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
in all instruments and the day and yeare when the instrument was made That the Oath of the deceased as concerning the quantitie of his goods so far as it toucheth the diuision of the same among his children be holden for good but that it be in no sort preiudicial to the creditors Of women tumblers such other of like sort which with the feates of their body maintaine themselues that no oath or suertie be taken of them that they wil not leaue that kind of life since such oath is against good maners and is of no validitie in Law That such gifts as are giuen by priuat men to their Prince néed no record but are good without inrolling of them and in like sort such things as are giuen by the Princes to priuat men That no person thing or gold of an other man be arested for another mans debt which they now call reprisals that he which is hurt by such reprisals shall recouer the foure double of the damages that he hath suffered therby and that one man be not beaten or stricken for another That he that cals a man into law out of his Territorie or Prouince where he dwelleth shall enter caution if hee obteine not in the suite against him he shall pay him so much as the Iudge of the Court shall condemne him in And that he who hath giuen his oath in Iudgemēt shal pay the whole costs of the suite but after shall bee admitted to prosecute the same if hee will so that hee put in suerties to performe it That such women as are vnindowed shal haue the fourth part of their husbands substance after his death and in like sort the man in the womans if the man or woman that suruiueth be poore That Churches or Religious persons may change grounds one with another For that one priuiledged persons right ceaseth against another that is in like sort priuiledged That such changes of manors Lands Tenements and Hereditaments as are made by Churchmen to the Prince be not fained matters and so by the Prince come to other mens hands who haue set on the prince to make this change and that the change be made to the Princes house only and if the Prince after conuey or confer the same vpon any priuat man it shall be lawfull for the Church to reenter vpon the same againe and to reposseed it as in her former right That in greater Churches Clerkes may pay something for their first admittance but in lesser Churches it is not lawfull That such as build found or indowe Churches which must goe before the rest doe the same by the authoritie of the bishop and that such as are called patrons may present their Clarkes vnto the Bishop but that they cannot make or ordaine Clerkes therein themselues That the sacred misteries or ministeries bee not done in priuate houses but bee celebrated in publicke places lest thereby things be done contrarie to the Catholicke and Apostolicke faith vnlesse they call to the celebrating of the same such Clerkes of whose faith and conformitie there is no doubt made or are deputed thereto by the good will of the Bishop but places to pray in euery man may haue in his owne house if any thing be done to the contrarie the house wherein these things are done shall be confiscated and themselues shall be punished at the discretion of the Prince That neither such as be dead nor the Corse or Funerall of them be iniured by the creditors but that they bee buried in peace That womens Ioyntures be not sold or made away no not euen with their owne consent In what place number forme maner and order the princes counsell is to sit and come together That he that is conuented in iudgement if he wilfully absent himselfe may be condemned after issue is ioyned That no man build a Chappell or Oratorie in his house without the leaue of the bishop and before he consecrate the place by praier and set vp the Crosse there and make Procession in the place and that before he builde it he allot out lands necessarie for the maintenance of the same those that shall attend on Gods seruice in the place and that Bishops be not non-residents in their Churches That all obey the Princes Iudges whether the cause bee Ciuill or Criminall they iudge in and that the causes be examined before them without respect of persons and in what sort the Processe is to be framed against such as be present and how against those that be absent The sixt Collation sheweth by what means children illegitimate may be made legitimat that is either by the Princes dispensation or by the fathers Testament or by making instruments of marriage betwéene the Mother and Father of the children so that the Mother die not before the perfecting of them or that she liue riotously with other men and so make her selfe vnworthie to be a wife That Noble personages marry not without instruments of Dowrie and such other solemnities as are vsuall in this behalfe that is that they professe the same before the bishop or minister of the place and thrée or foure witnesses at the least and that a remembrance thereof be left in writing and kept with the Monuments of the Church but that it shall not bee needfull for meaner persons to obserue the former solemnities That such as were indebted to the Testator or they to whom the Testator was indebted bee not left Tutors or Gardeins to their children that if any such bee appointed a Tutor a Curator bee ioyned to him to haue an ouersight of his dealing that Tutors or Curators are not bound by Law to let out the Minors money but if they do the interest shall be the Minors and the Tutor shall haue euery yeare two moneths to find out sufficient men to whom hee may let the money out to hyer for that it is let out at his perill that if the Minors state be great so that there will bee a yearely profit aboue his finding the Tutor shall lay vp the residue for a stock against he comes to age or buy land therwith if he can find out a good bargaine and a sure title but if the childs portion be small so that it will not find him then the Tutor or Curator shall dispose of the Minors state as he would dispose of his owne to which also hee is bound by oath How such instruments are inrolled before Iudges as concerning matters of borrowing and lending and such like may haue credit how men may safely bargaine either with writing or without writing if themselues be ignorant men and of the comparison of Letters and what credit there is to be giuen to an instrument when the writings and witnesses doe varie among themselues Of vnchaste people and such as Riot against nature whose punishment is death Of such as dispitefully on euery light trifle sweare by God and blaspheme his holy name against whom also is prouided the sentence of death That the
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
trauersable so it be not in Criminall matters where time and place is required that the accuser doe not wander from place to place with the iniurie of the accused for howsoeuer the place and the action is altered yet the truth of the cause remaineth one and the selfe same still and so far as concerning actions of Trouer in Admirall causes Now it doth follow that I should speak of like preiudices that grow to the same by actions of Trespas but those will I passe ouer for that in so small a Treatise as this is I cannot go ouer all and therefore will I only put the Reader in mind that there are more deuises rising out of the Common Law that infest the Admiraltie than one But now to Wils and Testaments wherein they are impeached For matters of Wills and Legacies they are so proper to the triall of the Ecclesiasticall Law of this Realme as the professors of the Common Law themselues do oftentimes confesse and say they haue no more to doe therewith than the Ciuilian hath to doe with the knowledge of the matters of Franktenement and yet euen these matters of Testaments Legacies although Prohibitions be not so frequent in them as they are in the rest of Ecclesiasticall causes yet they are not quite void of them and that in some points wherein the verie life essence of a Will doth stand For whereas the auncient Romanes knowing how subiect matters of Wils are to forgerie corruption on the one side and suppression concealment on the other side to méet with all craft subtilty whatsoeuer which might seize on them did most carefully prouide that there should be seuen witnesses at the least present at the making of euery Will Testament except it were in time of some generall plague or sicknesse when so many Witnesses could not conueniently be had together for feare of infection or if it were in the Countrie where there are small multitude of people and that those witnesses should be particulerly required to that purpose with diuers other obseruations and circumstances tending all to the safe and sure making thereof which the Ecclesiasticall Law altered afterward in sundry points for that many true Wills were many times ouerthrowen for want of those precise solemnities reduced the whole number of those seuen witnesses vnto two only agreeably to the Law of God the Law of Nations where that number of witnesses is allowed as competent to prooue any matter so that the same witnesses be honest credible persons such as whose faith is not doubted of The Common Lawyers because themselues in sundry matters very dangerously many times admit one witnesse giue him full credit and that in matters of great waight importance as though all should be squared to their rule and framed to their compasse If an Ecclesiasticall Iudge in the probate of a Will contrarie to the rules of his owne Law will not admit the testimonie of one witnesse they forthwith fling out a Prohibition against him as though he had done an offence against the Crowne and dignitie in that he doth not allow those number of witnesses in the Probate of a Will that the Common Lawes of this land allow almost in euery matter For aunswere to which if I should alleage the precise forme of the Ecclesiasticall Law which to the essence of a will requireth this number of two witnesses or else holdeth it not for a Will but in cases inter liberos ad pios vsus where the only hand of the Father or Testator without witnesses serueth for a Will so the same be knowen to be the Testators owne hand or so prooued by comparison I would think to wise men I had said sufficiently but I will not rest hereupon but will conuince themselues by themselues for doe they I pray you in their owne procéedings where a Law or Statute requires more witnesses than one content themselues with one witnesse alone yea doe they not in all cases where a certeine number of witnesses are appointed to prooue a fact by Law or statute furnish the cause with so manie witnesses as the case desires or else doe they not accompt the procéeding void And will they think themselues so precisely bound to the kéeping of the letter of the Common law and will they not suffer the Ciuilian in like maner to cleane fast to the obseruation of the Ciuile Law especially when it hath the consent of the Law of God the Law of Nations and is his Maiesties Ecclesiasticall Law of this land aswell as the other is his Temporall Law of the same I confesse it may be true many times which one man saith specially when there concur therewith many great and violent presumptions and the party that reporteth it is of good credit but dangerous it is to open this gap to the malice of men for euen so many things shall be obtruded to the Iudge for trueth which are stark lyes and many things shall be pretended to be gold in shew which in proofe and practize will L. iuris urandi §. Simili modo C. de Testibus be found to be no other thing but méere drosse And therefore well decréed the Emperor Constantine that no one mans testimonie should be heard though he were neuer so great a man in Court But perhaps some man will say if credit shall not be giuen oftentimes to one mans testimonie much wickednesse will passe away vnpunished for reply to which I aunswere it is better to let a bad man scape than to punish a good and although it be true if a man may excuse himselfe by deniall no man will be found guiltie so also it is true on the other side if it be ynough to condemnation to be charged by one man alone without any other witnesses no man shall be innocent and therefore the admittance of one witnesse in causes and the procéeding thereupon to iudgement is verie dangerous An other like bar to this they lay in against Ecclesiasticall procéedings in matters of Testament whereas an Ecclesiastical Iudge prooueth a Will wherein are mannors lands tenements and other like hereditaments bequeathed challenging this also to be of the Crowne and dignity as though the Ecclesiasticall Iudge thereby tooke vpon him to decrée which lands were deuisable by will and which not or would by his probat adde a strength vnto the Will to make the deuise good or bad whereas on the contrarie part the Ecclesiasticall Iudge by this act doth only testifie that such a person made such a will that the same was prooued before himselfe vnder his Teste for his last will testament but for the validitie of the Will it selfe and the Legacies deuises therein whether they were of lands or tenements or of goods or chattels the Probat it selfe worketh nothing but leaueth that to the Law Common or Ecclesiastical according as the bequest belongeth to either of them whether it be good vailable in
the Ecclesiastical Law taketh place it was reiected by the Earles and Barons with one voice and answere made that they would not change the Lawes of the Realme in that point which to that time had bin vsed and approued All these cases of Bastardie in other Lands whither they be such or not such are triable by the Ecclesiasticall Law But here with vs it is questionable to what Law and how far they doe appertaine the Ecclesiasticall or Temporall For the matter of Bastardie what it is the Ecclesiasticall Law the Temporall differ not but there is a diuersitie betwéene them in the prosecution therof for the Ecclesiasticall Law bringeth it two waies in Iudgement the one incidently the other principally but the Common Law maketh two sorts thereof the one generall the other speciall But first of the Ecclesiasticall diuision then of the temporall Bastardie is then said to be incidently propounded when it is laied in bar of some other thing that is principally commensed as when one sueth for an inheritance that he pretendeth is due vnto him by his natiuitie an other crosseth him therein by obiecting against him bastardie with purpose to exclude him from his action in the inheritance here the barre is in the incident because it comes exclusiuely to the action of inheritance but the action for the inheritance it selfe was in the principall for that it was begun in consideration of the inheritance and not with intent to proue himselfe legitimate which happilie he neuer dreamed of when he first entered his action for the inheritance In which case he which is charged with the bastardie may require himselfe to be admitted to proue himselfe legitimate before the Ecclesiasticall Iudge to be pronounced to be such a one Ad Curiam enim Regiam non pertinet agnoscere de Bastardia Glanuill Lib. 7. cap. 13. Against which the Law of the Land doth not oppose it selfe but acknowledge it to be the right of the Church And yet to auoid all subtil surrepticious dealing in this behalf it hath 9. Hen. 6. cap. 11 set downe a wary and cautelous forme of procéeding by which the same shall be brought vnto the Ordinary such as haue interest in the suit may haue notice therof and time to obiect in forme of Law against the proofes and witnesses of him that pretends himselfe to be Mulier if they so think good and what shall be certified herein by the Ordinarie as concerning the natiuitie of him that is burthened to be a Bastard that is whither he were borne before or after his Glanuill Lib. 7. cap. 15. Parents marriage shall be supplied in the kings Court eyther by Iudging for or against the inheritance But Bastardie is then taken to be principally propounded when eyther one finding himselfe to be gréeued with some malicious spéech of his aduersary reproching him with bastardy or himself fearing to be impeched in his good name or right doth take a course to cléere his natiuitie by calling into the law him or them by whom he is reproched or feareth to be impeached in his right and credit to see him to prooue himself legitimate to alleage obiect against it if they oght haue or can to the contrarie which if eyther they doe not or doing to the vtmost what they can can bring no good matter against his proofe but that it stands still good and effectuall in Law to all intents purposes whatsoeuer although perhaps hereby he shall not be able to carry the inheritance both for that it apperteineth not to the Ecclesiasticall Law to Iudge of lands tenements or hereditaments also for that there is a precise forme set downe by statute how suits of this nature shall be recouered yet if no oppositor or contradictor appeare herein the suit was only taken in hand against such as eyther openly reproched him or secretly buzzed abroad slanderous spéeches as concerning his legitimation it is not to be doubted but by an accident also it wil be good for the inheritance it selfe for where a mans legitimation is sufficiently prooued thereon followeth all things which naturally thereto belong But if any man vrge the forme of the statute 9. Hen. 6. cap. 11. being interessed therein then must it necessarily be followed for that otherwise it would be thought all that was done before so far as it may concerne the inheritance although it were but in a consequence were done by collusion This kind of procéeding hath bin much more in vse in former times than it is now neuer any opposition made against it but now it goeth not altogether cléer without contradiction as many other things are offensiuely taken which notwithstanding haue good ground sufficient warrant for them And so far as concerning the Ecclesiasticall procéedings in this businesse Now to the temporall sorts of them Generall Bastardie is so called because it comes in incidently and is in grosse obiected against some that sueth in a matter principall to disappoint his suit This suit because it is of the Ecclesiasticall cognisance it is sent by the Kings writ to the Ordinary with certeine additions for more perspicuitie of the inquirie thereof as that whether he that is charged with the Bastardie were borne in lawfull Matrimonie or out of Matrimonie or whether he were borne before his Father Mother were lawfully contracted together in Matrimonie or after All which the Ordinarie makes Lib. Intrac fol. 35. inquirie vpon by his owne ordinarie and pastorall authoritie for that matters of Bastardie doe originally belong to the Ecclesiasticall Court and not to the Temporall Court And as he findes the trueth of the matter by due examination to be thus or that so he pronounceth for the same in his owne Consistorie and makes certificat thereupon to the kings Court accordingly and as he pronounceth so the temporall Iudges follow his sentence in their Iudgements eyther for or against the inheritance that is in question Speciall Bastardy they say is that where the Matrimony Bracton is confessed but the prioritie or posterioritie of the Natiuitie of him whose byrth is in question is controuersed which to my thinking if I conceiue aright is no other thing than the generall bastardie transposed in words but agreeing in substance matter with the other for euen these things which they pretend make speciall Bastardie are parts and members of the generall bastardie and are eyther confessed or inquired vpon by vertue of the Kings writ in the same For first for the Matrimonie that is here mentioned it is there agnised both by the plaintife in pleading of it and the defendant in the answering thereto therefore the plaintifes plea is thus thou art a bastard for that thou wast borne before thy parents were lawfully contracted together in Marriage or before theyr marriage was solemnized in the face of the Church to which the defendants replie is I am no bastard for that I was borne in lawfull
Court then needed not this complaint that now is but euery Iurisdiction should peaceably hold his owne right such as the Prince Law or Custome hath afforded vnto it THOMAS RIDLEY The contents of this Booke THE Diuision of the whole booke into foure parts pag. 1. What right or Law is ingenerall 1. What is the Law publicke and what the Law priuat 1. 2. What is the Law of Nature 2. What is the Law of Nations 2. What the Law Ciuile 2. That there be foure Tomes of the Ciuile Law The Digest the Code the Authentick and the Feuds 3. The Institutes are an Epitome of the Digest 3. What is the Digest and why it is so called and why the same are called the Pandects 3. What are the Institutes and why they are so called 4. The Pandects or Digest are diuided into seuen parts and they againe into fiftie Bookes 4. That the first part thereof conteineth foure Bookes and what is the sum thereof 4. That the second part hath eight books and what is the contents thereof 5. That the third part stretcheth it selfe into eight bookes and what they contein 6. That the fourth part containeth eight bookes and the contents thereof 7. That the fift part comprehendeth nine bookes and the matter thereof 9. That the sixt is spent in seuen bookes and the subiect thereof 11. That the seuenth part is diuided into six books and the matter thereof 15. The second Volume of the Ciuile Law is the Code which is distributed into twelue bookes 27 Why the Code is so called 28 The Argument of the first booke of the Code 30. 31. 32 The 2. 3. 4. 5. 6. 7. 8. 9. booke of the Code containe like Titles as were handled in some one or other book of the Digest except onely a few as De Edendo de Indicta viduitate de Caducis Tollendis and some other small number beside 33 The Contents of the tenth booke of the Code 33. 34. 35. 36. 37. The Argument of the eleuenth booke of the Code 38. vsque ad pag. 41. The matter of the twelfth booke of the Code 41. The Authenticks are the third Volume of the Ciuile Law and why they are so called 45. That the Authenticks are diuided into 9. collations 45. What is the sum of the first Collation 46. What is the matter of the second collation 47. What of the third 48. What of the fourth 49. What of the fifth 50. What of the sixt 52. What of the seuenth 54. What of the eighth 55. What of the ninth 56. That the feuds are the fourth and last volume of the Ciuile Law 61. What a Feud is why it is so called and who were the first authors thereof 61. 62. How many kind of Feuds ther be viz. Temporal or perpetuall 62. 63. What is a Temporall Feud 63. What a perpetuall Feud 63. Perpetuall Feuds are gotten either by inuestiture or by Succession 63 What is Inuestiture 64 What is Succession 64 Of perpetual Feuds some are Regal some other not regal 65 What are Regall feuds 65 That of Regall Feuds some are Ecclesiasticall some Seculer and what either of them are 65 What be not Regall Feuds 65 Beside of Feuds some are Liege some other not Liege and what either of them are 65 What be vassals or liegemen and how many sorts there bee thereof 65 What be Valuasores Maiores and what Minores 65 By how many waies a Feud is lost 65 What is the Canon Law and that there are two principall parts thereof the Decrees and the Decretals 66 What be the Decrees and whereof they are collected and who was the author thereof 66 That there be two parts of the Decrees the Distinctions and the causes 66 What the Distinctions doe containe and what the causes 67 What be the Decretals and whence they are gathered 67 That there be three volumes of the Decretals the one called the Decretals of Gregory the ninth the other the sixt the other the Clementines who be the authors thereof when they were first set out 68 That each of them is diuided into fiue bookes 68 What the first booke of the Decretals comprehendeth 68. 69. 70. What the second 71. 72 What the third 73 What the fourth 74 What the fift 75. 76. 77 That the things the Ciuile Law is conuersant in here in this Realme are either ordinarie or extraordinarie 78 Of the ordinarie some are Ciuile some other are criminal 79 Ordinarie Ciuile matters are all Marine matters pertaining to the ship it selfe or any part thereof and all contracts betweene partie and partie concerning things done vpon or beyond the sea 79 Of shipwracks which notwithstanding are so of the cognition of the Ciuile Law within this Realme as that they are granted by the Kings Commission to the Lord Admirall and other which haue like Iurisdiction 83 The maner of proceeding in Ciuile Marine matters 84 Of Piracie and what it is which also is held by the Regall Commission and the maner of proceeding therein 85 Of extraordinarie matters belonging to the Ciuile law within this Land by the benefit of the Prince 86 Negotiation betweene Prince and Prince and the treatie thereof 86 Martiall causes in an Armie Ciuile or criminall and the ordering of them both 87 The bearing of Armes and the ranging of euery one into his roome of honor and the diuersitie of them and how they are to be come by 89 Of the diuersitie of colours in bearing Armes and which is the chiefest of them 91. 92 Of Emperours and Kings and the great Epithites they haue in the Ciuile Law 92 Of Precedencie and Protoclisie in great persons next after the Emperour and King 93 Of Knights and Doctors of Law and their precedencie 95 Of Esquires and Gentlemen 95. 96 Of great personages how they succeed each other in inheritance and other places of honour 97 Of womens gouernment and the defence thereof 98 Certaine questions in Succession betweene a brother borne before his fathers Kingdom and a brother after who shall succeed 100 Questions between the Kings second son liuing at his fathers death and the eldest brothers son his father dying before the Kings death who shall succeed 101 Of the Tytles of the Canon law in vse or out of vse among vs. 102 Some out of vse by reason of the palpable Idolatrie they conteined 103 Some other out of vse because they were contrarie to the laws of the land 103 Of Bishops Chauncelors their Office and Antiquitie 104 Of those Tytles that are absolute in vse among vs recited by Doctor Cousen in his Apologie for Ecclesiasticall proceeding 109 How the exercise of the Ciuile and Canon Law is impeached within this Realme and by how many waies 109 What is a Premunire 109 That Ecclesiasticall Iudges executing the Kings Ecclesiastical Law cannot be within the compasse of a Premunire as Prem is vnderstood by the statut of R. 2 and H. 4. 110 That the word Elswhere in the said statuts cannot be vnderstood 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
the same word Elsewhere is to be ment and conceiued of the places of remoue the Popes vsed in those dayes being somtimes at Rome in Italy sometimes at Auignion in France semetimes in other places as by the date of the Bulls and other processe of that age may be séene which seuerall remoues of his gaue occasion to the Parliament of inserting the word Elsewhere in the bodie of those Statutes that thereby the Statutes prouiding against Processe dated at Rome they might not bée eluded by like Processe dated at Auignion or any other place of the Popes aboade and so the penaltie thereof towardes the offender might become voyd and be frustrated Neyther did the Lawes of this Land at any time whiles the Popes authoritie was in his greatest pride wythin this Realme euer impute Praemunire to any Spirituall Subiect dealing in anie Temporall matter by any ordinarie power wythin the land but restrained them by Prohibition only as it is plaine by the Kings Prohibition wherein are the greatest matters that euer the Clergie attempted by ordinarie and domesticall authoritie and yet are refuted only by Prohibition But when as certeine busie-headed fellowes were not content to presse vpon the kings Regall iurisdiction at home but would séek for meanes for preferment by forrein authoritie to controul the Iudgements giuen in the kings Courts by processe from the Pope then were Premunires decréed both to punish those audacious enterprises of those factious Subiects and also to check the Popes insolencie that he should not venter hereafter to enterprise such designements against the King and his people But now since the feare thereof is past by reason all entercourse is taken away betwéene the Kings good Subiects and the Court of Rome it is not to be thought the meaning of good and mercifull Princes of this land is the cause of these Statutes being taken away the effect thereof shall remaine and that good and dutifull subiects stepping happily awry in the exercise of some part of their Iurisdiction but yet without preiudice of the Prince or his Regall power shall be punished with like rigor of Law as those which were molesters gréeuers and disquieters of the whole estate But yet notwithstanding the edge of those Premunires which were then framed remaine sharpe and vnblunted still against Priests Iesuits other like Runnagates which being not content with their owne natural Princes gouernment séek to bring in againe that and like forrein authoritie which those Statutes made prouision against but these things I leaue to the reuerend Iudges of the land and others that are skilfull in that profession onely wishing that some which haue most insight into these matters would adde some light vnto them that men might not stumble at them and fall into the daunger of them vnawares but now to Prohibitions A Prohibition is a commaundement sent out of some of the Kings higher Courts of Records where Prohibitions haue bin vsed to be graunted in the Kings name sealed with the seale of that Court and subscribed with the Teste of the chiefe Iudge or Iustice of the Court from whence the said Prohibition doth come at the suggestion of the Plaintife pretending himselfe to be grieued by some Ecclesiasticall or marine Iudge in not admittance of some matter or doing some other thing against his right in his or their iudiciall procéedings commaunding the said Ecclesiasticall or marine Iudge to proceed no further in that cause if they haue sent out any censure Ecclesiasticall or Marine against the plaintife they recall it and loose him from the same vnder paine of the Kings high indignation vpon pretence that the same cause doth not belong to the Ecclesiasticall or Marine Iudge but is of the temporall cognisance and doth appertaine to the Crowne and dignitie Prohibitions some are Prohibitions of Law some other are Prohibitions of fact Prohibitions of Law are those which are set downe by any Law or Statute of this Land whereby Ecclesiasticall Courts are interdicted to deale in the matters therein contained such as are all those things which are expressed in the kings Prohibition as are also those which are mencioned by the second of Edward the sixt where Iudges Ecclesiasticall C. 13. 2. Edw. 6. are forbid to hold plea of any matter contrarie to the effect intent or meaning of the statute of W. 2. Capite 3. The statute of Articuli Cleri Circumspecte agatis Sylua Cedua the treaties De Regia Prohibitione the Statute Anno 1. Edwardi 3. Capite 10. or oght else wherein the Kings Court ought to haue Iurisdiction Prohibitions of fact are such which haue no precise word or letter of Law or Statute for them as haue the other but are raised vp by argument out of the wit of the Deuiser These for the most part are méere quirks and subtilties of law and therfore ought to haue no more fauour in any wise honourable or well ordered Consistorie than the equity of the cause it selfe doth deserue for such manner of shifts for the most part bréed nought else but matter of vexation and haue no other commendable end in them though they pretend the right of the Kings Court as those other Prohibitions of the law doe but the Kings right is not to be supposed by imagination but is to be made plaine by demonstration and so both the Statute of the 18. of Edward the third Capite 5. is where it is prouided no Prohibition shall goe out but where the King hath the cognisance and of right ought to haue and also by the forenamed Statute of Edward the sixt which forbids that any Prohibition shall bee graunted out but vpon sight of the libell and other warie circumstances in the said Statute expressed by which it is to bee intended the meaning of the Lawgiuers was not that euery idle suggestion of euery Attorney should bréed a Prohibition but such onely should bee graunted as the Iudge in his wisdome should thinke worthy of that fauour and of right and equitie did deserue it although as I must déeds confesse the Statute is defectiue in this behalfe for to exact any such precise examination of him in these cases as it is also in other points and is almost the generall imperfection of all statutes that are made vpon Ecclesiasticall causes but I feare me as emulation betwéene the two lawes in the beginning brought in these multitudes of Prohibitions either against or beside law so the gaine they bring vnto the Temporall Courts maintaineth them which also makes the Iudges they cesse not costs and damages in cases of of Consultation although the statute precisely requires their assent and and assignement therin because they would not feare other men from suing out of Prohibitions and pursuing of the same The Prohibitions of the law as haue beene before shewed are neither many nor much repined at because they containe a necessarie distinction betwéene Iurisdiction and Iurisdiction and imply the kings right and subiectes benefit but the