than that in their life time they may dispose how their goods shall bee bestowed after their death shall have that end that the Testators themselves intended ff Si quis omissa causa testamen L. nam facit totum l. 4 ff do hâ—â—edib instituend l. pater familias §. 3. which if they had known in their life time their Executors would not have performed they would never have put them in trust as they did Besides hereby the names of Executors which now are charged with manifold imputations by the ill dealing of some shall by this meanes be unburdened restored unto their former credit which was to discharge the trust that by the defunct was reposed upon them for the Will of the defunct cannot bee defrauded without great sin An other mischiefe there is in Executors and Administrators not onely uncontroulable by the Law of this Land but rather allowed justified by it and that is when they have once got the authoritie into their hands and priced all at the lowest rate they will sell away all at the highest price they can and answer the poore Children Legatories for whose good they were appointed Executors at the value in the Inventarie onely contrarie to all right and reason for by the Law an Executor is to sell nothing of those things ff de reb eorum qui sub tutela sunt sine decreto non alienandiâ— vel obligandis tot tit ibi Bartol in rubrica which are left unto the Children or Legatories but such things onely which by keeping cannot bee kept or which being kept will be chargeable to the inheritance or otherwise the Testator were so indebted that his state must needs be sold for the satisfying of the Creditors or lastly that he himselfe ordered by his Will something should bee sold But for such things as may be kept and by keeping will not be the worse he ought precisely to preserve them specially where the Testator hath bequeathed any thing in kind And if he sell ought of those things which he ought not to sell he may not sell it but by the decree of the Judge interposed upon the same and upon just cause proved before him wherin if it appeare after the Judge was abused by any false allegation and corrupt testimony the sale is void and the Minor when he comes to his full age or within 5. yeares after may reverse recover that which is thus sold by collusion out of the hands of him to whom it was sold as being done against the authority of the Law And that it may be better understood how precise the Law is in this point and what things it alloweth may bee sold without the decree of the Judge what not I will set downe the words of the Law it selfe speaking of Tutors and Governors of Puples whose place Executors Administrators do supply so far forth as they have the tuition governance of Minors during their under-age faithfully translated And it is a law of Constantine the great reproving a former law of Sâ—v 〈…〉 the Emperour C. de administrat tutorum vel curatorum 〈◊〉 lex qua which gave leave to Tutors and Curators to sell away all the gold silver precious stone apparell otherrich moveables the Testator had and to bring the same into money which turned greatly to the hinderance of many Orphans whereupon Constantine after he had first ordered that nothing should bee sold of the pearle precious stone naperiâ— utensels of the house other necessary stuffe ornaments of the same saith thus Neither shall it be lawfull for them meaning the Tutors or Curators to sell the house wherein the Father died and the childe grew up wherein it is woe enough to the childe not to see his Ancestours images not fastened up or else pull'd downe Therefore let the house all other his moveable goods still remaine in the Patrimonie of the childe neither let any edifices or buildings which came in good reparation with the inheritance ruine or decay by collusion of the Tutor but rather if the Father or hee whosoever the minor was heire unto left any building in decay let the Tutor both by the Testimony of the worke it selfe and the â—aith of many be compelled to repaire it for so the yearly rent will bring in more profit to the Minor than the price of the things being deceitfully sold under-foot will doe the Minor any good Neither doth this Law onely make provision against Tutors but also against immodest intemperate women which many times gage unto their new married husbands not only their owne state but even the state and lives of their children Further it crosseth the course of putting the childrens money to usury notwithstanding anciently it was thought therein consisted all the strength of the Patrimony for that course is seldome long scarcely continuall and stable and that thereby many times the money being lost the childrens state comes to nothing and therefore his conclusion is The Tutor should sell nothing without the order of the Judge saving the Testators over-worne apparell or those things which by keeping could not be kept from corruption and such cattell as were superfluous Whereby it appeareth how carefull that age was not to give way to Executors by sale of the Testators goods to make gaine of the Orphans neither is this age better than that but that which was feared then may bee provided for now by like authoritie as was then In this Land a man dying leaving Legacies to his children and his wife Executrix or dying intestate and shee taking administration and in her second marriage bringing all her first husbands state and her childrens portions unto her second husband then dying there is no remedy against the second husband to recover the said Legacies or portions due unto the children out of his hands because he is neither Executor nor Administrator and that he came not to those goods by wrong but by the delivery of the Executrix with whom he married but yet by the Civile Law there is and L si me ff de rebus creditis si certum petatur that by this claime that the said goods came unto his hands that it is no reason any should be made rich by my goods against my will for Legataries have no action against any as Administrators in their own wrong or hinderers of the performance of the last Will of the deceased but Executors onely and they then alone when the party having it holds it by wrong and not by lawfull delivery which in this case is otherwise By the Law of this Land there is no provision to preserve the state of a prodigall person from spoile which neither hath regard of time nor end of spending unlesse the Father provide for this mischiefe in his Will or by some other good order in his life but he is suffered to waste and spend his goods untill there be nothing left as though
that all the Lawes thereof appertaine unto Your Majesties care comfort alike For which not onely the whole profession of Your Ecclesiasticall and Civile Lawyers that now are but those which shall succeed in those places for ever hereafter unto the worlds end will praise and magnifie Your Majesties gratious favour towards them and wee that now are will pray to God for the long and happie prosperitie of Your Highnesse and Your Posteritie over us during the continuance of this Heaven and this Earth and after the passing away thereof a perpetuall fruition of the new Heaven and the new Earth wherein righteousnesse onely shall dwell for ever Your Majesties most humble and dutifull Subject THOMAS RIDLEY To the Reader GEntle Reader I confesse as I meditated this Treatise upon mine owne motion as I doe somtimes matters of other argument when my leasure serves mee thereto so also I doe not set it out to the view of the world upon mine owne motion but was desirous it should have beene kept in saving that I must obey where I am bound The thing that gave mee cause to this meditation was that I saw many times how meanly men esteemed of the Civile and Ecclesiasticall Law of this Land valuing them by the practice of so much of them as we have among us And therefore I thought good although not wholly to unfold the riches of them yet to make shew of them folded up in such sort as Mercers make shew of their silkes and velvets laid up in whole peeces in their shops whereby it may bee seene what great variety they have of all these kinde of wares although the goodnesse of the ware it selfe cannot be discerned because it is foulded up Besides seeing how frequent prohibitions are in these dayes in causes of either cognisance more than have beene in former time I thought it not unworthy my labour to inquire and see upon what just grounds they are raised up in this multitude not of any humour I have to gainesay the lawfull proceedings of any Court which I reverence and most readily acknowledge their authoritie in all things belonging to their place but to know and search out the truth of those suggestions that give cause unto these prohibitions For whenas such Lawes as are written of these businesses are written indifferently as well for the one Iurisdiction as the other no man is to be offended if the one Iurisdiction finding it selfe pres sed by the partiall interpretation as it supposeth of the other inquire the ground of such interpretation and labour to redresse it if it may be by the right interpretation thereof To the end that either Iurisdiction may retaine their owne right and not the one bee overtopt by the other as it seemeth to be at this day And that in such matters as they concerne of their owne right as depend of no other authoritie but of the Prince alone which is the thing onely that is sought in this little Treatise And therefore the Reverend Iudges of this Land are to be intreated that they will vouchsafe an equall interpretation of these matters as well to the one Iurisdiction as the other for so it is comely for them to doe and if they doe it not the other are not so dull-senced but they can perceive it nor so daunted but that they can flie for succour unto him to whose high place and wisdome the deciding of these differences doth of right appertaine PENELOPE is said to have had many wooers comely in person and eloquent in speech but shee respected none but her owne ULYSSES Such should be the minde of a Iudge that whatsoever other appearance or shew of truth be offered one saying This is the true sence of the Law and an other that yet the Iudge should respect none but the very true germane and genuine sence thereof indeed Which if it were religiously or indifferently observed in every Court then needed not this complaint that now is but every Iurisdiction should peaceably hold his owne right such as the Prince Law or Custome hath afforded unto it THOMAS RIDLEY A VIEW OF THE Civile and Ecclesiasticall Law also wherein it is straightned and wherein it may be releeved PART I. CHAP. I. SECT 1. The Division of the whole booke into foure parts What right or Law is in generall What is the Law publick and what the Law private What is the Law of Nature What is the Law of Nations What is the Law Civile BEfore I shew how necessary it is for his Majestie and the Realme to maintaine the Civile Ecclesiasticall Lawes as they are now practised among us in this Realm I will set downe as it were in a briefe what the Civile and the Ecclesiasticall Lawes are then will I shew how farre forth they are here in use and practise among us thirdly wherein wee are abridged and put beside the use and possession thereof by the Common Law even contrary to the old practise thereof and the true sence and meaning of the Lawes of this Realme and the Statutes in this behalfe provided and lastly wherein we might be releeved and admitted to the practise of many things in the Civile Law without prejudice to the Common Law and so both the Lawes might know their owne grounds and proper subjects and not one to be jumbled with the other as it is at this day to the great vexation of the Subject But before I speake of the Civile Law in particular I will define what Right or What Law is Law is in generall Law therefore is as Vlpian saith L. 10. in fin ff de Justicia Jure the knowledge of Civile and humane things the understanding of those things which are just and unjust This Law is primarily divided into the Law publick and the Law private The 1. Jus publicum publick is that which appertaineth to the generall state of the common-wealth for I meane the Law publick not in respect of the Forme that they were publickly made as we make lawes in our Parliaments for so all the Civile Law is publick as made by publick authority but in respect of the object or end thereof for that they concerne the Church the Clergie the Magistrate and other like publick functions none of which levell at the rule of equity or equality between man and man as private lawes doe but ayme at that which is most fit ingenerall for the common State 2. Jus privatum The private Law or the private mens Law is that which concernes every singular mans state which for that it is occupied in giving every man his owne it must of necessitie be proportionable to the rule of Equitie and Justice Private Law is of three sorts the law of Nature the law of Nations and the law Civile The law of Nature is that which Nature hath taught every living creature as the care and defence of every The Law of Nature creatures life desire of libertie the conjunction of male
and that no poast-horse or carriage be taken but for publick use of poast-letters to whom they are to be granted and for what time Of the Apparitors Sergeants Sumners or Baylifes Of sundry great officers and of their Scribes and Registers and of their trials Of the fees of Advocates and of the extortion of Apparitors And this is the summe of those things which are specially conteined in the Code besides other things which it hath common with the Digest the knowledge whereof at this day is not so necessary for the Civilian who in this age hath little use thereof as it is expedient for Councellours of State and such as are called to place in Court who may there-out marke many things to direct them in their place as the variety of those things which are herein handled doth very well shew CHAP. III. SECT 1. What the Authenticks are and why they are so called THe third Volume of the Law is called the Authenticks of the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 either because they have authority in themselves as proceeding from the Emperors owne mouth or that they are originals to other writings that are transcribed out of them The Authenticks therefore are a Volume of new Constitutions set out by Justinian the Emperor after the Code and brought into the body of the Law under one Booke In the Authenticks is not that order observed in the disposition of the Lawes as is either in the Digest or the Code but as occasion was offered of any doubt wherein the Princes resolution was necessary to every thing so it is set downe without any other methode or forme The whole Volume is divided into * In the Latine translation for the Greeke text acknowledgeth not this division into Collations 9. Collations Constitutions or Sections and they again into 168. Novels which also are distributed into certaine Chapters They were called †quòd novissimè promulgatae sint post Cod. Justin. Repetitae Praeâ—ectionis and therefore the Greeke calleth them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 so likewise the constitutions of the Emperours which were newly published after the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 were called the Novels of Leo Nirephorus Michael c. Novels because they were new Lawes compared to the Lawes of the Digest or the Code Of these Constitutions some were generall and did concerne all who had like cause of doubt some other were private and did concerne only the place or persons they were writ for which I will overpasse with silence SECT 2. The summe of the first Collation OF the generall the first title and first Novell of the first Collation is that Heires Feoffees Executors Administrators and their Successors shall fulfill the Will of the deceased and within one yeare after his decease shall pay his Legacies and Bequests and if they be once sued for it they shall forthwith pay that which is due upon the Will deducting onely a fourth part which is due unto the heire by the Law Falcidia or else to lose such bequests as themselves have in the Will That it shall not be lawfull for a Widow comming to a second marriage after her first husband is dead to sequester one of her children from the rest upon whom shee will bestow such things as her first husband gave her before marriage but that the benefit thereof shall be common to them all Neither that shee convey it over to her second husband or his children and so defraud her first husbands children And that a man in like sort surviving his wife shall doe the like toward his first wives children as concerning such Dowry as the first wife brought to her husband Of Suerties and Warranties that the Creditors shall first sue their Debtors and take execution against their goods and finding them not payable shall then take their remedy against the Suerties Of Monkes that they build no Monasteries but with the leave of the Bishop who is there with prayer to * lay But the Emperour maketh no mention of this Rite for thus saith the Law None shall presume to erect a Church or Monasterie till the Bishop of the place beloved of God having beene made acquainted with it shall come and lift up his hands to heaven and consecrate the place to God by prayer 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and there erect the Symbole of our Salvation wee meane the venerable and truely pretious Rood In Auth. De Monach. § Illudigitur Coll. 1. See also Novell 123. 131. And the like is commanded in the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Yet that this Ceremony of laying the first stone hath beene of ancient use in the Greeke Church may be observed out of their Euchologue where it is said that the Bishop after some other Rites performed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 standing in the place where the holy Altar shall be set saith a prayer which being ended he giveth the Ite Missaest and then taketh up one of the stones and having cut a Crosse upon it himselfe with his owne hands layeth it upon the Ground-worke then hee pronounceth the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. and so the work-men begin the building That which followeth in the Euchologue discovereth the forme and manner of setting up the Crucifixe which the Law calleth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Reader may see 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of the Euchologue The like Ceremonies are used in the Latine Church at this day as may bee seene in their Pontificale page the 281. of that which Clement the 8. set out at Rome in the yeare 1565. the first stone And that the Bishop shall appoint such an Abbot over the Monkes as in vertue and in merit excels the rest And besides of their habit conversation professions and change of life and who is to succeed them in their goods and inheritance Of Bishops and Clerks that is that Bishops and Clerks be of good fame of competent learning and age and that they be ordeined and promoted without Simonie or briberie or the injury of the present Incumbent And that there be a set number of Clerkes in every Church lest the Church and Parishioners thereby be over-charged SECT 3. What is conteined in the second Collation THe second Collation treateth of the Churches State that the lands of the Church be neither sold aliened nor changed away but upon necessity or that they be let to farme for a time or upon other just cause no not with the Prince himselfe unlesse the change be as good or better than that which hee receiveth from the Church and if any man presume contrary to this forme to change with the Church hee shall lose both the thing he changed and the thing he would have changed for it and both of them shall remaine in the right of the Church And that no man give or change a barren peece of ground with the Church That Judges and Rulers of Provinces bee made without gifts of their office power authoritie
and stipend and that they sweare they shall so sincerely and uprightly execute their office as knowing they shall give an account thereof to God and the King which oath they shall undergoe before the Bishop of the place and the chiefe men of that Province whither they are sent to be Judges or Governours Of the Masters of Requests and their office which offer to the Prince suters Petitions and report them back from the Prince unto the Judges Of wicked and incestuous Marriages and that such as marrie within those degrees forfeit all that they have unto the Exchequer for that when they might make lawfull marriages they rather chuse to make unlawfull marriages SECT 4. The Argument of the third Collation THe third Collation conteineth matter against Bawdes that they be not suffered in any place of the Roman Empire that being once warned to forbeare their wicked profession if they offend therein again they die the death therefore If any man let any house to a bawd knowing him to be a bawd that he shall forfeit * Sciat se decem librarum auri sustinere poeram circa ipsam periclitaturum habitationem In Auth. De Lenonibus § Sancimus Coll. 3. x. li. to the Prince and his house shall be in danger to be confiscated Of Maiors and Governors of Cities that such be chosen that be honest people and men of credit and that no man of the Citie being thereto chosen refuse the same and that such as are thereto chosen shall sweare they will proceede in every matter according to Law and Conscience That there be a certaine number of Clerkes in every Church and that it be neither diminished nor increased and therefore that there be a translation of those that abound in one Church into an other Church that wanteth The precepts which Princes gave to Rulers of Provinces were these in effect that wheras themselves were freely chosen thereunto they should in due sort and order goe into their Provinces that they should keepe their hands pure from bribes that they should carefully looke unto the Revenues of the Exchequer and the peace and quiet estate of the Province represse outrages and rebellions procure that causes be ended with all indifferencie and ordinary charges to foresee that neither themselves nor any of their officers or under ministers doe injurie to the people and so those that ought to helpe them should hurt them To provide that the people want not necessary sustenance and keepe the Walls of the Citie in reparation that they punish offences according to the Law without respect to any mans priviledge neither admit any excuse in the examining or correcting of the same save innocencie onely that they keepe their Officers in order that they admit to their Counsell such as are good men are milde towards such as are good and sharpe towards such as are evill that they afford not Protections to every man neither to any one longer then it is fit and convenient it should be that where they remove they vexe not the Countrey-men with more carriages then is needfull that they suffer not Churches and other like holy places to be a Sanctuarie to murtherers and other such like wicked men that they suffer not Lands to be sold without fine made to the Exchequer that they regard not Letters or rescripts contrary to Law and against the weale publick unlesse they be seconded that they suffer not the Province to be disquieted under pretence of Religion heresie or schisme but if there be any Canonicall or ordinary thing to be done they advise thereabout with the * Auxiliabuntur autem tibi ad hoc etiam Deo amabiles Ecclesiarum defensores De Mand Princip § Neque autem homicid Bishop that they doe not confiscate the goods of such as are condemned that they patronize no man unjustly that no man set his Armes or Cognisance upon an other mans Lands neither that any carrie any weapon unlesse he be a Souldier What is an hereditary portion and how children are to succeed of such as deny their owne hand-writing and * Condem 〈…〉 onem adversus eum duplicem in utroque casâ— fieri sancimus De Trient semiss § Studium vero how they are to be punished as well in personall as in reall actions and that such deniers after their deniall be not admitted to other exceptions and the taking away the thing in controversie from him which denied the true owner to be Lord thereof SECT 5. What is comprehended in the fourth Collation THe fourth Collation handleth matters of Marriage and that marriage is made onely by consent without either lying together or instruments of dowrie Of women that marrie againe within the yeare of mourning which by Law in sundry sorts was punished for confusion of their issue that there be an equall proportion in the Dowrie and the Joynture Of Divorce and separation of marriages and for what causes by consent for impotencie for adulterie and that Noble women which after the death of their first husband being noble personages marry to inferiour men shall lose the dignity of their first husband and follow the condition of their second husband Of Appeales and within what time a man may appeale and from whom and to whom the appeale is to be made That none which lends money to a husband-man take his land to morgage and †Nihil amplius quam siliquam unam pro singulo sâ—lâ—do annuam praestare Nequia quod Agricol § Sancimus how much usury-money a man may take of a husbandman Of her that was brought to bed the eleventh moneth after her husbands decease and that such as are borne in the The Glosse relateth a matter of fact contrary to this Law A widow in Paris that was delivered of a childe the 14. moneth after her husbands decease neverthelesse the good repute which was generally conceived of this womans continencie prevailed so much against the letter of the Law that the reverend Judges awarded the case of child-birth to be extraordinary the woman to be chaste and the childe legitimate Haec tamen in exemplum trahi facilè non oportet as the Glosse there concludeth beginning of the same moneth are to be accounted for legitimate but such as are borne in the end thereof are to be holden for bastards Of instruments and their credit and that in every instrument there be Protocols left that is signes and notes of the time when such a contract was made and who was notarie and witnesses to the same and that after it be written faire and ingrossed in a lidger or faire * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Chartam puram mundum Booke SECT 6. What is comprised in the fifth Collation THe fifth Collation forbiddeth the alienation or selling away of the immoveable possessions of the Church unlesse it be done under certaine solemnities and then onely when the moveable goods are not sufficient to pay the debts of the Church or
is death Of such as despitefully on every light trifle sweare by God and * The crime of Blasphemy was so odious to the Emperour that he thought God would never suffer a blasphemer to goe unpunished for sins of this nature saith he the world is visited with famines plagues and pestilences therefore the Law heere provideth that a blasphemer shall undergoe ultimum suppltoium If thou meetest saith Chrysostome a man blaspheming 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 S 〈…〉 ke him a boxe on the eare give him a dash in the mouth and sanctifie thy hand with a 〈…〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a. free Hom. 1. ad Pâ—p A 〈…〉 chenum pag. 46â— edâ— Sancti blaspheme his holy name against whom also is provided the sentence of death That the Justices of Peace or other Officers to that purpose appointed speedily dispatch the businesse of those which are of their Jurisdiction that such as come as strangers and forreiners out of other countries having no just cause of their comming be sent back againe with their substance to such places as they came from but if they be idle vagabonds and rogues or other like valiant beggers they either drive them out of the place or compell them to labour yet evermore having regard to provide for such as are honest poore old sick or impotent That Clerks be first convented before their Ordinarie and that the Ordinarie doe speedily end the matter that they may not be long absent from their benefices and that they be not drawne before temporall Judges unlesse the nature of the cause doe so require it as that it be a meere civile cause or a criminall cause belonging wholely to the Temporall court wherein if a Clerke shall be found guilty he shall first be deprived from his ministerie and then shall be delivered over into the Secular hands but if the crime be solely Ecclesiasticall the Bishop alone shall take knowledge thereof and punish it according as the Canons doe require That where one dieth without issue leaving behind him brethren of the whole bloud brethren of the halfe bloud the brethren of the whole bloud have the preheminence in the lands and goods of the deceased before the brethten 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 leave unlesse they be knives or other such like small weapons SECT 8. What is the matter of the seventh Collation THat proofe by witnesses was devised 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 suspition of love hatred or corruption and that their dispositions be put in writing that after the witnesses be published and their depositions be knowne there be no more production of witnesses unlesse the partie sweare those proofes came a new unto his knowledge If Parents give profusely to one of their children the other notwithstanding shall have their lawfull portions unlesse they be proved to be unkinde 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 will not marry againe so that they renounce their priviledge granted unto them per Senatûs consultum Velleian and performe all other things as other Tutors doe That Governours of Provinces are not to leave their charges before they are called from thence by the Prince otherwise they incurre the danger of Treason That womens Dowries have a priviledge before all other kinds of debt that what Dowrie a woman had in her first marriage shee shall have the same in her second marriage neither shall it be lawfull for her father to diminish it if it returne againe unto his hand That a man shall not have the propertie of his wives dowrie neither a woman the property of that which is given her before marriage but the property of either of them shall come unto their children yea though they marry not again SECT 9. What is comprised in the eigth Collation WIls or Testaments made in the behoofe of children stand good howsoever imperfect otherwise they De Testament imperfect § Nos â—g 〈…〉 are but they are not availeable for strangers 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 and as the father divideth the goods among the children so they are to have their parts Of Hereticks and that such are Hereticks which doe refuse to receive the holy Communion at the Ministers hand in the Catholick Church That Hereticks are not to be admitted to roomes and places of honour and that women-Hereticks may not have such priviledge as other women have in their Dowries That is called marriners usurie that is wont to be lent to Marriners or Merchant-men specially such as trade by sea which kind of lending the Law calleth passage-money in which kinde of usury a man cannot goe beyond the 100. part That Churches enjoy a 100. yards prescription That such things as are litigious during the controversie are not to be sold away A litigious thing is that which is in sute betweene the plaintife and defendant That while the sute dependeth there be 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 use That in Divorces the children be brought up with the innocent partie but at the charges of the nocent and that Divorces be not admitted but upon causes in Law expressed That no woman whose husband is in warfare or otherwise absent shall marrie againe before she have certaine intelligence of the death of her former husband either from the Captain under whom he served or from the Governour of the place where he died and if any woman marry again without such certaine intelligence how long soever otherwise her husband be absent from her both shee and he who married her shall be punished as adulterers and if her former husband after such marriage returne back againe shee shall returne againe to her former husband if hee will receive her otherwise shee shall live apart from them both If any man beat his wife for any other cause than for which he may be justly severed or divorced from her hee De haered 〈◊〉 inteslat § Si quis autem shall for such injurie be punished If any man conceive a jealousie against his wife as that she useth any other man more familiarly than is meete shee should let him three severall times admonish him thereof before three honest and substantiall men and if after such admonition he be found to commune with her let him be accused of adultery before such a Judge who hath authority to correct such offences SECT 10. What is the
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
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
somtimes at Rome in Italy somtimes at Avignion in France sometimes in other places as by the date of the Bulls and other processe of that age may be seene which severall removes of his gave occasion to the Parliament of inserting the word Elsewhere in the body of those Statutes that thereby the Statutes providing against Processe dated at Rome they might not bee eluded by like Processe dated at Avignion or any other place of the Popes aboade and so the penaltie thereof towardes the offender might become voyde and bee frustrated Neither did the Lawes of this Land at any time whiles the Popes authoritie was in his greatest pride within this Realm ever impute a Praemunire to any Spirituall Subject dealing in any Temporall matter by any ordinary power within the Land but restrained them by Prohibition onely as it is plaine by the Kings Prohibition wherein are the greatest matters that ever the Clergie attempted by ordinary and domesticall authority and yet are refuted onely by Prohibition But when as certaine busie-headed fellowes were not content to presse upon the Kings Regall jurisdiction at home but would seeke for meanes for preferment for forrain authority to controule the Judgments given in the Kings Courts by processe from the Pope then were Praemunires decreed both to punish those audacious enterprises of those factious Subjects and also to check the Popes insolencie that hee should not venter hereafter to enterprise such designments against the King and his people But now since the feare thereof is past by reason all entercourse is taken away betweene the Kings good Subjects and the Court of Rome it is not to bee thought the meaning of good and mercifull Princes of this Land is that the cause of these Statutes being taken away the effect thereof should remain and that good and dutifull Subjects stepping happily awry in the exercise of some part of their jurisdiction but yet without prejudice of the Prince or his Regall power shall bee punished with like rigour of Law as those which were molesters greevers and disquieters of the whole estate But yet notwithstanding the edge of those Praemunires which were then framed remaine sharpe and unblunted still against Priests Jesuites and other like Runnagates which being not content with their owne naturall Princes government seeke to bring in againe that and like forraine authoritie which those Statutes made provision against but these things I leave to the reverend Judges of the Land others that are skilfull in that profession onely wishing that some which have most insight into these matters would adde some light unto them that men might not stumble at them and fall into the danger of them unawares but now to Prohibitions SECT 2. The impeachment thereof by Prohibition and what it is A Prohibition is a commandement sent out of some of the Kings higher Courts of Records where Prohibitions have beene used to be granted in the Kings name sealed with the seale of that Court and subscribed with the Teste of the chiefe Judge or Justice of the Court from whence the said Prohibition doth come at the suggestion of the Plaintife pretending himselfe to be grieved by some Ecclesiasticall or marine Judge in not admittance of some matter or doing some other thing against his right in his or their judiciall proceedings commanding the said Ecclesiasticall or marine Judge to proceed no further in that cause and if they have sent out any censure Ecclesiasticall or Marine against the Plaintife they recall it and loose him from the same under paine of the Kings high indignation upon pretence that the same cause doth not belong to the Ecclesiasticall or Marine Judge but is of the temporall cognisance and doth appertaine to the Crowne and dignitie Of Prohibitions some are Prohibitions of Law some other are Prohibitions of Fact Prohibitions of Law are those which are set downe by any Law or Statute of this Land whereby Ecclesiasticall What are Prohibitions of Law Courts are interdicted to deale in the matters therein contained such as are all those things which are expressed in the Kings Prohibition as are also those which are mentioned by the second of Edward the sixth where Judges Ecclesiasticall are forbid to hold plea of any matter contrary to the effect intent or meaning of the Statute of W. 2. Capite 3. The Statute of Articuli Cleri Circumspectè agatis Sylva Caedua the treaties De Regia Prohibitione the Statute Anno 1. Edwardi 3. Capite 10. or ought else wherein the Kings Court ought to have Jurisdiction Prohibitions of fact are such which have no precise word or letter of Law or Statute for them as have the other but What are Prohibitions of fact are raised up by argument out of the wit of the Devisor These for the most part are meere quirks and subtilties of law and therefore ought to have no more favour in any wise honourable or well ordered Consistorie than the equity of the cause it selfe doth deserve for such maner of shifts for the most part breed nought else but matter of vexation and have no other commendable end in them though they pretend the right of the Kings Court as those other Prohibitions of the Law doe but the Kings right is not to be supposed by imagination but is to be made plaine by demonstration and so both the Statute of the 18. of Edward the third capite 5. is where it is provided that no Prohibition shall goe out but where the King hath the cognisance and of right ought to have and also by the fore-named Statute of Edward the sixth which forbids that any Prohibition shall be granted out but upon sight of the libell and other warie circumstances in the said Statute expressed by which it is to be intended the meaning of the Law-givers was not that every idle suggestion of every Attourney should breed a Prohibition but such onely should bee granted as the Judge in his wisdome should thinke worthy of that favour and if right and equitie did deserve it although as I must needs confesse the Statute is defective in this behalfe for to exact any such precise examination of him in these cases as it is also in other points and is almost the generall imperfection of all Statutes that are made upon Ecclesiasticall causes but I feare mee as emulation betweene the two Lawes in the beginning brought in these multitudes of Prohibitions either against or beside law so the gaine they bring unto the Temporall Courts maintaineth them which also makes the Judges they cesse not costs and damages in cases of consultation although the Statute precisely requires their assent and assignement therein because they would not deterre other men from suing out of Prohibitions and pursuing of the same The Prohibitions of the law as have beene before shewed are neither many nor much repined at because they containe a necessary distinction betweene Jurisdiction and Jurisdiction and imply the Kings right and Subjects benefit but the
of Tythes 181. 182 Judgement civile criminall mixt 6. publick 22. ecclesiastick 79 80 Juglers how to be punished 21 Ivo Bishop of Carnat Compiler of the Decrees 74 Jurisdiction Ecclesiasticall wherein impeached 121. 122. 146. not to be confounded with the temporall 133. 149. 158 Jury of twelve men not requisite to determine which is barren ground 227 228. say nothing but what the Judge dictates ib. mostly partiall because possible parties 229 Jus patronatus what 196 Justices of the peace their office 41 59 Justinian why he compiled the Code 31 K Kingdomes indivisible 113 Kings their Titles given by the Law 103. their supremacie 104. Fountaines from whence is derived Ecclesiasticall jurisdiction as well as Civile 123. with whom resideth the prime power to interpret Statutes 257 258 Knights of how many kindes 105. whether they or Doctors to have precedencie 106 Knutes Lawes 140 L Lands of the Church in what cases they may be aliened let or sold 63. vid. Church what Lands may be given by Will 137 Land-markes not to be removed 21 22 Lanternes upon what occasion invented 197 Lapses upon what occasion induced 199 Lateran Councell when holden and with what successe 171 172 Law what 2. publick private of Nature of Nations ib. the object of the Law 4 5. the multitude inconvenient 32. how to be interpreted 256. without penalties of small force 259. Canon Law what 73. excused ib. how in use with us 114 115. c. Civile Law what 3. most equitable ib. Division of it 4 5. seq how farre in use in this Land 88. seq like a sword in a scabberd 97. the necessitie thereof 272. For Marine controversies ibid. commerce of Princes 273. punishment of spirituall disobedience ibid. Recoverie of Ministers right ibid. Wils Weddings Burials 274. Cases in Chauncerie 275. in the Court of Requests 276. severally impeached by the Common Law 122. in marine matters 228. in Wils 134 135. in Tythes 146. in cases of waste ground 223. of Diffamation 237. of Bastardie 243. how it may be releeved 255. Common Law wherin defective 262 264. how it may bee supplyed ib. The word Law not still taken for the Common Law 158. Law Ecclesiasticall 159. animated by the King 160. not to bee confounded with the temporall ib. of what antiquitie ibid. wherein abbridged 121. how to be releeved 255. seq Saxon Lawes 138 139 140. Salick Law refuted 109. Law of Laps 199 Lawyers why no fees assigned to them 30. Temporall and Ecclesiasticall 159 Lay-men may not celebrate divine Service 66. nor hold Impropriations 214. when they began to hold Tythes in fee 162 163. their ill will to the Clergie 198 Lay-patrons vid. Patron Leases for how long to be let 45. 63 Legacies when due 11. how taken away 12. when to be paid 51. for pious uses 67. unjustly deteined under pretence of debts unknowne 264. what remedie for that abuse 265. vid. Testaments Legataries how defrauded and how they may bee releeved 266 Legates why so called 28. 40. their priviledges ibid. usually Civilians 96 Legitimation of children 58. how made amongst the Romans 246. how with us ibid. Leige-men 72 Lent things if denied how recoverable 7 Letters dimissorie 26 Libell what 19. the Authours and Concealers how punished ibid. Liberall Sciences 29 Like Reason like Law 156 157 Litigious cases what 62 Lombards the first Authors of Feuds 71 Lucius first Christian King of England 142 Lycurgus his uprightnesse 112 M Mad persons how provided for by the Law 11 Magdeburgenses vindicated from mis-allegation 169 Magistrates office 28 29 Mahomet alloweth Tythes 175 Maiors election and office 53 Maintenance of parents and children how it might be provided for 263 264. seq Manner of Tything how to be expounded 180 Manzeres what 244 March grounds 44 Marianus Scotus imperfect 171 Marine affaires 88 89 Marriners priviledges 42 Marriage what 9. 55. within what degrees forbidden 53. why to Priests 253. within the yeare of mourning punishable 55. in the husbands absence 62. impediments of marriage 83. second marriage prejudiciall to the children of the first 263 264. 268 Charles Martel the first in the Christian world that violated the right of Tythes 164. his fact related at large ib. 165. how censured by historians ib. why denied by some omitted by some 166. related by others 167. those French-men 168. 170. whence they had the storie ib. his fact imitated in other Nations 169 170. the vision concerning him 165. whether creditable 170 171 Martiall causes of Ecclesiasticall cognisance 98 Master of the Souldiers 45. of Requests 53. of the Ship 89 Mercie triumphoth over judgement 275 Mere-balkes not to be removed 21 22 Mettals tytheable 217. arguments to the contrary answered 219 220. how they are generated 218. they may renew but seldome doe ib. Micha's Disciples 198 Militarie discipline 48 Minerals vid. Mettall Ministers at what age to bee ordained 65. vid. Clerkes Minors estates how to be disposed of 59 Miracles not so frequent now as formerly 171 Monasteries not to be builded without the licence of the Bishop 51. their priviledges 184. and the bad use of them 185. the restraint thereupon ibid. Monetaries immunitie from service 43 Money why used 224 Monkes life and conversation 51. 184. originall of cloystered Monkes 187 Mother-Church 176 177 Mother-Village 44 Mort-maine the originall of it 183. in severall Nations 185. whence the name ib. now not necessarie ib. Myners immunitie 42 N Names not to be altered 100 Naturales filii who 244 Navigation beneficiall to the Common-wealth 271. requireth the practice of the Civile Law ib. Necessitie of the Civile Law in this Land 271 New-years gifts of ancient use 38 Nicene Canons urged 153 154. hardly escaped the fire of the Arrians ib. their authoritie questioned ib. what exemplary life they require of Monkes 184 Notaries place 46 Nothi who 244. Nothae febres ib. Natalia what 226 Novelles what 50 Nundinae why so called 29 O Oathes of severall kindes 7. of the deceased when good 56. Of women tumblers of no account ibid Obligations how they may bee excepted against 7. how many sorts of them 17 18. by words how released ib. Offences publick and private 18 Officers how to be chosen 41 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 what 191 Oratories in private houses 57 Ordeall fire and water 86 Order of succession 63. who may not take orders 77 Orders of Monkes tythe-free 200 Ordination of Ministers 76 Orphanes estates ill provided for by the Common Law 264 265. but may finde releefe at the Civile 266 P Pagans why so called 215 Pandects what 4. the division thereof 5. seq Parents affection to one childe how moderated 61. greevances how to be releeved 263 Parishes their bounds of Ecclesiasticall cognisance 151. the originall of them 152. 174. the severall acceptions of the word 153 Parliament of whom it consisteth 159. hath sole power to reforme the Statutes 256 Parricides how punished 23 Parts no accessories 233. similar and dissimilar ib. Pope Paschal his