be allowed and allotted unto the Spirituall Lawyers And as the nomination of these words Law or Statute in this precedent Proviso makes not the Law or Statute Temporall but that it may remain wholly Ecclesiasticall by reason of the Spirituall matters it doth containe the power of him that quickneth it powreth life thereinto so much lesse can the inserting of these tearmes Priviledges Prescriptions or Composition reall intitle the Common Law to the right thereof or the Professours of the said Law to the interpretation thereof for that matters of these titles so farre as they concerne Tythes and other Ecclesiasticall dueties have beene evermore since there hath beene any Ecclesiasticall Law in this Land which hath beene neere as long as there hath beene any profession of Christianitie with us of Ecclesiasticall ordinance neither ever were of the Temporall cognisance untill now of late that they transubstantiate every thing into their owne profession as Midas turned or transubstantiated every thing that hee touched into gold CHAP. III. SECT 1. How it comes to passe that when tythes were never clogged with custome prescription or composition under the Law they are clogged with the same under the Gospel and the causes thereof BUt here it will not bee amisse to inquire since Tythes came in the beginning of the primitive Church within a little time after the destruction of Jerusalem and the subversion of the Jewes policie unto the Christian Church and common-wealth void of all these incumbrances as shall appeare after by the testimonie of sundrie of the ancient Fathers which were neere the Apostles time how it comes to passe since Tythes are no lesse the Lords portion now than they were then and in the Patriarches time before them that these greevances have come upon them more under the Gospel than ever they did under the Law for then never any Lay man durst stretch out his hand unto Malach. 3. them to diminish any part thereof but hee was charged with robberie by the Lords owne mouth and in punishment thereof the heavens were shut up for giving raine unto the earth and the Palmer-worme and Grashopper were sent to devour all the greene things upon the earth And for Ecclesiasticall men it is not read any where in the Scripture that ever they attempted to grant out any priviledge of Tythes to any person other than to whom they were disposed by the Law or to make any composition thereof betweene the Lay Jew and the Lords Levites every of the which have beene not onely attempted against the Church in Christianitie but executed with great greedinesse so farre worse hath beene the state of the Ministery under the Gospel than was the condition of the Priests and Levites under the Law SECT 2. That the causes are two fold First The violent intrusion of Lay men and secondly The over-much curiositie of Schoole men and first of the first cause and therein concerning Charles Martels Infeudations and the violent prescriptions ensuing thereupon THe beginning whereof although it be hard for mee to finde out because there is small memory thereof left in Stories yet as farre as I can by all probabilities conjecture this great alteration in Ecclesiasticall matters came by two occasions the one by the violence of the Laitie thrusting themselves into these Ecclesiasticall rights contrary to the first institution thereof for when they were first received into the Christian world they were received and yeelded to for the benefite of the Clergie onely as in former time under the Law they had beene for the use of the Priests and â—evites onely The other was the too too much curiositie of Schoolmen who being not content with the simple entertainment of Tythes into the Church as the ancient Fathers of the primitive Church received them would needes seek out how and in what right and in what quantitie this provision belongs unto the Church wherein they did by their overmuch subtilty rather confound the truth than make that appeare which they intended to doe By the first of these was
imbrace it and kisse it as a golden birth or as if that Juno her selfe had beene present at the Nativitie thereof And the devise is this A Bishop being owner of a Manor yet not divided into Tenancies nor having any Parsonage erected upon it ordaineth the one and divideth out the other here the Bishop being seised in the whole Manor before the said division because hee is a Clergie man is supposed to be in possession as well of the Tythes as of the Manor it selfe and therefore after creating a Parsonage and dividing out his Tenancies may retaine and keepe to himselfe and his said Tenants so much of the said Manor discharged of Tythes as him listeth and assigne over the rest for the maintenance of the Minister and that his Tenants after may challenge exemption from Tythe as the Bishop did for that they were exempted by his capacitie while they were in his owne hand Neither of which is so by Law for insomuch as a Bishop is an owner of a Manor and is a prime founder of a Benefice hee hath no more right to the Tythe thereof than a meere Lay Patron hath who for his zeale to the Church to incourage others to be like affected to Gods Religion as himselfe is may have some small pension assigned him and his for ever by the Bishop out of the same benefice in acknowledgement of the erecting founding or ondowing thereof but for any portion of Tythes to him or his hee could never retaine any nor can to this day neither yet can the Bishop himselfe unlesse perhaps hee will be like to Ananias and Saphira which held part of the price of their ground from the Lord and were worthily punished for the Actorun 〈…〉 same And as they cannot detaine it themselves being spirituall men so much lesse can they passe it over to any Lay man for that Lay people neither by Gods Law neither by Canons and Decrees of the Church were ever capable of Ca quamvis de decimis thâ— Abnum 5. them yea it was so farre off that ever any Bishops durst infeoffe any Lay man in Tythe that whosoever did it was to be deposed excommunicated untill such time as he restored the same to the Church againe And to say the truth Ca tua nobis de decimis Tythes were never at any time in Bishops as in Fee but in very few cases as where the Bishop had a Parish himselfe distinct from other Parishes for sundry Bishops in sundry places had so and then the Tythes of the Parish did belong unto them in such sort as they do now belong unto the Incumbents thereof Or if the Tythe were not within any Parish for then in like sort it did belong unto the Bishop of the Diocesse in whose Territory it was albeit now within this Realme it belongs unto the King or where the Parishes were undistinguished for then were they the Bishops not to convert to his owne use but to divide among the Ministers and Clerkes which laboured in the Diocesse under him in Preaching Teaching Ministring of the Sacraments and executing of other Ecclesiasticall functions every one according to his desert Or that it were the fourth part of the Tythe for then did it belong to the Bishop in Law towards his owne reliefe and the repairing of the Parish Church where they grew and not to conferre or bestow the same as him thought best which notwithstanding now also is growne out of use and nothing left unto the Bishop from the Churches of his Diocesse beside his Procurations and Synodals to be paid by the Incumbents in the time of his Visitation Beside which cases it cannot be found that ever any Bishop had to doe with Tythes much lesse to alyen dispose and transferre the same as him listed and to whom him listed SECT 2. That Bishops endowments in the beginning stood not in Tythes but in finable Lands FOr it is very certaine Bishops endowments themselves in the beginning of the Primitive Church stood not in Tythes but in good Temporall and finable Lands which gracious Princes and other good benefactors of former Ages bestowed upon them as it doth appeare out of the Câ—de sacrosanct Eccl. de Epist Cler 〈…〉 titul first booke of the Code where sundrie Lawes of Constantine the great and other gracious Emperours even to the time of Justinian himselfe are recorded both for the conferring of Lands upon the Church and those such as should neither be barren neither charged with Statute or other debts of the Exchequer as also for the conserving and safe keeping of such Lands as vvere in such sort conferred Authent multo magis C. de sacro sanct Eccles and bestowed upon them and it is manifest also out of our owne stories both in the Britans time during whose Raigne there are reported to have beene fifteene Iocelin of Furnis in his booke of British Bishops Sâ—ow fol 37. Archbishops in the See of London well endowed with possessions and if they were Archbishops then must it necessarily also follow there were Bishops for that these are respective one to the other The like is vvritten of the Saxons Raigne under whom the See of Canterburie Hen. Huntington lib. 3. the See of London the See of Rochester and the See of Yorke for these foure vvere first set up againe after the Saxons first received the faith at the Preaching of Augustine Melitus and Justus Paulinus are namely reported to have beene inriched vvith large Dominions Charta regis Ethelberts charta Wâ—ll primâ— Stow fol â—7 and possessions given to every of them for their maintenance And vvhat course hath beene held vvith Bishoprickes erected since the Conquest the ruinated state of them and others doe shew amongst whose ancient livelihood is not to be found any indowment by Tythes but such as of late have come unto their hands and that for the most part by change of their good finable Lands for impropriate parsonages And therefore much to blame are some of our time who when as their predecessours in former ages never admitted of any impropriate parsonage into their possessions but onely in such cases as have beene before remembred for the name and place of a Bishop will be content to make Glaucus Homer Iliad change with Diomede that is give their golden Armour for the others brazen Armour or doe like as Roboam Regum 1. c. 14. did who in stead of golden shields that his father Salomon did hang up in the Temple put in their places shields of brasse for the change is no better and so well know they that procure the same otherwise would they never so instantly desire it SECT 3. That the turning of Bishops indowments into tenthes or Tythes for impropriate Parsonages is unsutable to the first institution and very dangerous ANd therefore an unsutable devise was that and contrary to the course of former Ages which was procured in the first yeare of the
extinct in them but there was some outward shape or forme of the first ordinance left them so farre forth as that they made continuall prayers and intercessions to God for them but when it came once into the Laities hands there was not so much as a foot-step left of the first institution for they neither preach unto the people pray for them nor keepe any hospitalitie among them but spend all the whole revenues of the Church upon their private uses which many times are unfit for such Spirituall provision to bee spent in so that for the benefite of the Church the returne of them might be well wisht albeit in so farre as they are perplexed and intricated by the Lawes of this Land with private mens states it would be hard to be performed for the changing of them would be much like as if a man should move one stone in a vaulted worke such as the stonie roofes of many Cathedrall Churches and Colledges are where the taking of one stone away is the jeopardie of the whole building But yet let those to whom this doth appertaine consider whether in this it were better to please God than man CHAP. VI. SECT 1. That Tythes are a Parochian right and how Parishes in the Christian world came first to be instituted BUt now to returne thither where I left as every good Bishop or any of his Clergie did win any Conntrie-village which the Latins call Pagus to the Faith so they erected up a Church there and appointed a Pastor or Minister over them to informe them in the Law of God and to minister the Sacraments unto them and set out for his maintenance the Tythe of that Page or Village Hospinian De origine Monochatus to which he was assigned Pastor which they did in Tythes rather than in any other provision both because it was the Lords inheritance in all ages and appointed by him for the maintenance of such as served in his Tabernacle during the dispensation of the mysteries of the Law and now was returned againe into Gods hand by the expiration of the demise of them made unto the Levites during the said time of dispensation also because the people would be more easily induced to part with one part out of every ten of all the fruites of their grounds and labours of their hands unto the Minister than if there had beene any other regular imposition laid upon them for certaine it is Villages and Pages came more hardly and more lately unto the Faith than great Townes and Cities did and thereupon grew that name of opposition which was betweene Christians that dwelt in Cities and the Infidels that dwelt in Pages that the one were called Pagans the other were called Christians taking their names upon the difference of the places where they dwelt But from these Pages as I have said came first the use and practice of Tythes in the Christian world insomuch as after when any Law was made as concerning Tythes they held them evermore for a Parochian right onely and in no sort at the disposition of C. Cùm contingat de D 〈…〉 verb. de â—ure 〈…〉 n gloss the Bishop but in such cases as before is rehearsed insomuch that if a Bishop challenged any Church in his Diocesse he challenged it not in respect of any fee simple hee had in it but in regard of the Spirituall Jurisdiction he had over it And therefore the Authors of this opinion were Ab. ca. nuper de Decim cap. deputati de ludiciis num 16. farre out of the way when as they thought the Bishop had like right in the Tythes of a Church of his Patronage to give and bestow them as hee listeth as hee hath in his demeanes and other his Temporall Lands either to lease them out or divide them into Tenancies as him best liketh Neither is that case cleere or without question whereby they pretend a Bishop being seised in a Manor may prescribe the Tythes of the demeanes thereof by an immemoriall prescription for him and his Tenants and Farmers for yeares and Tenants at will to be exonerated acquitted and priviledged from all Tythes growing thereupon which if it be against an other person than himselfe may hap to bee true although perhaps also that be questionable for that it is not long since Lay-people were capable of that right neither could themselves by Law of the Church at any time grant such Spirituall Rights as these are to a Lay-man either in Feudum or Emphiteusim without danger of Excommunication Ab. cap. ad hoc De Decimis numer 4. or deposition of their owne place as hath beene before shewed But if himselfe or his predecessours were Parsons there either in the right of their Bishoprick as hath beene of late before remembred or that the Benefice was annexed unto their See for the provision of their Table as many Bishopricks had some one or more Benefices appropriate unto them to this purpose then could they not prescribe the Tythes in such sort as is pretended For albeit no prescription proceeds without possession yet no man can prescribe against himselfe although hee be in possession for that evermore there must be two persons in a prescription the one which doth prescribe the other against whom it is prescribed and therefore in these cases it is never said they hold their Tythes by prescription but in the right of their Church or Parsonage In either of which cases if they were Lords of the Mannor and Parsons of the Parsonage together it is not to bee thought they would so respect the good of their Farmer as that they would either hurt their Church or prejudice their owne Table for their Farmers sake which they must doe if they suffer a Prescription to runne against the Church or themselves to exempt the demeanes of the Mannor from payment of Tythes which were due both to the Church and themselves For they were men that both knew in their conscience how much they were bound unto the Church in this behalfe and they were not ignorant what prejudice they should do unto themselves if by prescription they should yeeld to exempt so necessaire a provision for the maintenance of their Hospitality as the Tythes of the demeanes of a whole Mannor and their tenancies are for no small part of their commendation stood in those dayes in their hospitality and therefore it is not to be presumed that they would easily cut off any provision that was fit for the same Besides if by either of these two wayes the Bishop was Parson of the place then did the fruites of the Benefice during every Vacation of the Bishoprick not come to the King as they now doe whereby the Parsonage and Mannor are both consolidated into one for that they are now both holden to be Temporalties but the Parsonages came to the Archbishops of the Province as a spiritualtie granted to his See by priviledge during the vacancie of the Sees
goods and lands but newes being after brought that the said Ralphe was dead beyond the Sea Francis the Brother of the said Ralphe spoyled the said Richard of the possession of all the goods and lands he had of the said Ralphe his Grandfather for that he did pretend the said Agatha his Niece and Mother of the said Richard was not borne of lawfull Matrimonie so that neitheir shee her selfe nor her sonne ought to succeed the Brother of the said Francis but that the inheritance thereof did belong unto himselfe whereupon the said Richard being thus spoyled by Francis his great uncle obtained Letters of restitution to the Bishop of London the B. of Worcester and the B. of Excester under this forme That before they entred into the principall cause which was this Whether the said Agatha were borne in lawfull Matrimonie or not they should restore the said Richard to his Grandfathers inheritance But the Bishop of Rome after understanding by the said Delegates that the plea of inheritance within this Realme did not belong unto the Church but unto the King recall'd that part of his rescript which concerned the restitution of the said Richard to his inheritance and gave order to the foresaid Bishops to proceed in the cause of legitimation willing them to inquire whether the said Agatha were borne of the said Aneline in the life time of her husband Allin when she dwelt and cohabited with him as with her husband or whether the said Ralphe Father of the said Agatha kept the said Aneline openly and publickly while the said Allin yet lived And if they found it to be so then they should pronounce her the said Agatha to bee a Bastard for that Anelina her Mother could not bee counted to bee a wife but a whore which defiling her husbands bed presumed to keepe company with an other her husband yet being alive But if they found it otherwise then they should pronounce her the said Agatha to be legitimate All which was done after the death of the said Ralph and Aneline as the Decretall it selfe shewes Neither was there any authoritie that opposed it selfe against that proceeding but held it to be good and lawfull though it were in terme of speciall Bastardie for then that which they now call speciall Bastardie was not borne Besides hereby it appeareth that the Ordinaries then did not onely proceed in cases of Bastardie incidently that is when a suit was before begun in the Common Law upon a triall of inheritance and that by writ from the Temporall Courts but even originally and that to prepare way unto inheritance or any other good that was like to accrue unto a man by succession or to avoid any inconvenience that might keepe him from promotion as may appeare by this practise following Priests in the beginning of the Raigne of Henry the 3. Constitut Otho innotuit de uxoratis à benefic 〈…〉 amovendis yet married secretly and their children were counted capable of all inheritance and other benefits that might grow unto them by lawfull marriage so that they were able to prove that their parents were lawfully married together by witnesses or instruments which many children did either upon hope of some preferment that by succession or otherwise was like to come unto them or to avoid some inconvenience that otherwise might light upon them for the want of that proofe some their parents yet living others their parents being dead and the proceedings before the Ordinary was holden good to all intents and purposes even in the Common Law for otherwise they would not have so frequented it for as yet there was made no positive Law against marriages of Priests and Ministers but the Church of Rome then plotting against it for that by that they pretended the cure of Soules was neglected and the substanc of the Church wasted and dissipated did by Otho then Legate à Latere to Gregory the ninth order by a Constitution that all such Ministers as vvere married should be expelled from their Benefices and their Wives and Children should be excluded from all such livelihood as the Fathers had got during the time of the Marriage either by themselves or by any middle person and that the same should become due unto the Church wherein they did reside and that their children frō that time forth should be disabled to injoy holy orders unlesse they were otherwise favourably dispensed withall which Constitution although it wrought to that effect to barre Priests for that time of their Marriage untill the light of the Gospell burst out and shewed that that doctrine was erronious yet to all other effects the proceeding in the case of Bastardie stood good as a thing due to be done by holy Church And therefore Linwod comming long after in his Catalogue that hee maketh of Ecclesiasticall causes reciteth Legitimation for one among the rest for that in those daies there was no dispute or practise to the contrarie And thus farre as concerning those things wherein the Ecclesiasticall Laws are hindered by the Temporall in their proceedings contrary to Law Statute and custome anciently observed which was the third part of my generall division Now it followeth that I shew wherein the Ecclesiasticall Law may be relieved and so both the Lawes know their owne bounds and not one to over-beare the other as they doe at this day to the great vexation of the subject and the intolerable confusion of them both which is the last part of this Treatise PART IV. CHAP. I. SECT 1. The meanes how to relieve the Civill Law that they are of two sorts that two things are required to the first meane and that the former of these is the right interpretation of Lawes and what that is THe meanes therefore to relieve the profession of the Civile Law are two The first is by the restoring of those things which have beene powerfully by the Common-Law taken from them and the bringing of them backe againe unto their old and wonted course The other is by allowing them the practise of such things as are grievances in the Common-wealth and fit to be reformed by some Court but yet are by no home-Law provided for The first of these stands in two things whereof the one is the right interpretation of the Lawes Statutes and customes which are written and devised in the behalfe of the Ecclesiasticall Law The other consisteth in the correcting and supplying of such Lawes and Statutes that are either superfluous or defective in the penning made in the behalfe as it is pretended of the Ecclesiasticall profession but yet by reason of the unperfect pe 〈…〉 g thereof are construed for the most part against them The right interpretation of the Law Statutes and Customes pertaining to the practise standeth as is pretended in the Judges mouth who notwithstanding hath that authoritie from the Soveraigne and that not to judge according as him best liketh but according as the right of the cause doth require The supply or