Corporations as the Princes Bakers Vintners Paper-sellers Money-changers professours of Liberall Sciences specially in Rome and Constantinople which after the seate of the Empire was translated thither had all the priviledges of old Rome saving the Ecclesiasticall primacie for which notwithstanding there was long dissension betweene the two Cities Next after Rome and Constantinople * Nullius reiâ—diga as Patricius hath it In the Emperours dayes it was much renouned for the study of the Law Digest Proem § Haec autem unde Impp. Theodosius Valent AA eam urbem Metropolitano nomine ac dignitate exornârunt as Bâ—sson relatetâ— Beritus a chiefe Citie of Syrophâ—nicia had great priviledges for the famous Universitie which was in the same and such Provinces or Countries as served the same or any of them with yearly provision of Corne Oyle Beefe Mutton Porke and such other like victuall which provision was to be distributed among the poore and impotent of the cities and not to be given to stout and valiant beggers which are able to get their living with their owne hands and therefore were to be compelled to worke The Aldermen or Governours of Cities for that they are imployed in matters of greater services yet none of them were to be called to any office before he had beene even with the common-wealth if happely any of them were in debt to it neither were they or any of them excused more than from personall services but in prediall duties they paid every one according to his rate But as for Enterlude-players and houses of baudery they had no exemption at all but paid double charges to the rest Of Husband-men some are servants as Copy-holders others are free as Free-holders who notwithstanding themselves are as it were bound unto the soyle and are rated in the Subsidie according to their Acres and if they have no Land then according to the head or number of their houshold which notwithstanding at this day is taken away and these as well pay rent to the owners of the ground wherein notwithstanding the Landlord cannot exact of them or charge them above that which hath beene covenanted betweene them as Tribute and Head-silver to the common-wealth for the declining of which and avoiding of necessary services of the common-wealth as no man can put himselfe under the patronage of any Noble man so also they cannot be called from this service 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 derived 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 an other mans due for that it is a thing unlawfull 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 Romans 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 Levellers or Surveyors who considered the rate set downe mended it and made it even easing such persons or grounds as were over-rated and charging more deepely such others as were overlightly taxed procuring that such grounds as were waste and barren should be brought to tillage and that the barren should be joyned with the fruitfull that by such meanes the Prince might receive subsidie out of both March-grounds and such as lie in the bounds of any kingdome serve 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 a yeerely provision or pension for the same as also the Princes pastures woods and forrests which are let out upon a certain yeerely rent either for a certain time or in fee farme for ever which in respect they pay an ordinary payment to the Prince either in money or in provision are discharged from all other ordinary and extraordinary burthens Publick things are those which appertain to the Exchequer or to the Church which may in like sort be rented out for a season or for ever as the possession of the Exchequer may so it be done to the certain benefit of the Church and under such solemnities as in this case are required otherwise it cannot be let out but for 30. years or for three lives Fee-farme is when lands and tenements or other hereditaments are let out for ever under a certain yearly rent in reacknowledgement of the soveraigntie thereof belonging still to the first Lord whereby both the right and possession passeth to the former in fee. SECT 5. The Matter of the 12. Booke of the Code THe third and last of these Bookes treateth of the honours that the Exchequer giveth of which the first and chiefest was the Pretorship which anciently was a great dignity but after became an idle name onely and a burthen to the Senators as in which at their owne charges they were to set out playes and shewes and gave unto the Emperour in consideration of his or their glebe land a certain quantity of gold called Aurum glebale or if they had no glebe land then offered they to the Emperour an other peece 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 scattering money among the people but by cleere suffrages and desert After the Consulship came in place the Constable or Master of the Souldiers and those which were called Patricii for that their fathers had beene Senators whose place under Augustus was equall to the Consuls although they were in no office and function of the common-wealth and the other is not so much an administration as a dignity as the Senatorship anciently was into the which who that were admitted were accounted as Parents to the Prince and Fathers to their Countrey Fourthly in place were the Princes Chamberlaines who were adorned with sundry priviledges and had the title of honour Fiftly followed the Treasurer who was Master of all the receipts and Treasure of the Prince publick or private and of all such officers as were underneath him Then the Prenotary chief Notary or Scribe of the Court who was called Primicerius To this purpose note that the Ancients for want of those more proper materials which Experience hath discovered to our times were wont to write in waxen Tables as may be observed out of the Junior Plinie in an Epistle to Tacitus Lib. 1. Epist Note also that upon occasion given for inrolling of their names who bare any office or dignity the use was to set the highest degrees in primâ cerâ in the first place of the Table from hence
rest shall cease Neither if the Master of the ship himselfe by violence of the tempest shall lose a Maste or a Saile shall hee be more allowed therfore than a Carpenter to whom a house is let out to be built shall be allowed for his axe or sawe if hee breake it Beside in matters of wrack there is as it were a contract betweene them which have lost their goods by shipwracke and them upon whose Lands the said goods are-driven that the same be restored to them or their heires if they come in due time to claime the same and therefore it is precisely forbid by the Law that no man shall meddle with such L. ne quid ff de incendio ruina naufragio goods as are wrecked and such as are proved to have stolne any thing thereout are holden for robbers for that such goods being cast on land recovered out of the sea remain still his who was the owner thereof and descend upon his heire neither excheat unto the King neither to any other whom the King hath priviledged in this behalfe And therfore L. 1. lib. 11. C. de naufragiis the Emperour Constantine the great saith worthily in this case If any ship at any time by shipwracke be driven unto the shoare or touch at any land let the owners have it and let not my Exchequer meddle with it for what right hath my Exchequer in another mans calamitie so that it should hunt after gaine in such a wofull case as this is And yet if no kindred appeare within a yeare and a day or appearing prove not the goods shipwracked to be theirs the goods come to the Exchequer even by that Law so much that law condemneth carelesnesse which is written Vigilantibus non dormientibus And with this agree the Lawes of this Land as taken out of these imperiall lawes whereby it is ordered that such goods as are saved out of the wracke shal be kept by the view of the Sherife or some other chiefe Officer and delivered to the hands of such as are of the place where the goods were found so that if any sue for them prove them to be his or to have perished in his keeping they shall be restored unto him without delay otherwise they escheat unto the King or to him to whom the King hath granted the same And if any convey away any part of the same goods contrary to the law and be attainted thereof he shall be awarded to prison and make fine at the Kings will and yeeld dammages unto the party grieved and a wrecke by the lawes of this land is where all living things within the ship doe perish * Mes si ud homme ou un chien â—u câ—tte escape â—iue i 〈…〉 t que le partiea que les biens sont veigu deins lan jour procue les biens destreses il avera eux arere per provision del Statute de Westminst I. cap. 4. fait en les â—ours del Râ—y E F. 1 but if a man a dog or a cat doe scape out of the ship alive it is otherwise For matters of contract they are either in the petitorie or in the Possessorie The Petitorie is where the property of any thing is challenged this of all other suites Institut de rerum dimissione § singulorum ff de acquirendo rerum dominio l. adeo toto 〈…〉 ul C. de qua driennij prescript l. bene is the hardest because the proofe thereof is very difficill for albeit the propertie of things may bee got by many meanes as well by the law Civill as by the law of Nations yet it is not a thing so easie to be proved for that there must concur many things to the proofe of a property otherwise you shall faile in your suit as in a case of bargaine and saile that there was such a contract between 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 C de 〈…〉 uirend possess l. 1. ext c. 1. de consuetudâ—n that delivery was made thereof otherwise the property passeth not but onely in some few cases in which neither possession nor delivery is required Lastly that he which sold it was rightfull owner of it otherwise can he not passe over a thing he had no right unto The Lordship or property of things is bipartite for either it is direct or full such as men have when they have not only the thing it selfe whereof they are Lords or Proprietaries but also the use and commodity thereof or else it is profitable as is the hold of Tenants and Farmers who have the use gaine and possession of the thing but the Lord the property and rent in acknowledgement of his right and Soveraignty The Possessorie is that right whereby the use or possession of a thing is claimed of which there be three sorts for it is either in getting of the possession of that a man hath not or in keeping of the possession of that a man hath or in recovering and regaining of the possession of that which is lost The proceeding in all these Civile matters is by Libell concluding to the action the partie agent giving caution to prosecute the sute and to pay what shall be judged against him if he faile in the sute the Defendant on the contrarie part securing his adversarie by sufficient suertie or other caution as shall seeme meete for the present to the Judge that he will appeare in Judgement and will pay that which shall be adjudged 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 Judgement is which is nothing else but a course to secure the adversarie of that which is in debate before the Judge that on what side soever the cause shall have an end the clients may be sure to get that which by law shall be adjudged unto them SECT 3. What are the Criminall marine matters whereof the Law Civile holdeth plea heere with us and what proceeding they have ANd so much of those Civile Marine matters whereof the Civile Law heerè in England usually holdeth plea. 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 Piracie detested of God and man the actors werein Tully calleth Enemies to all and to Cicer. 3 lib off whom neither faith nor oath is to be kept Piracie is called of the Greeke word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is * In an Attick sense for they said 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and from this sense 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pirates as the Scholiast of Sophoâ—les hath noted upon Ajax Deceptio in Latin and in English Deceipt for that many times they pretend friendship when they intend nothing
translate unto themselves matters of Marine triall if they be squared to these Rules of Fictions can bee maintained for first to speake of equitie which the Law requires in these manner of proceedings what equitie can it be to take away the triall of such businesse as belongeth to one Court and to pull it to an other Court specially when as the Court from whence it is drawne is more fit for it both in respect of the fulnesse of knowledge that that Court hath to deale in such businesse and also of the competencie of skill that is in the Judges Professours of those Courts correspondent to these causes more than is in the Judges and Professours of the other Courts for the deciding and determining of these matters For albeit otherwise they are very wise and sufficient men in the understanding of their owne profession yet have they small skill or knowledge in matters pertaining to the Civile profession for that there is nothing written in their Bookes of these matters more than is to be gathered out of a few Statutes of former time whose drift was not to open any doore unto them to enter upon the admirall profession but to preserue the Kings Jurisdiction from the Admirall incroachment as may by the said Statutes appeare whereas contrarily the Civile Law hath sundry titles included in the body thereof concerning these kindes of causes whereupon the Interpreters of the Law have largely commented and others have made severall Tractates thereof So that by all likelihood these men are more fit and better furnished to deale in this businesse than any men of any other profession as having besides the strength of their owne wit other mens helpes and labours to relie upon Besides this businesse many times concerns not only our owne countrey-men but also strangers who are parties to the suit who are borne and doe live in countries ordered by the Civile Law whereby they may bee presumed to have more skill and better liking of that Law than they can bee thought to have of our Lawes and our proceedings and therefore it were no indifferencie to call them from the triall of that Law which they in some part know and is the Law of their countrey as it is almost to all Christendome besides to the triall of a Law which they know in no part and is meere forraine unto them specially when the Princes of this Land have anciently allowed the Civile Law to be a Common Law in these causes as well to their owne subjects as it is to strangers Further the avocating away of causes in this sort from one Jurisdiction to another specially when the cause hath long depended in the Court from whence it is called insomuch as now it is ready for sentence or rather is past sentence and stands at execution cannot be but great injurie to the subject after so much labour lost and money spent in waste to begin his suit anew againe which is like to Sysiphus punishment who when he hath with all his might forced his stone up to the top of the hill and so is as himselfe hopes at an end of his labour yet the stone rowles downe again on him and so his second labour his strength being spent with the toyle of the first is more grievous than the former was which being semblably true in a poore Clyent who hath his cause in hearing there can be no equity in this fiction whereby a cause so neere ended should againe be put upon the Anvill as though it were still rough worke and new to be begun And surely as there is no equity in it so there is no possibility such a fiction should be maintained by Law for that it hath no ground of reason to rest his feete on For if this be granted that such a fiction by Law may be made then one of these absurdities must needes follow either that a shippe may arive in a place where no water is to carry it or if that it arive according to the fiction either the people their houses and their wealth shall be all overwhelmed in the water as the world was in Noahs Floud Ducalions Deluge and so no body there shall be left alive to make any bargain or contract with the Mariners Shipmen that arive there or that the people that dwell there shall walk upon the water as people doe on land which Peter himselfe was not able to doe but had suncke if Christ had not reacht his hand unto him and therefore far lesse possible for any other man to doe So that it may bee well said these things standing as they doe no such fiction can hold and that no action can be framed upon it for as there is no Obligation of impossible things so there is no Action of things that neither Nature nor Reason will afford to be done neither is it to the purpose that the maintainers of these fictions doe say that in this case the place where the contract is made is not considerable which I take to be farre otherwise for that when that themselves will convey a Marine cause from the Sea unto the Land they will lay it to bee done in some speciall place of a Countrie bee the place never so unproper for such an action for that the foundation of these actions is the place where they were done as namely that they were done in the body of such a Country or such a Country and not upon the maine Sea or beneath the lowest bridge that is upon any great river next the Sea And therfore in two emulous Jurisdictions when they are so divided as that one is assigned the sea the other the land the place of the action can in no sort be suppressed and another supplyed in the roome thereof Quod enim una via prohibetur alia via non est permittendum quod prohibitum est directo prohibetur etiam per obliguum for if this were granted then matter enough would bee offered to one Jurisdiction to devour up the other and the Law would be easily eluded which to restraine either of these Jurisdictions to their owne place and to provide that one in his greatnesse doe not swell up against the other hath set either of them their bounds and limits which they shall not passe which as it is the good provision of the Law so ought either Jurisdiction in all obedience to submit it selfe thereunto for that the diminishing of either of them is a wrong to the Prince from whom they are derived who is no lesse Lord of the Sea than hee is King of the Land and therefore in no sort such liberty must be allowed to the one directly or indirectly as that it should be a spoile unto the other which would easily come to passe if when as the Law alloweth not any man to sue a Marine matter by the ordinary course of the Lawes of this Land yet a man will follow it by an extraordinary But where there is an
disease for so I call their unsatiable desire I finde not which way I may provide a cure for this maladie or how to punish their excesse For what Fathers could perswade them or from whence could they take occasion so superfluously to abound or to say with holy David to bee so vainely madde Their care is every houre to purchase to themselves Lands without number sumptuous and stately Buildings troupes of Horses droves of Oxen and Camels and other Cattell innumerable and bending all the sollicitude of their mindes this way they make a monasticall life litle different from that of the world which is incumbred with varietie of anxious care For these and the like Reasons the Novell forbids to build any more Monasteries but this was afterwards repeald by the Junior Basil An other great inconvenience would have beene the impoverishing of secular States by Amortization of Lands which Princes foreseeing set a bound to these exorbitant Donations restraining the excesse of that Charitie by mature and timely Decrees In Spaine the Lawes of Mortmaine began under the Kings of Aragon in France nihil usitatius as one saith The like provision hath beene made here at home for which see the Statute De Religiosis in the Great Charter which also hath been confirmed by the succeeding Princes of this Land Yet in what cases Lands may be divised in Mortmaine See the Writ Ad quod Damnum in the Natura Brevium Concerning the reason of the name Polydore Virgil speaking of the Confirmation of the former Statute by Ed. the first saith thus Et Legem hanc ad Manum 〈…〉 vocârunt quòd res semel data Collegus Sacerdotum non utique rursus venderentur velut mortuae hoc est usui aliorum mortalium in perpetuam adempta essent That which the Author saith concerning this is the reason of Peckius in his Booke De Amortizatione bonorum Cap. 2. But the notation of the word is otherwise observed out of the Statute by a great Lawyer Lands saith he were said to come to Dead Hands to the Lords for that by Alienation in Mortmaine they lost wholly their Escheats and in effect their Knight service for the defence of the Realme Wards Marriages Reliefes and the like and therefore was called a Dead Hand for that a dead hand yeeldeth no service It is the obsetvation of Sir Edward Cooke upon Judge Littleton's Tenures under the Title Fee-simple upon the words Car si homme purchase c. What everuse there might be of these Lawes of Mortmaine in time past certaine it is the present needeth them not for in these dayes few men are so rash handed as to give too much to the Church And that which was heretofore said of those things that were given that they were in a Dead Hand may now more justly be said of those that are taken away And yet whosoever lookes into this constitution whereby it was forbidden that any man should passe any Lands or other unmoveable possession unto the Church without the Princes leave for that thereby the things that are so passed come as it were into a dead hand which holdeth surely fast that which it once apprehendeth neither easily parteth with it so that it cannot without much difficulty be reduced and brought again to the commerce and common use of men shall finde it was rather for the benefit of the Common-wealth than for the dislike of the Church that it was so ordered For if that course had beene holden on still the greatest part of the livelihood of the Common-wealth would in short time have come unto the Church and so Lay-men should not have beene able to have borne the publicke burthens of the Common-wealth which it concernes Secular Princes to be carefull of and to foresee that by over-much bountie towards the Church they impoverish not their owne state and lose the right of Escheats Primer seisin and other Priviledges of the Crown in cases of forfeiture and specially make bare their Lay-subjects upon whom a great service of the Common-wealth doth lye And yet otherwise the beneficiallest state of this Realme unto the Prince is the Clergie as from whom the King hath a continuall revenue in Tenths and is deepest in Subsidie and not the least in all other extraordinarie charges according to the proportion of their place And therefore as the King is to maintaine the one so he is also to cherish the other and not to suffer their state in any sort to be diminished for that all other states are made for the service of the Church and the Church againe for the benefite of them But this was none of those Priviledges that I spake of for these are more ancient than they and granted out upon better devotion than the other but after this the zeale of Religion being almost extinguished in the Christian World partly by the great uproares and tumults that were in every Countrie by the breaking in of one barbarous Nation or other upon them who pulled downe Churches faster than ever they were built and made havock both of Priest and people that professed the name of Christ partly by the heresies that rose every-where in the Church in those dayes which distracted mens mindes and made them waver in the constancie of their Religion it was revived againe upon this Occasion SECT 2. Of the beginning of Cloystered Monkes in the West Church of Christendome and that the Author thereof was one Benedict a Roman about the yeare 606. ONe Benedict vvho otherwise had beene a man of action in the Common-wealth that Benedict which was as it were the Father of all those that professed a Regular life within the West Hospintan de origine Monachatâ—s part of Christendome for before his time the Monkes of the West Church served God freely abroad without being shut up in a Cloyster he I say finding himselfe wearied with the tumults broyles which happened under the government of Justinian and some yeares after by the incursion of those barbarous Nations before named into Italy retired himselfe into a desert and solitary place intending there to give himselfe wholly to the service of God where when he had a while remained he grew so famous by his Christian exercises of fasting and prayer and the good and wholesome exhortations that he made to those who resorted unto him that within a very little time after there was great confluence of people unto him not onely from divers parts of Italy but even from sundry other parts of the World so that within a short time they grew into Fraternitie underneath him to whom he gave rules to live by to the imitation of that which Saint Basil did in the East Church to which his Disciples submitted themselves with all alacritie leading a life farre different from the common sort of men denying unto themselves all those ordinary delights that other men doe commonly take out of meat drinke apparell marriage Temporall preferment and such other things which worldly
imbrace it and kisse it as a golden birth or as if that Juno her selfe had beene present at the Nativitie thereof And the devise is this A Bishop being owner of a Manor yet not divided into Tenancies nor having any Parsonage erected upon it ordaineth the one and divideth out the other here the Bishop being seised in the whole Manor before the said division because hee is a Clergie man is supposed to be in possession as well of the Tythes as of the Manor it selfe and therefore after creating a Parsonage and dividing out his Tenancies may retaine and keepe to himselfe and his said Tenants so much of the said Manor discharged of Tythes as him listeth and assigne over the rest for the maintenance of the Minister and that his Tenants after may challenge exemption from Tythe as the Bishop did for that they were exempted by his capacitie while they were in his owne hand Neither of which is so by Law for insomuch as a Bishop is an owner of a Manor and is a prime founder of a Benefice hee hath no more right to the Tythe thereof than a meere Lay Patron hath who for his zeale to the Church to incourage others to be like affected to Gods Religion as himselfe is may have some small pension assigned him and his for ever by the Bishop out of the same benefice in acknowledgement of the erecting founding or ondowing thereof but for any portion of Tythes to him or his hee could never retaine any nor can to this day neither yet can the Bishop himselfe unlesse perhaps hee will be like to Ananias and Saphira which held part of the price of their ground from the Lord and were worthily punished for the Actorun 〈…〉 same And as they cannot detaine it themselves being spirituall men so much lesse can they passe it over to any Lay man for that Lay people neither by Gods Law neither by Canons and Decrees of the Church were ever capable of Ca quamvis de decimis thâ— Abnum 5. them yea it was so farre off that ever any Bishops durst infeoffe any Lay man in Tythe that whosoever did it was to be deposed excommunicated untill such time as he restored the same to the Church againe And to say the truth Ca tua nobis de decimis Tythes were never at any time in Bishops as in Fee but in very few cases as where the Bishop had a Parish himselfe distinct from other Parishes for sundry Bishops in sundry places had so and then the Tythes of the Parish did belong unto them in such sort as they do now belong unto the Incumbents thereof Or if the Tythe were not within any Parish for then in like sort it did belong unto the Bishop of the Diocesse in whose Territory it was albeit now within this Realme it belongs unto the King or where the Parishes were undistinguished for then were they the Bishops not to convert to his owne use but to divide among the Ministers and Clerkes which laboured in the Diocesse under him in Preaching Teaching Ministring of the Sacraments and executing of other Ecclesiasticall functions every one according to his desert Or that it were the fourth part of the Tythe for then did it belong to the Bishop in Law towards his owne reliefe and the repairing of the Parish Church where they grew and not to conferre or bestow the same as him thought best which notwithstanding now also is growne out of use and nothing left unto the Bishop from the Churches of his Diocesse beside his Procurations and Synodals to be paid by the Incumbents in the time of his Visitation Beside which cases it cannot be found that ever any Bishop had to doe with Tythes much lesse to alyen dispose and transferre the same as him listed and to whom him listed SECT 2. That Bishops endowments in the beginning stood not in Tythes but in finable Lands FOr it is very certaine Bishops endowments themselves in the beginning of the Primitive Church stood not in Tythes but in good Temporall and finable Lands which gracious Princes and other good benefactors of former Ages bestowed upon them as it doth appeare out of the Câ—de sacrosanct Eccl. de Epist Cler 〈…〉 titul first booke of the Code where sundrie Lawes of Constantine the great and other gracious Emperours even to the time of Justinian himselfe are recorded both for the conferring of Lands upon the Church and those such as should neither be barren neither charged with Statute or other debts of the Exchequer as also for the conserving and safe keeping of such Lands as vvere in such sort conferred Authent multo magis C. de sacro sanct Eccles and bestowed upon them and it is manifest also out of our owne stories both in the Britans time during whose Raigne there are reported to have beene fifteene Iocelin of Furnis in his booke of British Bishops Sâ—ow fol 37. Archbishops in the See of London well endowed with possessions and if they were Archbishops then must it necessarily also follow there were Bishops for that these are respective one to the other The like is vvritten of the Saxons Raigne under whom the See of Canterburie Hen. Huntington lib. 3. the See of London the See of Rochester and the See of Yorke for these foure vvere first set up againe after the Saxons first received the faith at the Preaching of Augustine Melitus and Justus Paulinus are namely reported to have beene inriched vvith large Dominions Charta regis Ethelberts charta Wâ—ll primâ— Stow fol â—7 and possessions given to every of them for their maintenance And vvhat course hath beene held vvith Bishoprickes erected since the Conquest the ruinated state of them and others doe shew amongst whose ancient livelihood is not to be found any indowment by Tythes but such as of late have come unto their hands and that for the most part by change of their good finable Lands for impropriate parsonages And therefore much to blame are some of our time who when as their predecessours in former ages never admitted of any impropriate parsonage into their possessions but onely in such cases as have beene before remembred for the name and place of a Bishop will be content to make Glaucus Homer Iliad change with Diomede that is give their golden Armour for the others brazen Armour or doe like as Roboam Regum 1. c. 14. did who in stead of golden shields that his father Salomon did hang up in the Temple put in their places shields of brasse for the change is no better and so well know they that procure the same otherwise would they never so instantly desire it SECT 3. That the turning of Bishops indowments into tenthes or Tythes for impropriate Parsonages is unsutable to the first institution and very dangerous ANd therefore an unsutable devise was that and contrary to the course of former Ages which was procured in the first yeare of the
to any of these purposes were intended to the benefit of such as are legitimate and are next of kin by lawfull succession and not by unlawfull conjunction To legitimate him that was a Bastard when there could no claime be made unto his birth-right but by grace among the Romans were sundry wayes first where the Father of the Bastard they being both single persons married the woman by whom he begot the child secondly where the father did by his last Will and Testament or by some publick instrument subscribed by witnesse name him to be his naturall and lawfull sonne or simply his sonne without the addition of any of these two words base or naturall and therewithall did make him his heire which could not be but in such cases onely where the father had no other naturall and lawfull childe left alive Thirdly whereas the Prince by his Rescript or the Senate by their Decree did doe any one that credit as to grant them the favour of legitimation which was done for the most part in such cases onely where either the father of the childe or the childe himselfe offered himselfe to be attendant on the Court or Prince In this Realme none of the foresaid legitimations take place as farre as I can learne but onely that which is done by Parliament and that very rarely for besides those that King Henry the eigth did in the variety and mutability of 28. 8. cap. 7. his minde towards his owne issue I thinke there cannot be many examples shewed for as for that which is wrought 1. Mar. 1. parliament cap. 1 by subsequent Marriage being a thing anciently pressed by the Clergie of this Land to be admitted in like sort as it is used in other Lands where the Ecclesiasticall Law taketh place it was rejected by the Earles and Barons with one voyce and answer was made that they would not change the Lawes of the Realme in that point which to that time had beene used and approved All these cases of Bastardie in other Lands whether they be such or not such are triable by the Ecclesiasticall Law But here with us it is questionable to what Law and how farre they doe appertaine whether to the Ecclesiasticall or Temporall For the matter of Bastardie what it is the Ecclesiasticall Law and the Temporall differ not but there is a diversitie betweene them in the prosecution thereof for the Ecclesiasticall Law bringeth it two wayes in Judgement 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 division then of the Temporall Bastardie is then said to be incidently propounded when it is laid in barre of some other thing that is principally commenced as when one sueth for an inheritance that he pretendeth is due unto him by his nativitie an other crosseth him therein by objecting against him bastardie with purpose to exclude him from his action in the inheritance here the barre is in the incident because it comes exclusively 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 prove himselfe legitimate which happily hee never 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 prove himselfe legitimate before the Ecclesiasticall Judge and to bee pronounced to be such a one Ad Curiam enim Regiamnon pertinet Glanvill lib. 7. cap. 13. agnoscere de Bastardia Against which the Law of the Land doth not oppose it selfe but acknowledge it to bee the right of the Church And yet to avoid all subtill and 9 Hen. 6. ca. 11. surreptitious dealing in this behalfe it hath set downe a warie and cautelous forme of proceeding by which the same shall be brought unto the Ordinarie and such as have interest in the suit may have notice thereof and time to object in forme of Law against the proofes and witnesses of him that pretends himselfe to be Mulier if they so thinke good and what shall be certified herein by the Ordinarie as concerning the nativity of him that is burthened to be a Bastard that is whether hee were borne before or after Glanvill lib. 7. cap. 15. his Parents marriage shall be supplied in the Kings Court either by judging for or against the Inheritance But Bastardie is then taken to bee principally propounded when either one finding himselfe to be greeved with some malicious speech of his adversarie reproaching him with Bastardie or himselfe fearing to be impeached in his good name or right doth take a course to cleere his nativitie by calling into the Law him or them by whom hee is reproached or feareth to bee impeached in his right and credit to see him to prove himselfe legitimate and to alledge object against it if they ought have or can have to the contrary which if either they doe not or doing to the utmost what they can can bring no good matter against his proofe but that it stands still good and effectuall in Law to all intents and purposes whatsoever although perhaps hereby hee shall not be able to carry the inheritance both for that it appertaineth not to the Ecclesiasticall Law to judge of Lands Tenements or Hereditaments and also for that there is a precise forme set downe by Statute how suits of this nature shall be recovered yet if no opposite or contradicter appeare herein and the suit was onely taken in hand against such as either openly reproached him or secretly buzzed abroad slanderous speeches as concerning his legitimation it is not to be doubted but by an accident also it will be good for the inheritance it selfe for where a mans legitimation is sufficiently proved thereon followeth all things which naturally thereto belong But if any man 9. Hen. 6. c. 11. urge the forme of the Statute being interessed therein then must it necessarily be followed for that otherwise it would be thought all that was done before so farre as it may concerne the inheritance although it were but in a consequence were done by collusion This kinde of proceeding hath been much more in use in former times than it is now and never any opposition made against it but now it goeth not altogether cleere without contradiction as many other things are offensively taken which notwithstanding have good ground and sufficient warrant for them And so farre as concerning the Ecclesiasticall proceedings in this businesse Now to the Temporall sorts of them Generall Bastardie is so called because it comes in incidently and is in grosse objected against some that sue 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 Ordinarie with certaine additions for more perspicuity of the inquirie thereof as that whether
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
the Law is tempered with the sweetnesse of equitie which is nothing else but mercie qualifying the sharpenesse of Justice to either which Courts they have sorted men fit for their skill and education to manage the same that is to the seat of Justice the professors of the Law of this Land who may be thought best to know the Justice of the same but to the other they have assigned the professors of the Civill Law for that a great sort of titles of that Law are titles of equitie as whatsoever is Jus praetorium or Jus aedilicium with them is matter of equitie so that they may seeme best able for their skill in these titles of which no other Land hath the like to assist the Lord Chancellour in matters of Conscience Who though he be a man for the most part chosen by the Prince himselfe out of the rest of the Sages of this Land for his speciall good parts of learning and integritie above the rest as now the honourable person is that occupieth that place who is as Tullie said of that eloquent Orator Marcus Crassus Non unus ex multis sed unus inter omnes propè singularis so that they might be thought for their great and eminent wisdome in all things appertaining to their place able to direct themselves yet because it is Divinitatis potiùs quā humanitatis omniū rerū habere memoriam in nullo errare as one saith It was providently done by Princes of former age to joyne to these great personages men furnished with knowledge in these cases of conscience wherin if they should at any time stick they might be advised by them that are assessors with them what they find in the law proportionable to the case in hand that thereto they might square their decree or order accordingly whose variety in these cases is such that hardly there can fall out any case in practice but there will be some Law in that learning conformable unto it which opportunity of men furnished with this knowledge for that seat his Majesty shall want unlesse the study of the Civill Ecclesiasticall Law be maintain'd which also for the cases of equity constience therin is cald of the old writers Aequitas Canonica And what reason gave occasion to these precedent Princes to place men indowed with the skill of the Civill Law in the Court of Chancerie the same also ministred unto them mindes to commit unto the selfe same men the ordering of their Courts of Requests for that therein for the most part are handled poore miserable persons causes as widows and Orphans and other distressed people whose cases wholy relie on pietie and conscience as a fit subject for that Law to deale in which also will take a maime if the studie of the Civill Law be not upholden So then to deny a free course to the Civill and Ecclesiasticall Law in this Land in such things as appertaine to their profession or to abbridge the maintenance thereof is to spoyle his Majestie of a part of his honour whose glory it is to be furnished with all sorts of professions necessary for his state and beneficiall for his subject to weaken the State publique bereave it of grave and sage men to advise the State in matters of doubt and controversie betweene forraine Nations and themselves to disarme the Church of her faithfull friends followers and so to cut the sinewes as much as in them lyeth of Ecclesiasticall discipline and to expose her to the teeth of those who for these many yeares have sought to devoure her up and so now would do it if the mercifull providence of God and the gracious eye of the Prince did not watch over her And so far of the necessitie of these two professions and generally of the use and disuse of the Civill and Ecclesiasticall Law in this Land and wherein it is overlaid by the Common-Law and how it may be relieved if it seeme good unto his Majestie and the wisedome of this Realme All which I have written not of any purpose to derogate from the credit of that Law under which I was borne and by which I hold that small maintenance that I have fo I reverence it as a necessary Law for this State and make such reckoning of every of the professours in his place as becommeth me but that it pitieth mee and not only mee but all those that tender good learning and have no prejudicate minde toward the Common-Law to see two such Noble Sciences as the Civill and Ecclesiasticall Law are so to be disgraced as that there is no more reckoning made of them or their professours than if they were matters and men of no worth and fit or apt for no service in the Common-wealth and yet notwithstanding the use of them is so necessarie as that the Common-wealth cannot want the service of them in matter of great importance to the State which if the profession should come to a downefall as it is like shortly to do if it be no more cherished and made of than it is will be sooner seene by the want of them than is now perceived by the having of them and then perhaps will the State lament for the losse of so goodly a profession when it will be hardly recovered againe as the children of Israel did for the tribe of Benjamin when they had in one dey slaine well nigh the whole number of them FINIS AN INDEX OF THE PRINCIpall Matters and Words contained in this Booke A ABbyes erected for good ends pag. 183. 184. but subverted for private 212 Absence from judgement hindereth not processe 58 Accessorie when to be determined where the principall 157. when not 232. what things to be accounted accessories 233 Acts of appropriations 202 Actions for things lent or pawned Of Ejectment Of Compensations Of Passengers Marriners Fathers Masters 7. Of Mandate Society Bargaine Change Restitution Vsurie 9. Popular 22. Exercitorie 89. Of Trover 128 which is prejudiciall to the Ecclesiasticall Law 130. 131. Actiones praejudiciales what 242. Of Diffamation where to be tryed 240 241. Administration when admitted in what order and when to be taken 13. Administrators false dealing with Legatories and how to bee remedyed vid. Executors Admiraltie 128 Pope Adrian restraineth the priviledge granted by Paschal 200 Adoption must be of such as are younger than the Adoptant 130 Adulterie what 22. how punished ibid. Advocates the necessitie of them 78. parallel'd with souldiers 101 Advonson what 196. how obtained ib. Aethelstane his law for Tythes 138. 139 Aimoine why silent in Charles Martels Sacriledge 166 Alcoran alloweth Tythes 175 Alienations not to be made for feare of suit 78 Almes-money what 139 K. Alured his grant to Churches 193. Inventour of Lanthorns 197 Apertura Feudi what 73 Apostles Canons of what authoritie 194 Appeales when admitted from whom by whom and when to be made 26. 55. 78. 79. 80 Appearance within what time to be made 24 Appropriation vid. Impropriation Aquinas
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