make Enuches themselues be made Enuches if they escape aliue their goods to be forfeited to the Exchequer and themselues be imprisoned all the dayes of their life Such as by force steale away women themselues such as are their abbetters and helpers are to dye therefore and that it shall not be lawfull for her that is carried away to marrie to him that doeth carrie her away and that if her father do giue his consent to such marriage he is to be banished but if she marry him without her fathers consent then is she not to take benefit by her fathers will or any other thing that is her fathers These and sundry matters of great importance and necessarie for the well gouerning of a Common wealth are conteyned in the Authenticks which I passe ouer with drie foote not because they are not necessarie to bée knowen but because I would not cloy the Reader euen with those things which are good All these workes are the labour of Iustinian as either gathered together by him out of auncient Lawyers bookes and such Emperors decrées as went before him or else were decréed ordeyned by himselfe as matter occasion offered it selfe the yongest of them is néere eleuen hundred yeares of age that is within 500. yeres after Christ or not much otherwise The last Tome of the Ciuill Law is the Feudes that is the bookes of Customes Seruices that the subiect or vassall doth to his Prince or Lord for such lands or fées as he holdeth of him This péece of the Law although it was not much in vse in the old Emperors dayes yet Iustinian himselfe séemeth to acknowledge them in his Nouell constitutions calling them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and those which are more carefull to séek out the beginning of them bring them some from the auncient Clientles or retinewes the ancient Romans before Christ his time had as Budeus doth some other from Alexander Seuerus time who as Lampridius in the life of Alexander saith gaue such lands as he won out of the Enemies hands to his Lords Marchers and his souldiors that they should be theirs their heires for euer so they would be Souldiers neyther should they come at any time to the hands of any priuat man saying they would more lustily serue if they fought for their owne land which opinion commeth next to the auncient border-grounds of the Romans whereof there is a Title in the 11. Booke of the Code Defundis Limitrophis that is of Border-ground Others refer it ouer to Constantine the greats time which inacted for the benefit of his souldiors that such Lordships lands as before time they had their wages out of should passe ouer vnto their heires and be appropriated to their familie or stocke so that they found and mainteyned continually a certaine number of souldiors From whence soeuer it descended this is certaine that it came verie late to be a particuler volume of the Law it selfe The compilers or gatherers together thereof were Obertus de Horto and Giraldus Compagist two Senators of Millaine who partly out of the Ciuill Law and partly out of the Customes of Millaine drew the same but without forme or order The word it selfe is a barbarous word but had his origen notwithstanding as Isidor saith from the word Foedus being a good Latin word and so is to be interpreted tanquam Feodum that is as a thing couenanted betwéene two Others deduce it from the word Fides as it were in Latin Fideum and by a more pleasant pronunciation Feudum whereupon such as are Feudataries to other are called in Latin Fideles because they owe fayth and allegeance to such whose feudataries they are who in the Lomhard tongue are called Vassals Beside Fealtie which some call Hominium by the Feudists is tearmed Homage for the nature of a Feude is this that it draweth with it fayth and homage so that such as are feudataries or fee men professe themselues to owe fayth to such to whom they are in fée and that they are his men insomuch as when a fée man dyeth his Heyre doth make fayth and doth his homage to the Lord as is well séene both in the Lord Spirituall and Temporall of this land who both in their creation and also in theyr succession one after an other sweare an oath doe their homage to their Soueraigne and doe pay other dueties which are simbols and signes of their subiection to their soueraigne And for others that are vnder the degrée of Barons and yet are fée men vnto the King and so do not manuell obedience vnto his Maiestie they pay yearely something in respect of theyr homage according to the quantitie or qualitie of the fée or tenure they hold of the Prince A Feude in English may be called a tenure which caused Littleton when he treated of Feudes so far forth as they are here in vse in England Such as are all those which are called in Latin Feuda militaria Feuda scutiferorum called by Iustinian 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which are by the Lawes of the land tearmed by the named of knights seruices and Escuage to call them by the names of Tenures A Feude is a grant of lands honors or fées made either to a man at the will of the Lord or Soueraigne or for the Feudataries owne life or to him or his heires for euer vnder condition that he and his heires in case where the feude is perpetuall doe acknowledge the gyuer and his heyres to be their Lord and Soueraigne and shall beare faith and alleageance vnto him and his for the said Tenure and shall doe such seruice to him and his for the same as is betwéene them couenanted or is proper to the nature of the feude Of Feudes some are Temporall some other are Perpetuall Temporall feudes are those that are gyuen eyther for terme of a mans life or for yeares or at the will of the Lord for some seruice done or to be done such as are Annuities giuen to Lawyers for counsell Pensions giuen to Phisitions for their aduise Stipends to any Teacher of artes and sciences Fées for kéeping of Towers or Castles called by Feudists Castalia and is by Littleton called Castle ward although by him it is taken for a state of inheritance Perpetuall Feudes are rights which men haue by grant from the Soueraigne or chiefe Lord of the soyle or territorie to haue hold vse occupie and inioy honors manors lands tenements or hereditaments to him and his heires for euer vpon condition that the said vassall or partie his heytes and successors doe homage and fealtie to his Lord his heires and successors for such honors landes or hereditaments and doe him eyther seruice in warre according as it is couenanted betwéene the Lord and his vassall or such other seruice as the nature of his tenure doth require or if he fayle therein shall either find some other in his roome to do the same or else pay a certaine summe of
from their lawful defence how persons of common trust as Marriners Inholders and such like are bound by Lawe to restore such things as they haue taken in charge to kéepe The second parte being distributed into viij bookes yéeldeth matter of Iudgement as who may be Iudge and who not where and before what Iudge euery one is to be conuented how many kindes of Iudgement there are Ciuile Criminall and mixt of both by what actions things that are ours by right of inheritance may be chalenged whether they be corporall or incorporall what action the Lawe affordes if any man conceale that is ours that we may come to the sight thereof what action lyeth against him who by euill persuasions or leude inticement hath corrupted another mans seruant or hauing run away by his ill counsell hath concealed him from his master what prouision the Lawe hath against Dice-play and such as kéepe Dicing houses how he is to be punished which being put in trust to measure any mans ground makes a false report of the measure thereof that no man hinder a corse of a dead bodie to be carried to buriall or to be buried in such places as he and his predecessors haue right vnto or to build a Tombe to that purpose and beautifie the same The third part imbracing xij bookes concerneth personall actions which rise not of cause of right or possession but of couenant and obligation as things credited or lent in a certaine summe the meanes how to recouer the same if it be denied that is by oath of the partie that denieth it vnlesse hee may bee conuicted either by witnesse or instrument that hee hath forsworne himselfe how many kinds of oaths there are voluntarie out of Iudgement necessarie exacted by the Iudge in doubtfull cases where otherwise there wanteth proofe to manifest the trueth Iudiciall such as one partie offereth to another in Iudgemēt and cannot be refused without iust cause and lastly that which the Iudge offereth to the plaintife as concerning the value of the thing which is in strife or the charges that he hath bin at in recouering of the same what exceptions there lyes against Obligations as that which for cause was giuen and cause did not follow that the cause was dishonest for which that is challenged that was giuen that the summe was not due which was paid and therefore not to be exacted but to be repaid actions for things lent for a certaine time and to a certaine vse actions for things pawned actions that either passengers haue against Mariners for the goods or ware that they haue brought into the ship or Mariners haue against Passengers for their fraught actions of eiectment wherein the passengers and Mariners are bound each to other for contribution of the losses of such things that haue béene cast into the sea in the time of a storme or tempest according to the qualitie and quantitie of the goods they haue in the ship actions whereby masters are bound to answere for their seruants contracts and fathers for their childrens in such things or negotiation as they haue put them in trust withall sauing where the child boroweth money without his fathers priuitie for riot and for such purpose as his father hath no vse thereof Remedies for women when by weaknesse of their sexes and lack of councell they haue inwrapt themselues in suertiship for other men action of compensation where a debt is demaunded for which an equiualent portion hath béene receiued in lieu or satisfaction thereof actions of mandate or commaundement wherein one hath done some worke or laid out some money vpon an other mans mandate or word and yet when hée requireth allowance thereof it is denied him actions of societie or fellowship wherein either the societie is required to bee maintained and the money put in common banck to be diuided actions of bargaine and sale either pure or conditionall the bargaine being once made the losse and gaine that after happeneth is the buyers vnlesse the seller retain some further right in the thing sold vnto himselfe actions of letting or setting either of the vse of a person or the vse of a thing vpon a certaine hyer actions of change and such like The fourth part being digested into eight bookes ministreth actions for such things as are accessarie to contracts such as pawnes and pledges are which are giuen for the better securitie of the contract actions for restitution wherin a man hath béene deceiued in a bargaine more then the halfe value of the thing sold or wherein the seller hath concealed some fault in the thing sold which he ought by Law to haue reuealed or promised some qualitie in the same which was not in it or where the thing sold hath béene euicted by an other out of the hands of the buyer himselfe vsing all iust defence of Law for himselfe actions for interest and vsurie and how many kinds thereof there bée that men vse by land lucratorie compensatorie and punitorie whereof the first is altogether vnlawfull the other two allowed where either iust gain ceaseth or iust losse followeth vpon that occasion that which is lent is not paide according to the day of couenant Sea vsurie otherwise called nautick vsurie is greater then land vsurie and yet allowed by Law for that the seafaring man takes vpon himselfe the daunger of the transporting thereof and securing the same at such place as it is appointed to be deliuered In deciding of matters of controuersie the Law procéeds sometimes by witnesses sometimes by instruments sometimes by presumptions where knowledge or ignorance of fact or Law is presumed Spousals are mutuall promises of a future marriage marriage is a lawfull coopling together of man and woman the companie and societie of the whole life the Communion of all Diuine and humane rites and things and of one and the same house wrought by the consent and mutuall good will of the one towards the other in espousals and marriages is to bée considered who is to bee ioyned together at what yeares and by whose consent there doth wayte and attend vpon Marriages Ioyntures Dowries and such like and sometimes Diuorse which is so called of the diuersitie of the mindes of those that are married because such as are diuorsed goe one a diuerse way from the other The causes whereupon Diuorces growe are Adultery deadly hatred one toward another intollerable crueltie néerenesse of kindred and affinitie in degrées forbidden impotencie on the one side or the other actions of Dowrie after diuorce or seperation actions against a mans wife imbeaselling away his goodes actions against a husband disclayming his owne childe and his wife being with child if he make doubt therof meanes how and where she shall be kept vntill her deliuery so that no false birth shall be put in place of the true childe or that she abuse not her husband or the next heire with a false shewe of that which is not Tutelage and gouernment of children vnderage which is either
health or that they are so wounded that they can neither serue in war any longer nor longer indure study which are so to bee vnderstood that they yeeld excuse from Personall Seruices onely and not from Prediall Those things that yéeld excuse in part from Personall seruices are these the Renting of the Princes custome the basenes of the persons state not fit to beare any Office of credit infamie banishment an amotion from a mans place and degrée feminine sex which are to vndergoe such Offices only as are agréeable to their sex Imbassages imposed vpon any by the Prince and his Councell which hath immunitie also of two yeares after their returne if the Imbassage were into places becond the sea or into any far country not if it were into any Country néere at hand Skill in any Manuel Arte or Mysteries to the intent that they may haue both time to learne their Arts and so become the Skilfuller in the same and also haue more alacritie to teach others in their Misterie That that care be had that such are chosen to office that they be of the worthier sort for their vertue and place and the richest for their state that no man be chosen to office for enuie and if any be and the same be proued he that did chuse him thereto is to be fined and to pay the expences of the suite vnlesse he which is chosen die within short time after the choise then his successors are not bound thereto Further men are excused if being in one Office they are chosen vnto another to the intent they may the better execute and performe that office they haue in hand Such as are remembrancers which make Bookes of what is due to the Exchequer and what is brought in Auditors Receiuers Tellers Granarers Weighers such as weigh try such gold as is brought and paid into the Exchequer Collectors that is such as gather vp the gold that is due in the Prouinces to the Exchequer and send the same ouer into the Exchequer who are in no case to hold the same longer in their hands than the Law alloweth them much lesse to turne the same to their owne vse without great offence to the Prince and common wealth the like is for Crowne gold that is of such gold that is put in Crownes and offered to the Prince vpon any publicke gratulation or any exploite that hath béene happily atchieued Iustices of Peace which are distributed by countries for the more quiet and peaceable gouernment of the same whose care was to séeke out théeues and malefactors and to foresée that the Country people did make no mutinie by reason of the Taxes and Subsidies that were leuied vpon them that for gold there might bee paid siluer and againe siluer for gold into the Exchequer so that the value thereof were made equall Vsurers although they haue no possessions yet they are no lesse bound to all patrimoniall or predial charges than if themselues had Lands and Hereditaments although for their infamie they are excluded from all personal charges that are of credit The Eleuenth Booke procéedeth in the enumeration of other vocations that are exempted from personall seruices of the common wealth besides those that haue bin named in the tenth Booke as masters of ships and Mariners which serued to bring in any Marchandise or prouision for the Princes houshold out of forreine Countries into the Princes storehouse yea although they were priuat mens ships which were imployed to that seruice so that if a priuat mans ship were laden with any publicke prouision there could not any other priuat burthen bee imposed vpon him for that if the ship perish by shipwrack by reason of the priuat burthen that is put therein aboue the publicke charge then hee is to answere the losse thereof vnto the Exchequer otherwise than in the case of priuat men who are themselues to beare the losse of those things which are exported or imported neither can they make gaine of priuat mens shipwracke or of those things which are cast out into the sea to ease the lading of the ship but are bound to restore it to the owner vnder paine of confiscation of their goods by the Temporall Law and excommunication of their persons by the Ecclesiasticall Magistrate Adde to this Miners or Metallers and the gouernours of the same gatherers of Muskels and other like shell fish with whose bloud either Purple is made or out of which Pearles are taken which colour Princes onely might vse as also veluet and cloth of gold neither was it lawfull for any man vnder the degrée of the Prince to weare the same sauing onely women in some sort for that such ornaments are fitter for women than men Ioyne to these Monetaries which serued to coyne money Wainemen or Carmen which with their owne cattell carried or conueyed things which belonged to the Princes Treasurie The like priuiledge had they which made Armour for the Princes Armorie as Speares Brest plates Darts and such like or made Bridles Girdles studded with pearle or pretious stone vnto the Court for the Kings houshold who onely were allowed to weare the same Such as had the care and gouernment of any Corporations as the Princes Bakers Vintners Papersellers Money-changers professors of Liberall Sciences specially in Rome and Constantinople which after the seate of the Empire was translated thither had all the priuiledges of old Rome sauing the Ecclesiastical primacie for which notwithstanding there was long dissention betwéene the two cities Next after Rome and Constantinople Beritus the chiefe Citie of Syria had great priuiledges for the famous Vniuersitie which was in the same and such Prouinces or Countries as serued the same or any of them with yearely prouision of Corne Oyle Béefe Mutton Porke and such other like victuall which prouision was to bee distributed among the poore and impotent of the Cities and not to bee giuen to stout and valiant beggers which are able to get their liuing with their owne handes and therefore were to bee compelled to worke The Aldermen or Gouernours of Cities for that they are imployed in matters of greater seruices yet none of them were to be called to any office before he had bin euen with the common wealth if happily any of them were in debt to it neither were they or any of them excused more than from personal seruices but in predial dueties they paid euery one according to his rate But as for Enterlud-plaiers and houses of baudery they had no exemption at all but paid double charges to the rest Of Husbandmen some are seruants as Copiholders others are frée as Fréeholders which notwithstanding themselues are as it were bound vnto the soyle and are rated in the Subsidie according to their Acres and if they haue no Land then according to the head or number of their houshold which notwithstanding at this day is taken away and these as well pay rent to the owners of the ground wherein notwithstanding the Land-lord cannot exact
of them or charge them aboue that which hath bin couenanted betwéene them as Tribute and Head-siluer to the common wealth for the declining of which and auoiding of necessarie seruices of the common wealth as no man can put himselfe vnder the patronage of any Noble man so also they cannot bee called from this seruice of the common wealth to any other Country men such as were addicted to the ground they tilled although the ground were their owne yet could they not sell it to any man but to him that was of the mother village wherein himselfe was A Mother village was that whence all the villages round about were deriued Although all such husbandmen as dwell in any village are to pay Subsidie for such goods as they possesse or such Lands as they hold yet one neighbour is not to be disquieted or arrested for another mans due for that it is a thing vnlawfull to trouble one for another or not to cesse men indifferently according to the value of their Lands and the worth of their goods And therefore the Romanes in rating of matters of taxes had first Cessers which rated men according to that which they thought their state to be then had they Leuellers or Surueyors which consired the rate set downe mended it and made it euen easing such persons or grounds as were ouer-rated and charging more déeply such others as were ouerlightly taxed procuring such grounds as were wast and barren should be brought to tyllage and that the barren should be ioyned with the fruitfull that by such meanes the Prince might receiue subsidy out of both March grounds such as lie in the bounds of any kingdome serue for the maintenance of such garrisons as are there placed for the defence of the Marches and such as hold the said lands are to pay an yéerely prouision or pension for the same as also the Princes pastures woodes and forrests which are let out vpon a certaine yéerely rent eyther for a certaine time or in fée farme for euer which in respect they pay an ordinary payment to the Prince eyther in money or in prouision are discharged from all other ordinary extraordinary burthens Publike things are those which appertaine to the Exchequer or to the Church which may in like sort be rented out for a season or for euer as the possession of the Exchequer may so it be done to the certaine benefit of the Church and vnder such solemnities as in this case are required otherwise it cannot be let out but for 30. yeares or for thrée liues Fée farme is when lands and tenements or other hereditaments are let out for euer vnder a certaine yearely rent in reknowledgement of the soueraigntie thereof belonging still to the first Lord whereby both the right and possession passeth to the farmer in fée The third and last of these Bookes treateth of the honors that the Exchequer giueth of which the first and chiefest was the Pretorship which anciently was a great dignitie but after became an idle name only a burthen to the Senators as in which at their owne charges they were to set out playes and shewes and gaue vnto the Emperor in consideration of his or their glebe land a certaine quantitie of gold called Aurum glebale or if they had no glebe land then offered they to the Emperor an other péece of gold called Follis aurea both which afterward were taken away Next was the Consulship which was not to be sought by ambition or by scatering money among the people but by cléere suffrages and desert After the Consulship came in place the Constable or Master of the Soldiors and those which were called Patricij for that their fathers had bin Senators whose place vnder Augustus was equall to the Consuls although they were in no office and function of the Common wealth the other is not so much an administration as a dignitie as the Senatorship aunciently was into the which who that were admitted were accompted as Parents to the Prince and Fathers to their Countrey Fourthly in place were the Princes Chamberlaines who were adorned with sundry priuiledges and had the title of honor Fiftly followed the Treasurer who was Master of all the receits and treasure of the Prince publike or priuat of all such officers as were vnderneath him Then the Prenotarie chiefe notarie or scribe of the Court who for that he had the preheminence aboue all the Gentlemen of the papers whom we now call Secretaries was called Primicerius of the Gréek word _____ which signifieth waxe which is interpreted a waxed Table in which aunciently they did write After him that was first secretary there was an other called second Secretary and so after other Clerks of the Counsell who were not all in one degree but some were first some were second and so in order as their person place and time did require Ouer which was the Master of the Rols who now is called Chauncellor and such as are of the Princes priuie Counsell or assessors of his priuie consistory wherin he heareth ambassages and debateth of the greatest affaires of the state and other waightie matters The President or Tribune of the Scholes where young men were trayned vp to feates of armes The Martials or Presidents of Militarie affaires the Phisitions of the Princes bodie Constantine in olde time honored with the title of Earles as he did the rest of his chiefe officers but now they are without the dignitie of that title The Earles of the Countries who gouerned the prouinces or shires wherof they were Earles Professors of Law other sciences twentie yeares together deserued by the law to be made Erles The Porters of the Court and the Princes watch which watched nightly for the defence of his body the gard or protectors of the Princes body their Captaine among which were chiefe the Standerd bearers as in whom the Prince reposed most trust and vsed them chiefly in all matters of danger Next vnto the Chauncellor or Master of the Rolls were the Clerks and others that serued in the Rolles in which the decrees and rescripts of the Prince the Supplications of the subiect the orders therupon set down are recorded laid vp kept as the rols of Remembrances of Epistles libels ordinances gifts giuen by the Prince and such like besides such as serue the Prince not in matters of learning or war or the pen or other like places aboue named but in actions of the common wealth and in publicke offices eyther of peace or war and their Presidents or gouernors among whom are Postmasters to whom the care of the publike course doth appertein the Tresurer of the chamber who hath the keeping of the priuie purse and such things as come to the Prince by the way of gift The Master of the horse his Queries and riders the yeoman of the Styrop and the Princes footemen The Castillians or officers of the houshold which were part of the Princes family appointed for
Iustices of Peace or other officers to that purpose appointed speedily dispatch the businesse of those which are of their Iurisdiction that such as come as strangers and forrainers out of other contries hauing no iust cause of their comming they send backe againe with their substance to such places as they came fro but if they be idle vagabonds and Rogues or other like valiant beggers they either driue them out of the place or compell them to labour yet euermore hauing regard to prouide for such as are honest poore old sick or impotent That Clerkes bee first conuented before their Ordinarie and that the Ordinarie do speedily end the matter that they may not be long absent from their benefices and that they be not drawne before temporall Iudges vnlesse the nature of the cause doe so require it as that it be a méere Ciuile cause or a criminal cause belonging wholy to the Temporal court wherein if a Clerke shall bee found guiltie he shall first bee depriued from his ministerie and then shall bee deliuered ouer into the Seculer hands but if the crime bee solely Ecclesiasticall the Bishop alone shall take knowledge thereof and punish it according as the Canons doe require That where one dieth without issue leauing behind him brethren of the whole bloud and brethren of the halfe bloud the brethren of the whole bloud haue the preheminence in the lands and goods of the deceased before the brethren of the halfe bloud whether they be of the fathers side or the mothers side That no man make Armour or sell it without the princes leaue vnlesse they bee kniues or other such like small weapons That proofe by witnesses was deuised to that end that the truth should not be concealed and yet all are not fit to be witnesses but such alone as are of honest name and fame and are without all supition of loue hatred or corruption and that their dispositions bee put in writing that after the witnesses bee published and their depositions bee knowne there bee no more production of witnesses vnlesse the partie sweare those proofes came a new vnto his knowledge If Parents giue profusely to one of their children the other notwithstanding shall haue their lawfull porcions vnlesse they be proued to be vnkinde towards their parents That women albeit they be debtors or creditors may be Tutors or Curators to their children and that there is not an oath to be exacted of them that they wil not marrie again so that they renounce their priuiledge graunted vnto them per Senatus consultū Velleian̄ and performe al other things as other Tutors doe That Gouernours of Prouinces are not to leaue their charges before they are called from thence by the Prince otherwise they incurre the danger of Treason That womens Dowries haue a priuiledge before all other kinds of debt that what Dowrie a woman had in her first marriage she shall haue the same in her second marriage neither shall it be lawfull for her father to diminish it if it return againe vnto his hand That a man shal not haue the propertie of his wiues dowrie neither a woman the propertie of that which is giuen her before marriage but the propertie of either of them shal come vnto their children yea though they marrie not againe Wils or Testaments made in the behoofe of children stand good howsoeuer imperfect otherwise they are but they are not auaileable for strāgers but strangers are they which are not children neither mattereth it whether the Will or Testament be writ by the fathers hand only or by some other body by his appointment as the father deuideth the goods among the children so they are to haue their parts Of Hereticks and that such are Hereticks which do refuse to receiue the holy Communion at the ministers hand in the Catholick Church that Hereticks are not to be admitted to roomes and places of Honor and that women Hereticks may not haue such priuiledge as other women haue in their Dowries That is called Mariners vsury that is wont to be lent to Mariners or Marchant men specially such as trade by sea which kind of lending the law calleth passage money in which kind of vsury a man cannot go beyond the 100. part That Churches inioy a 100. yards prescription That such things as are litigious during the controuersie are not to be sold away A Litigious thing is that whih is in suite betwéene the plaintife and defendant That while the suite dependeth there bee no Letters or Edict procured from the Prince concerning the cause in question but that the cause be decided according to the generall Lawes in vse That in Diuorces the children be brought vp with the innocent partie but at the charges of the nocent and that Diuorces bee not admitted but vpon causes in Law expressed That no woman whose husband is in warfare or otherwise absent shall marry againe before she haue certaine intelligence of the death of her former husband either from the Captaine vnder whom he serued or from the gouernour of the place where he died and if any woman marrie againe without such certain intelligence how long soeuer otherwise her husband be absent from her both she and he who married her shall be punished as adulterers and if her former husband after such marriage retorne back againe she shall returne againe to her former husband if hee will receiue her otherwise she shall liue apart from them both If any man beat his wife for any other cause than for which he may be iustly seuered or diuorced from her hee shall for such iniurie be punished If any man conceiue a iealousie against his wife as that she vseth any other man more familiarly then is méete shee should let him thrée seuerall times admonish him thereof before thrée honest and substanciall men and if after such admonition he be found to commune with her let him be accused of adultery before such Iudge who hath authoritie to correct such offences The ninth and last Collation containeth 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 discendent then the ascendent be preferred before the collaterall vnlesse they be brethren or sisters of the whole blood who are to succéed together with the ascendent but in ascendents those are first called which are in the next degrée to the deceased then after those which are in a more remote degrée that in collaterals all be equally admitted which are in the same degrée 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 vnlesse it be to the Princes house or to or with an other like Religious place and that in equall goodnesse quantitie or that it be for the redemption of Prysoners and that they be not let out to any priuat
money in liew thereof Although this Tenure by the first creation thereof be perpetuall yet that the soueraignty thereof should not still remaine vnprofitable to the first Lord the whole benefyt thereof going continually to the vassall or tenant it is prouided that the Soueraigne or chiefe Lord the first yeare the heyre or Successor of the vassall comes vnto his land shall haue the whole reuenue of his liuelihood for that yeare or a certeine summe of money in token of the retorne thereof vnto the Lord and the redemption thereof made againe by the tenant which by the Law of the Nouels is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is well nigh the same that we call liuery which euery heire that holdeth in Knights seruice sueth out before he take possession of his land as heire to his ancesters This Tenure is got eyther by Inuestiture or by Succession Inuestiture is the same that we call Creation and is the primier grant of a feude or tenure to any with al rights and solemnities thereto belonging wherein the homager or feodatarie for the most part vpon his knées promiseth faith and allegeance vnder a solemne oath vnto his Lord and his successors Succession is whereby the eldest sonne succéedeth the father in his inheritance and if he faile and haue no issue then the next brother and so in order successiuely and if there be no sonne then the next heire male and if their bée no heyre male then the land escheats vnto the Lord. For the Lumbards from whom the feudes first came or at the least were chiefly deriued from them directing all their policie as the Lacedemons did to matters of warre had no seminine feudes among them but after by processe of time there were created aswell Feminine feuds as Masculine feuds insomuch as where there was no issue male to put them from it women did succéed in the inheritance Of Feuds some are regall some not regall Regall are those which are giuen by the prince only neither doe belong to any inferior to giue Of these some are Ecclesiasticall as Archbishopricks Bishopricks and such like Others are Ciuile or Temporall as Dukedomes Earledomes Vicounts and Lords who by that are distinguished from the rest of the people that they haue the conducting of the Princes Armie at home and abroad if they be thereto appointed and haue right of Peeres in making of Lawes in matters of triall and such other like businesses Not Regall are those which hold not immediatly of the Prince but are holden of such Ecclesiasticall or Ciuile States which haue had their Honours immediatly from the Prince Besides of Feuds some are Liege others not Liege Liege Feuds are they in the which the vassall or feodatorie promiseth absolute fealtie or faith to his Lord against all men without exception of the King himselfe or any other more auncient Lord to whom besids he oweth alleagance or seruice Of this sort there is none in this Realme of England but such as are made to the King himselfe as appeareth by Littleton in the title of Homage wherein is specially excepted the faith which the Homager oweth to his Lord the King Feuds not Liege are such wherin Homage is done with speciall reseruation of his faith and alleageance to the prince and Soueraigne Of such as are Vassals or Liege men some are called Valuasores maiores others Valuasores minores Valuasores maiores are such as hold great places of the State vnder the Emperour or King as are the degrées of Honour before named and are called Péeres of the Land which only giues Nobilitie Valuasores minores are those which are no Péers of the Land and yet haue a preheminence aboue the people and are as it were in a middle Region betwéene the people and the Nobilitie such as are Knights Squires and Gentlemen The Feuds are lost by sundry waies by default of issue of him to whom it was first giuen which they call Apertura feodi by surrender therof which by them is termed Refutatio feodi by forfaiture and that was in two sorts either by not doing the seruice that his tenure did require or by committing some villenous act against his Lord as in conspiring his Soueraignes death defiling his bed or deflowring his daughter or some other like act treacherous to his Lord and vnworthy of himselfe And so much of the Ciuile Law and the Bookes thereunto pertaining Now it followeth I doe in like order speake of the Canon Law which is more hardly thought vpon among the people for that the subiect thereof in many points is of many grosse and superstitious matters vsed in the time of Papistrie as of the Masse and such other like trumperie and yet there are in it beside many things of great wisdome and euen those matters of superstition themselues being in a generalitie well applyed to the true seruice of God may haue a good vse and vnderstanding The Canon Law hath his name of the Gréeke word Canon which in English is a Rule because it leads a man straight neither drawes him to the one side or the other but rather correcteth that which is out of Leuill and Lyne The Canon Law consisteth partly of certaine Rules taken out of the holy Scripture partly of the writings of the auncient fathers of the Church partly of the ordinances of general prouincial Councels partly of the Decrees of Popes of formerages Of the Canon Law there are two principall parts the Decrées and the Decretals The Decrées are Ecclesiasticall constitutions made by the Pope and Cardinals at no mans suite and are either Rules taken out of the Scripture or Sentences out of the auncient Fathers or Decrées of Councels The Decrees were first gathered together by Ivo Bishop of Carnat about the yeare of our Lord God but afterward polished and perfected by Gratian a monke of the order of Saint Bennets in the yeare 1149. and allowed by Eugenius the Pope whose Confessor hee was to bee read in Schooles and to bee alledged for Law Of all the seuerall volumes of the Canon Law the Decrées are the auncientest as hauing their beginning from the time of Constantine the great the first Christian Emperour of Rome who first gaue leaue to the Christians fréely to assemble themselues together and to make wholsome lawes for the well gouernment of the Church The Decrées are diuided into thrée parts wherof the first teacheth of the origen and beginning of the Canon law and describeth and setteth out the rights dignities degrées of ecclesiasticall persons and the manner of their elections ordinations and offices and standeth of one hundred and ten distinctions The second part setteth out the causes questions and answeres of this Law which are in number 36. and are full of great varietie wisdom and delight The third and last part containeth matter of consecration of all sacred things as of Churches bread and wine in the Sacrament what daies and Feasts the Primitiue Church vsed for the receiuing thereof of
ought to be od in number that if they disagrée that which is concluded by the greater part may preuaile An arbiterment is a power giuen by the parties Litigant to some to heare and determine some matter in suite betwéene them to pronounce vpon the same to which they are to bind themselues vnder a penaltie to stand The first Booke hauing set out the first obiect of the Law which standeth in the persons who make vp the Iudgemēt as in the person of the Iudge himselfe the Aduocats Proctors and Clients there followeth in the second booke the second obiect of the same which is the Iudgemēts themselues which are to be commenced by a Citation that in a competent court fit for the same by a Libell offered vp in the court by the plaintife to the Iudge which is to containe the sum of that which is required in Iudgemēt where if the defendant do againe reconuent the plaintife he is to answere albeit the defendant be not of that Iurisdiction the libel being admitted the defendant is to ioyne issue and yet before either of them enter any further into the cause that there may be faire and sincere dealing in the same that all suspition of malitious dealing therin may be taken away each of them are to take an oath the Plaintife that hee doth not of any malice prosecute the suite against the Defendant or the Defendant of any malice maintain the suit against the plaintife but that they verily beléeue their cause is good and that they hope they shall be able to prooue the one his libell the other his exceptions if he shall put in any into the Court. The cause being begun delaies are often graunted if either there come any Holyday betwéene or any other like iust cause bee offered as for producing of witnesses and such like If there be no iust cause of delay then the Iudge is to goe on in the due course of Law prouided alwaies that more bee not demaunded by the plaintife than is due and that the cause possessarie bee handled before the petitorie and that hee that is spoiled bee first and before all things restored to that thing or place whereof he was spoyled or from which he was put fro yea though he haue nothing els to alledge for himselfe beside the bare spoliation it selfe If the one side or other wilfully or deceiptfully decline Iudgement the Iudge is to put the other in possession of that which is in demaund or at the lest to sequester the fruits and possessions of that which is in controuersie but if both parties appeare and ioyne issue affirmatiuely then is it but a question of Law and not a fact neither doth there remaine ought els to bee done by the Iudge but that hee giue sentence against him that hath confessed it and put his sentence in execucion But if issue be ioyned negatiuely then is the plaintife to proue his Libell so far as it consists in fact by witnesses which are to be compelled by Law if they will not come or appeare voluntarily by publicke and priuat instruments by presumptions by coniectures by oath which being done the Defendant in like sort is to bee admitted to proue his exceptions and cleere his prescription if hee bee able to alledge any in which hee is Plaintife neither is hee bound thereto before the Plaintife haue perfected and prooued his owne right After proofes are brought on either side and the same thoroughly disputed on by the Aduocats the Iudge is to giue sentence which he is to frame according to the Libell and proofes formerly deduced in the cause The sentence being giuen Execution is to bee awarded vnlesse there be an appeale made from it within ten daies by the Law but fiftéene daies by the Statute of this Land from the time the partie against whom sentence was giuen had knowledge thereof or vnlesse it be appealed incontinently at the acts and in writing before a publike notary or at the lest the partie against whom the sentence proceeded within due time take his iourney toward the higher Iudge to prosecute the same by whom the former sentence is eyther confirmed or infirmed in the second instance The third booke conteyneth such Ciuile matters and causes as are liable to the Ecclesiasticall Courts as the honest life or conuersation of Clerks and theyr comely comportment in all their demeanor with what women they are to cohabit and dwell with whereby they may be frée from all suspition of ill life and with whom not which of them may be maried by the law of the Canons and which not in what cases they may be allowed to be non resident and in what not and how such as are non residents may be called home vnto their cure and if they retorne not vpon processe sent out against them how they are to be punished namely by depriuation or sequestration of the fruits and commodities of their benefice Prebends and dignities are preferments for Clerkes but not for such as are idle or absent from the same without iust cause but if any Clerk or Minister be sicke and his disease be curable he is to receiue the benefit of his prebend or dignitie in his absence as though he were present but if it be contagious or vncurable then is he to be put from the exercise of his office and a helper or coadiutor to be ioyned vnto him and they both to be mayntained of his stipend Prebends or dignities are to be got by institution which are to be giuen by the Bishop or his Chauncelor or such other as haue Episcopall iurisdiction without which neither any benefice is lawfully gotten or can lawfully be reteyned Benefices not void ought neyther to be granted neyther to be promised but such as are void ought to be granted wythin sixe monthes after knowledge of the voydance thereof otherwise the grant of them diuolueth commeth vnto the superiour he that causeth himselfe to be instituted into a benefice the Incumbent therof being aliue himselfe is to be deposed from his orders While any Benefice or Bishopricke is void nothing is to be changed or innouated in it and such gifts sales or changes of Ecclesiastical things as are made by the Bishop or any other like Prelate wythout the consent of the Chapiter are void in Law and such Benefices as do become void are to be bestowed without any impayring or diminution of the same In what case the goods and possessions of the Church may be alienated and in what not and that such things as are alienated be alienated by the greater part of the Chapiter otherwise the alienation is void What goods of the Church may be lent what sold what bought what changed what demised or let to lease what Morgaged or let to pawne After these follow Tractats of last Wils and Testaments of succession by way of Intestate of Burials of Tythes first Fruits and Offerings Of Monkes and their state in sundry sorts of the
titul C. de quadrienni◠prescript l. bene for albeit the propertie of things may bee got by many meanes as wel by the law Ciuile as by the law of Nations yet is it not a thing so easie to bee proued for that there must concur many things to the proofe of a propertie otherwise you shall faile in your suit as in a case of bargaine and saile that there was such a contract betwéene the buyer and the seller that there was either money paid for it or that he that sold it was content to take the buyers word for it that deliuerie was made thereof otherwise the C. de acquirend possess l. 1. ext c. 1. de consuetudin propertie passeth not but only in some few cases in which neither possession nor deliuerie is required Lastly that hee which sold it was rightfull owner of it otherwise can he not passe ouer a thing he had no right vnto The Lordship or propertie of things is bipartite for either it is direct or full such as men haue when they haue not only the thing it selfe whereof they are Lords or Proprietaries but also the vse and commoditie therof or els it is profitable as is the hold of Tenants and Farmers who haue the vse gaine and possession of the thing but the Lord the propertie and rent in acknowledgement of his right and Soueraigntie The Possessorie is that right wherby the vse or possession of a thing is claimed of which there be thrée sorts for it is either in getting of the possession of that a man hath not or in kéeping of the possession of that a man hath or in recouering and regaining of the possession of that which is lost The procéeding in all these Ciuile matters is by Libell concluding to the action the partie agent giuing caution to prosecute the suite and to pay what shall be iudged against him if he faile in the suite the Defendant on the contraris part securing his aduersarie by sufficient suertie or other caution as shall séeme méete for the present to the Iudge that he will appeare in Iudgement and will pay that which shall be adiudged against him and that hee will ratifie and allow all that his Proctor shall doe in his name for to all these ends satisdation in Iudgement is which is nothing els but a course to secure the aduersarie of that which is in debate before the Iudge that on what side soeuer the cause shal haue an end the clyents may bee sure to get that which by law shall be adiudged vnto them And so much of those matters wherof the Ciuile law here in England vsually holdeth plée Now of the Criminall matters which belong to that Court but yet by way of Commission from the prince and that is that horrible crime of Pyracie detested of God and man the actors wherein Tully Cicer. 3. lib. off calleth Enemies to al and to whom neither faith nor oath is to be kept Piracie is called of the gréeke word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is Deceptio in latine and in English Deceipt for that many times they pretend friendship when they intend nothing els but robberie and bloudshed or they are so termed of the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is of their wandring vp and downe and resting in no place but coasting hither and thither to doe mischiefe A Pyrat is a sea-théefe who for to inrich himselfe either by subtilty or open force setteth vpon Marchants others trading by sea euer spoiling them of their loading if they get the vpper hand and sometimes bereauing them of their life and sinking of their ships The proceeding in these Criminall matters is by accusation and information and after by triall of twelue men vpon the euidence according to the lawes of this land and the lawes of the auncient Feudes of Lombardie where the like triall is and from whence it seemeth this of ours was first deriued But here must we note that matters of reprisals are no Pyracies although many times there fals out no lesse outrage in them for spoiling and slaying of men than doth in the other for that Reprisals are done by the princes commission graunted to the subiect for redresse of some iniurie done to himselfe or his subiect by some other forraine Prince or Subiect and amends hath bin required by law and cannot be had whereupon licence is giuen to the subiect to relieue himselfe by what way he can against the other Prince or any of his subiects by taking so much goods of his as himselfe was indamaged which course is held among Princes the rather to affoord Iustice where it is lawfully demaunded Bartol l. nullus num 2. C. de Iudaeis Caelicolis And thus much of the causes whith ordinarily do belong vnto the cognisance of the Ciuile law within this land Now it followeth that I speake somewhat of those things wherein the Ciuile Law dealeth incidently and by authoritie of the Prince is not the ordinarie obiect of the Ciuile Law howsoeuer otherwise they cannot be handsomely dealt in but by such as haue the skill of the Ciuile Law Wherof there be thrée sort the first is matters of forraine treatie betwéene one prince and another the second is the ordering of martiall causes whether they bee Ciuile or criminall in an Armie the last is the Iudgements of ensignes and Armes and the decisions for challenges of rights of Honour and precedencie where any of them is in controuersie For the first wheras all other Nations in compasse round about vs be gouerned by the Ciuile Law and treaties are to be decided by law both for those things which are in question and to be concluded by Law for those things which are determined by consultation and agréed vpon who is therto to be chosen rather than a Ciuilian to whom their law is knowne as well as to themselues and if perhaps he vnderstand not their language yet hee vnderstandeth that language wherein the lawes themselues are written and is the fittest tongue for treatises betwéene Princes and Princes because it is a common tongue to the learned of all the west part of the world and thereby euery Prince shall retaine his owne maiestie in parlying as it were in his owne language and not be forced to speake in another Princes tongue which no doubt is a great disaduantage to him that shall treat for that euery Nation hath some proper Idiom not so wel discerned by the booke-speaker as perceiued by the Natiues of the country where it is spoken and wherein a stranger may easily bee deceiued How much forraine Princes doe esteeme of the skill of a Ciuilian in these matters it may bee vnderstood thereby that they neuer for the most part send any Embassage for the treatie of any league or matter of commerce but that one or moe of them are Ciuilians And if the care of these things bee so great with them surely the estimation of the same ought not to
were enemies and their tongue altogether vnknowen vnto them and beside for that this doctrine of Austen concerning Tythes best suted with the generall custome that was then vsed thoroughout all Europe in paying thereof The next Prince after William Conqueror that ordered any thing about payment of Tythes for oght that I haue read to the contrarie was Edward the first who at the petition of the Clergie stablished the Articles of the Clergie which his sonne Edward the second confirmed by his Letters patents vnder his great Seale and by consent of Parliament at the petition of the Clergie in the ix yeare of his Raigne In Edward the thirds time writs of Scire facias were An. 18. Ed. 3. cap. 14. graunted out of the Chauncerie to warne Prelates other Clerks to aunswere for Dismes there but after the matter was well vnderstood by the king the parties were dismissed from the Seculer Iudges for such maner of pleas sauing to the king his right and such as his Auncestors had and were wont to haue of reason During the Raigne of Richard the second Parsons of An. 1. Rich. 2. cap. 14. holie Church were drawen into seculer Courts for their owne Tythes by the name of goods taken away And it was decréed by the King that in such case the generall auerment of the plaintife should not be taken without shewing specially how the same was his Lay cattel By the Statute of the first of the same king cap. 14 it is acknowledged that the pursuing for Tythes of right doth and of old times was wont to pertayne to the Spirituall Court and that the Iudges of holie Church only haue the cognisance in these matters By the Statute of the 15. of Edward the third it is ordered 15. Edw. 3. That Ministers of holie Church neyther for money taken for the redemption of corporall penance nor for proofe and accompt of Testaments nor for trauell taken about the same nor for solemnitie of Marriage nor for any other thing touching the Iurisdiction of Holie Church should be appeached or arrested or driuen to answere the kings Iustices or other ministers thereupon they should haue writs in the Chauncery to the Iustices when they demaunded them In the second yeare of Henry the fourth the Religious of 2. Hen. 4. the order of the Cystercians that had purchased Buls from the Pope to be discharged of the paiment of Tythes were by act of Parliament reduced to that state they were in before In the 5. yeare of the same King it was ordered That 5. Hen. 4. ca. 11. all Farmers and Occupiers of any lands or possessions belonging to any Fryers Aliens should pay all maner of Tythes due to Parsons and Vicars of Holie Church in whose parishes the same were as the Law of holy Church required notwithstanding the same were seised into the K. hand or any Prohibition were made or to be made to the contrary About the 7. yeare of the same king such Religious persons as had purchased Buls from the Pope in the dayes of Richard the second to be discharged of Dismes pertaining to Parish Churches Prebends hospitals or vicarages not put in execution were forbyd from that time foreward to put them in execution or to purchase any other in time to come After king Henry the eight had dissolued the Monasteries and other like Religious houses and sold the Churches and Tythes therto belonging to Lay men who before that time were not capable of the same insomuch as after the dissolution when the Purchasors demaunded the same they were denyed to hold plea therof by reason of their incapacitie a Statute was made in the 27. yeare of the same king whereby 27 Hen. 8. cap. 20. all Subiects of the kings Dominions were to pay theyr Tythes and other dueties of Holy Church according to the Ecclesiasticall Lawes ordinances of the Church of England and after the laudable vses customes of the Parishes and places where they dwelt or occupied lands and the same to be sued for before the Ordinary or some other competent Iudge of the place according to the course processe of the K. Ecclesiast Courts of England which statute because it took little effect by reason of the obstinary of the people in yéelding these dueties to the Laitie who had purchased them that the said Purchasors could neyther by the order or course of the Ecclesiasticall Lawes sue for them in any Ecclesiasticall Court of this land neither was there found any remedy in the Common Law of this land whereby they might bee relieued against them that wrongfully detained the same In the 32. following another Statute was made wherin it was 32. Hen. 8. â—7 enacted that all singuler persons of this Realme and other of the kings dominions of what state degrée or condition souer they were should fully truely and effectually diuide set out yeeld and pay all and singuler their Tithes and Offerings to the owners proprietaries and possessors of Parsonages Vicarages and other Ecclesiastical places according to the Lawfull customes and vsages of the Parish and places where such Tythes or other duties rise and grow due And in case where any are wronged and grieued being either an Ecclesiasticall or lay person for the wrongfull deteining or withholding of the said Tithes or offerings or any part or parcell thereof the same to haue full power and authoritie to conuent the same person or persons so detaining the same before the Ordinarie or other competent Iudge of the place where such wrong was done and the same Ordinarie or competent Iudge to haue power by vertue of the said Act to heare decide and determine the same by definitiue sentence according to the course and procéeding of the Ecclesiasticall law without reseruation of any right to the Temporall Iudge to giue remedie by any suit or action for the recouery of the same sauing in case where an inheritance or fréehold in the premises is claimed and the person claiming is disseised deforced and put from the possession of the same in which cases only the Statute alloweth the Temporall Iudge to take knowledge and that onely for the regaining of the right and the possession of the inheritance so lost After the decease of king Henry king Edward his sonne 2. Edw. 6. c. 13. tendering in like sort the state of the Clergie the benefit of his subiects and the practise of the Ecclesiasticall Courts of this Land made a Statute wherby he did not onely ratify confirme and allow such statutes as his father had formerly made but did further order that euery of the kings subiects from thenceforth should iustly and truely without fraud or deceipt set out and pay all manner of prediall Tythes in their proper kinde as they did rise and happen in such manner as had béene paid within the fortie yeares next before the making of that act or of right or custome ought to haue beene paid with certaine forfeitures
the Councell that reformed it and was holden vnder Alexander the third was not celebrated before the yeare of the Incarnation 1189. neither was the reformation therof at that time totall nor suitable to the first institution of Tythe among Christians For neither could many wilfull and refractarious persons be then brought to obey the Canons of the Councell in restoring any part thereof againe vnto the Church although they were charged so to doe vnder paine of damnation Neither did all such as did then restore them restore them to the Churches from whence they were taken which had béene most agréeable to the ordinance of the Church set downe by Dionysius who first diuided Parishes and assigned vnto them Tythes as hath béene aforesaid and also to the Scripture it selfe from whence Dionysius tooke his light to diuide Parishes and dispose of Tythes as hee did by which it was not lawfull for him that paid his Tythes to pay them to what Priest or Leuite Deuteron 18. him liked but hee must pay them to the Priest or Leuite that dwelt in the place where himselfe made his aboad but yet this libertie that was giuen them by the Councell then gaue cause vnto the errour that the common Lawyers hold at this day not knowing the auncient procéedings of the Church in these cases that before the Lateran Councell it was lawfull for euery man to giue his Tythes to what Church he would which was so farre otherwise as that before this violence offered vnto the Church there was a flat Canon more auncient then the fact of Charles Martellus Leo. 4. 13. q. 1. c. Eccl. which did precisely forbid any man to pay or a Bishop to giue leaue to any man to pay his Tythes from the baptismall Church to another and that the contrary was yeelded to in the Lateran Councell was not that they held it lawfull to inrich one Church in this sort with the impouerishment of another but the cause was the hardnesse of mens hearts who scarcely could bee wun by this fauour to restore that little againe vnto the Church that their forefathers had in such abundance taken away from it and that the Fathers of the said Councell did yeeld thereunto although it were an inconuenience thus to doe was for that they did count although they did admit that for the present yet there might bee a better time found out after for the reformation thereof and so sustained the inconuenience for the present vpon this reason that the vniuersall Church of Christ is one bodie and euery particular Church a part of that bodie and so it lesse mattered to what particular Church they were restored so that they were restored at all for that by the restitution to one they hoped in time they might with more likelyhoode come vnto the other for in those things wherein there is an Identitie or like representation of Nature and condition as is betwéene Church and Church is easier passage the one from the other than is in those that are of different nature and disposition as is in a lay man and a Church Out of these ruines of these violent and presumptuous prescriptions which haue now obtained strength of a statute in the world haue issued out sundry petty prescriptions which also are confirmed by law and custom as the other were as the prescription wherein one Church prescribeth Tythes against another Church the Law punishing therein the negligence of the one and rewarding the vigilancie of the other Prescriptions wherein one Ecclesiasticall body corporate or politique prescribeth Tythes or other Ecclesiasticall duties against the Parson or Vicar of the Parish and the Parson and Vicar againe against them A prescription whereby a Lay man hauing no right to prescribe Regul sine posssessionâ—d regulâ—â— iâ—ris in 6. Tythes because he can in no right possesse Tythes and prescription cannot procéed without possession doth notwithstanding by pernancie or giuing some part of his ground or pension in money in licu thereof prescribe a discharge therof A prescription wherein a lay man doth prescribe the manner of Tything which albeit by the coÌ„mon Law is counted to be good by paying a thing neuer so small in lieu thereof yet neither by the Canon Law neither by the Law of God it selfe it could euer be lesse than the iust tenth it selfe so that the manner of Tything with them is not vnderstood in that sence as the Common Lawyers doe take it by paying any thing whatsoeuer in place of the iust tenth but their intendment hereby is that no country can be bound to an vniformitie Liâ—wod Prouin quâ—â—am verbo vnâ—formâ—â— in Glo. de decim of payment of Tythes to be vsed euerywhere but euery man is to pay Tythes according to the manner of the Country where he dwels that is that one paies his Tythe corne and binds vp the same in sheaues another leaues it scattered in the furrowes another Tythes it in Cocks or Pookes and this is that that they meane that there cannot be an vniformitie of Tything prescribed to euery man after which he is of necessitie to set out his Tyths but that he may prescribe some other manner of Tything against the Parson or Vicar but against that vniformitie that the whole tythe â—â—d verbo consâ—â—tudines should not be paid was neuer any prescription allowed among them for they euermore haue beene of this minde contrary to that that the Schoolemen hold that Tythes are part of the Morall Law and not of the Iudieiall or Ceremoniall Law and that in the Precept of Tythes there is a double Ca. a nobis de decimis in Glos. consideration one of the honour of God whereby be retained tythes vnto himselfe in signe of his vniuersall Lordship ouer the whole world which is irremissable the other of the profit or vtilitie of man in that it concerns the prouision of the Minister in all ages which is vndispensable And yet notwithstanding all this the Ecclesiasticall Iudge admitteth all kinds of prescription beforenamed and according to the proofes thercon brought giueth sentence either to absolution or condemnation albeit the reuerent Iudges of the Land vpon an erronious report made in the eight yeare of Edward the fourth haue a conceipt to the contrarie viz. That no Ecclesiasticall Iudge will admit any Plea in discharge of Tythe or the manner of Tything as it is in their sence taken and therfore they hold whatsoeuer the defendant doth alledge in his suit for a consultation and namely that the Ecclesiasticall Iudge did allow of the Plaintifes Plea and allegation and did admit him to the proofes thereon without deniall are idle speeches and rather words of course than of effect and substance And therefore notwithstanding whatsoeuer is alledged by the Defendant as concerning the Ecclesiasticall Iudges well acceptance thereof it is counted nothing materiall by the Temporall Iudges for that they haue a preiudicate opinion of the Ecclesiasticall Iudge in these cases and therefore
and other of like nature according to the learning of that Law but these are certain accidents ouer and beside the Tenure of the land which may be present or absent without the iniurie of the Tytle as God many times turneth floulds into wildernesse springs of water againe into drinesse a fruitful land makes he barren for the wickednesse of them that dwel therin and yet the Tytle or Tenure of the ground is not changed by these changes of qualities but remains the selfe same that it was so that these things are no more subiect to the ordering of the Common Law than it is in the Cōmon Law to iudge determine what mould is white what is black what ground will beare wheat what barley what oats for these things are no matters of skil of law that they néed to be fetcht out of bookes but they are matters of common experience which euery country man can as well skill of as the greatest Lawyer that is and therefore the Law in this case is not desirous of any curious proofe but contenteth it selfe onely with the depositions of two or thrée honest men which speak sensibly and féelingly to the point that is in hand which is enough to direct any wise Iudge in his sentence so that it néeds not these long circumstances of twelue men to teach the Iudge what and how truely the witnesses haue deposed For if euery qualitie of the ground resteth in the mouth of twelue men onely then should no man bee able to say out of the mouth of a witnesse and pronounce thereupon this ground is mountaine this is plaine this is meadowe this is errable vnlesse he were warranted by the verdit of twelue men therunto which if it be an absurditie to hold then sure it is like absurd to say that barren heath and waste cannot bee pronounced without a Iurie for that these things are like obuious to sence and like qualited as the other are And I pray you when they haue drawne it vnto their triall what doe they in effect otherwise than the Ecclesiasticall Iudge would or should haue done if it had remained stil vnder him for doe they giue credit simply to the conceit of the Iurie as touching that which hath béene declared and pleaded in the cause before them or doe not the Iudges themselues rather make a briefe of all that hath béene pleaded in the cause before them and thereof make as it were a verdit and put the same in the mouth of the twelue for their verdit before they goe from the bar So that the whole weight of the cause standeth rather in the Iudges direction in such sort as it is at the Ecclesiasticall Law than it doth in the mouth of the Iurie for the Iurie men for the most part are simple people scarce foure of the twelue vnderstand their euidence so that it may séeme rather to be a matter of supersluitie than of good policie to refer a matter to their verdit when as they say no other thing than that the Iudge taught them before Stultum enim est id facere per plura quod fieri potest per pauciora for albeit perhaps some capricious fellow of the Iurie vpon the confidence of his owne braine sometimes start aside from that which the Iudge hath told him and draw the rest of his fellowes as so many shéepe after him yet for the most part the Iudges voice is their direction their loadstone and and North pole to guid them in this businesse Besides in this Prouiso as in some other precedent there is a great disaduantage offered to the Clergie which they much complaine of and that is that in cases of this nature they are compelled to suffer triall vnder them who are as in a maner parties vnto the suit by reason of the interest they haue therein either in present or in consequence so that many now a daies learning too late by other mens harmes what the euent in theirowne cause wil be chuse rather to loose their right than to venture their cause vpon such partiall Iudges as the 12. men are And so far as concerning those prohibitions as are forced out of this Statute for naturally they grow not out thereof so that I might now passe ouer to the other branch of my diuision that is of such matters as are now held by the Common Lawyers to be in a certaine measure only of the Ecclesiasticall procéeding but were aunciently wholy of the Ecclesiasticall cognusance but that the name of the Statute De Sylua caedua offering it selfe vnto me in the conclusion of this Statute of Edward the vj. giues me occasion to speak something thereof before I come to the rest This Statute as the words thereof doe shew was made in behalfe of the Laitie against the Clergie for the exemption of great Woods of xx yéeres growth vpward from the payment of Tythes and that in three cases only where the wood was great where it was of xx yeares of age and vpward where it was sold to Marchants eyther to the profit of the owner himselfe or in ayd of the King in his warres so that without these cases it séemeth the Statute intended no further exemption for Statutes are things of strict Law and are no further to be extended than the words thereof giue matter thereunto specially when the thing it selfe naturally was lyable to ordinary course of the Law as other things of like nature are and the statute comes in derogation of their ordinary course as in this case great timber auntiently was no lesse tythable than small trées are and so by nature ought to be if the statute were not to the contrary yet notwithstanding these limitations of the same if great wood be cut down to any other vse then to sale as to build or to burne to a mans owne vse a prohibition in this case lyeth and yet is there no Identitie of reason to extend it nor any absurditie would follow if it were not extended for here is neither mony sought which gaue occasion vnto the Lawgiuers to make this statut of exemption neyther is it an vnnatural thing for to pay Tythes of great wood for before this time they were paid and by the Law of God it séemes they ought to be paied for that he that is taught ought to communicate to him that teacheth him in all things and therefore since the reason that moued the Lawgiuers to order it so in one case ceaseth in the other there is no reason of extention when there is not an Identitie of reason in the things that are in demaund there can no sound inference be brought in from the one to the other for of seuerall things there is a seuerall reason and a seuerall consequence neyther can there be framed thereof a good implication eyther positiuely or remotiuely neyther hath this interpretation of theirs any warrant of Law for it saue that it hath bin so defined and decided
but what is that to the purpose if it hath bin wrested and wronged contrary to the true sence of the Statute and that by those that take benefit thereby whose partiality being taken away the thing it selfe would easily turne againe to his owne nature and right would take place The reason they yéeld for the exemption of great woods of the ages aforesaid although to themselues it be plausible yet to others it is strange as namely that great Trées are Plowd in Soby contra Molyns part of the Fréehold and that men vse not to pay Tythes of their fréehold but of those things which spring out of their fréehold as out of Corne grasse fruit such other whereas in déed the tallest Timber tree that is if it were as high as the highest Cedar in Lebanon is no more part of the inheritance or fréehold than the lowest bramble that groweth in the field for they are both equally part of the ground wherin they grow and do take a like norishment and sustenance from the same neyther doe they differ in that they are trées the one from the other secundum magis et minus as the Logitians say but in that the one is a great trée and the other a small shrub and the cause of this prouision here in England for these great trées was not for that one was more of the inheritance than the other but for that the one yéeldeth more profit to the common wealth than the other therefore they haue made the cutting down of the one more penal than the other as in like case by the Ciuile Law who so priuily cutteth downe or barketh a vine an oliue or a fig trée ff Arborum furtim caesarum toto tit or doth any other vnlawfull act whereby any fruitfull trée or any Timber trée doth perish and decay it is Theft and it is punished in the double value of the hurt which is done and if he be tenant to the ground which hath done this villanie he loseth his hold which commeth not of that that one kind of Trée hath more state in the ground than an other hath but that the Law hath respected the necessarie vse of the one more than the other By the Ciuile Law although this word Wood be generall L. Ligni appollatione de Lâ—g 3 L. Carbonum ff de verb. significat yet it is thus distinguished that some is wood some is Timber which the Law cals Materia Timber is that which is fit to build or vnderprop withall Wood is whatsoeuer is prouided for fewell so that vnder that name there passeth Réed Coale Turfe Cow dung and whatsoeuer L. ligni appellatione § Ofilâ—us §. idem ff de legat 3. is any where ordinarily vsed for fewell Tymber is of a higher consideration than wood is insomuch as if a man bequeath vnto an other all his wood that is in groue field there shall not passe by this legacie such Trées as are cut downe for timber but if they were dotterd Trees or the owner thereof purposed them for fewell and so cut them out into billet or fagot in such sort as there could be no other vse thereof than to burne then it is otherwise for by this meanes of great wood it is become small wood as being cut out in shides or splinters fit for to burne So that in the reckoning of the Ciuile Law tymber stands not onely in the nature of the wood it selfe but is in the destination and purpose of the owner who according to his good lyking may make that wood which is fit for timber fier wood or tymber which if it were so in account with the great Lawyers of this land the Church should haue more Tythes of Wood appointed for fewell and lesâ—e suite for the same As they exempt the bodies of great Trées aboue xx yeares Plowd vt supÌ„ growth from payment of Tythes so also they frée the boughes thereof vpon this reason that the boughes thereof are fit and seruiceable for buylding which although haply may be in some of them that are next to the Trunck of the trée yet it is far otherwise in those that are more remote from the same whereof there can be no other vse than to burne and therefore the Law precisely holds in case where wood is bequeathed by which is meant fier wood only vnlesse the Testator otherwise expresse his mind the lops of timber L. Ligni appellatione §. Ofiliâ—â— de Leg. 3. trées which the Law cals Superamenta materiarum are bequeathed for that the lops haue not that vse that the Timber hath that is to buyld or prop vp withall but they serue to burne onely by which seuerall ends there is seuerall consideration and accompt made of them Neyther is it to the purpose that they alleage for the defence hereof that the accessorie followeth the nature of the principall for that rule is not true in euery accessarie but onely in such in whom is the like reason as is in the principall which in the trunk L. â—tsi C. de Praedijs minoruÌ„ and lop of a trée cannot be alike for buylding Further how the Boughes of a tree that are of the same substance as the bodie of the trée is should be accessaries to the trée I sée not for nothing can be an accessarie to an other that is of the same nature and substance as the other is as the leg or hand are no accessaries to the bodie for that the leg or hand are of the same substance that the bodie is The Child neyther while it is in the Mothers wombe neyther after it is borne is an accessarie to the Mother for L. 1. ff de ventre inspiciendo while it is in the Mothers wombe it is part of her wombe and after it is seuered from her wombe it is a man or woman like principall as her selfe is But that which is an accessarie to an other must be of an other nature than the principall is so in naturall lyuing creatures haire hoofes hornes and finnes and such other like excrements are accessaries to the creature whose they are for that they are of a far different nature from the bodies out of which they come and so in other naturall things not lyuing as the Earth it selfe is the trées grasse and fruit that spring out of the same are accessaries thereto Further in Ciuile matters expences and executions are accessaries to the causes out of which they rise and in Marriages Dowries and L. doâ—is ff de iure doâ—ium Iointures are counted accessaries to them for that wythout Marriage neyther ioynture nor dowrie can stand Vsurie is said to be an accessarie to the principall not in respect that the proper subiect of eyther of them is Money and so there is one substance or nature of them both but in regard of the dependencie the one hath of thother for he that will make challenge to Vsurie must first proue there