doe such service to him and his for the same as is betweene them covenanted or is proper to the nature of the Feude SECT 2. That Feuds are either Temporall or Perpetuall and how OF Feuds some are Temporall some other are Perpetuall Temporall Feuds are those that are given either for terme of a mans life or for yeares or at the will of the Lord for some service done or to be done such as are Annuities given to Lawyers for counsell Pensions given to Physitians for their advise Stipends to any Teacher of Arts and Sciences Fees for keeping of Towres and Castles called by Feudists Castalia and is by Littleton called Castle-ward although by him it is taken for a state of inheritance Perpetuall Feuds are rights which a man hath by grant from the Soveraigne or chiefe Lord of the soyle or territorie to have hold use occupie and injoy honours mannors lands tenements or hereditaments to him and his heires for ever upon condition that the said vassall or partie his heires and successours doe homage and fealty to his Lord his heires and successours for such honours lands or hereditaments and doe him either service in warre according as it is covenanted betweene the Lord and his vassall or such other service as the nature of his tenure doth require or if hee faile therein he shall either finde some other in his roome to doe the same or else pay a certaine summe of money in lieu thereof Although this Tenure by the first creation thereof be perpetuall yet that the soveraignty thereof should not still remaine unprofitable to the first Lord the whole benefit thereof going continually to the vassall or tenant it is provided that the Soveraigne or chiefe Lord the first yeare the heire or successour of the vassall comes unto his land shall have the whole revenue of his livelihood for that yeare or a certain summe of money in token of the returne thereof unto the Lord and the redemption thereof made againe by the tenant which by the Law of the Novels is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and is well nigh the same that wee call livery which every heire that holdeth in Knights service sueth out before he take possession of his land as heire to his Ancestours This Tenure is gotten either by Investiture or by Succession Investiture is the same that we call Creation and is the Investiture what it is Primier grant of a Feude or Tenure to any with all rights and solemnities thereto belonging wherein the homager or feodatarie for the most part upon his knees promiseth faith and allegeance under a solemne oath unto his Lord and his successours Succession is whereby the eldest sonne succeedeth the What is Succession in the Feuds father in his inheritance and if hee faile and have no issue then the next brother and so in order successively and if there be no sonne then the next heire male and if there be no heire male then the land escheats unto the Lord. For the Lumbards from whom the Feuds first came or at the least were chiefly derived from them directing all their policie as the Lacedaemons did to matters of warre had no feminine Feuds among them but after by processe of time there were created aswell Feminine Feudes as Masculine Feuds in so much as where there was no issue male to put them from it women did succeed in the inheritance SECT 3. Of Feudes Regal and not Regal Leige and not Leige and how Feuds may be lost OF Feuds some are Regall some not Regall Regall are those which are given by the Prince only and cannot be given by any inferiour Of these some are Ecclesiasticall as Archbishopricks Bishopricks and such like Others are Civill or Temporall as Dukedomes Earledomes Vicounts and Lords who by that are distinguished from the rest of the people that they haue the conducting of the Princes Armie at home and abroad if they be thereto appointed and haue right of Peeres in making of Lawes in matters of triall and such other like businesses Not Regall are those which hold not immediatly of the Prince but are holden of such Ecclesiasticall or Civill States which haue had their Honours immediatly from the Prince Besides of Feuds some are Leige others not Leige Leige Feuds are they in the which the vassall or feodatorie promiseth absolute fealtie or faith to his Lord against all men without exception of the King himselfe or any other more auncient Lord to whom besides he oweth alleagance or service Of this sort there is none in this Realme of England but such as are made to the King himselfe as appeareth by Littleton in the title of Homage wherein is specially Salve le Foy que je doy à nostre Signour le Roy. Littleton tit Homage excepted the faith which the Homager oweth to his Lord the King Feuds not Leige are such wherein Homage is done with speciall reservation of his faith and alleageance to the Prince and Soveraigne Of such as are Vassals or Leige men some are called Valvasores majores others Valvasores minores Valvasores Vavasors majores are such as hold great places of the state under the Emperour or King as are the degrees of Honour before-named and are called Peeres of the Land who onely gives Nobilitie Valvasores minores are those which are no Peeres of the Land and yet have a preheminence above the people and are as it were in a middle Region betweene the people and the Nobilitie such as are Knights Squires and Gentlemen The Feuds are lost by sundry wayes by default of issue of him to whom it was first given which they call Apertura feodi by surrender thereof which by them is termed Refutatio feodi by forfeiture end that was in two sorts either by not doing the service that his tenure did require or by committing some villainous act against his Lord as in conspiring his Soveraignes death defiling his bed or deflowring his daughter or some other like act treacherous to his Lord unworthy of himselfe CHAP. V. SECT 1. What the Canon Law is in generall What the Decrees are and of how many parts AND so much of the Civile Law the Bookes thereunto pertaining Now it followeth that I doe in like order speak of the Canon Law which is more hardly thought upon among the people for that the subject thereof in many points hath many grosse and superstitious matters used in the time of Papistrie as of the Masse and such other like trumperie and yet there are in it beside many things of great wisdome and even those matters of superstition themselves being in a generalitie well applied to the true service of God may have a good use and understanding What is the Canon Law The Canon Law hath his name of the Greeke word Canon which in English is a Rule because it leads a man straight neither drawes him on the one side or the other but rather correcteth that which is out of
uniformitie of Jurisdiction as that it is all by sea and all by land there may a thing be fained to bee done in one place that was done in another place without any mans prejudice for that in this case the place is not traversable so it bee not in Criminall matters where time and place is required that the accuser doe not wander from place to place with the injurie of the accuser for howsoever the place and the action is altered yet the truth of the cause remaineth one and the selfe same still And so farre as concerning actions of Trover in Admirall causes Now it doth follow that I should speake of like prejudices that grow to the same by actions of Trespasse but those will I passe over for that in so small a Treatise as this is I cannot goe over all and therefore will I onely put the Reader in minde that there are more devises rising out of the Common Law than one that infest the Admiralty But now to Wils and Testaments wherein they are impeached SECT 4. Concerning Wils and Testaments wherein they are impeached FOr matters of Wils and Legacies they are so proper to the triall of the Ecclesiastical Law of this Realm that the professors of the Common Law themselves doe oftentimes confesse and say they have no more to doe therewith than the Civilian hath to do with the knowledge of the matters of Franktenement and yet even these matters of Testaments and Legacies although Prohibitions be not so frequent in them as they are in the rest of Ecclesiasticall causes yet they are not quite voide of them that in some points wherein the very life and essence of a Will doth stand For whereas the ancient Romans knowing how subject matters of Wils are to forgerie and corruption on the one side and suppression and concealment on the other side to meet with all craft and subtilty whatsoever which might seize on them did most carefully provide that there should be seven witnesses at the least present at the making of every Will Testament except it were in time of some generall plague or sicknesse when so many witnesses could not conveniently be had together for fear of infection or that it were in the Countrie where there are small multitude of people And that those witnesses should be particularly required to that purpose with diverse other observations and circumstances tending all to the safe and sure making thereof which the Ecclesiasticall Law altered afterward in sundry points for that many true Wils were many times overthrowne for want of those precise solemnities It therefore reduced the whole number of those seven witnesses unto two onely agreeably to the Law of God and the Law of Nations where that number of witnesses is allowed as competent to prove any matter so that the same witnesses be honest and credible persons such whose faith is not doubted of The Common Lawyers because themselves in sundry matters very dangerously many times admit one witnesse and give him full credit and that in matters of great weight and importance as though all should bee squared to their rule and framed to their compasse if an Ecclesiasticall Judge in the probate of a Will contrary to the rules of his owne Law will not admit the testimony 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 every matter For answer 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 usus where the onely hand of the Father or Testator without witnesses serveth for a Will so the same be knowne to bee the Testators owne hand or so proved by comparison I would thinke to wise men I had said sufficiently but I will not rest hereupon but will convince themselves by themselves for doe they I pray you in their own proceedings where a Law or Statute requires more witnesses than one content themselves with one witnesse alone yea doe they not in all cases where a certaine number of witnesses are appointed to prove a fact by Law or Statute furnish the cause with so many witnesses as the case desires or else doe they not account the proceeding voide And will they thinke themselves so precisely bound to the keeping of the letter of the Common Law and will they not suffer the Civilian in like maner to cleave fast to the observation of the Civile Law especially when it hath the consent of the Law of God and the Law of Nations and is his Majesties 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 concurre 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 even so many things shall bee obtruded to the Judge for trueth which are starke lyes and many things shall bee pretended to bee gold in shew which in proofe and practise will be found to be no other thing but meere drosse And therefore well decreed the Emperour Lâ—juris urandi §. Simili modo C. de Testibus Constantine that no one mans testimony should bee heard though he were never so great a man in Court But perhaps some man will say If credit shall not be given oftentimes to one mans testimonie much wickednesse will passe away unpunished For reply to which I answer 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 guilty so also it is true on the other side if it be enough to condemnation to be charged by one man alone without any other witnesses no man shall bee innocent and therefore the admittance of one witnesse in causes and the proceeding thereupon to judgement is very dangerous An other like barre to this they lay against Ecclesiasticall proceedings in matters of Testament whereas an Ecclesiasticall Judge proveth 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 Judge thereby took upon him to decree which lands were devisable by Will which not or would by his probate adde a strength unto the Will to make the devise good or bad whereas on the contrary part the Ecclesiasticall Judge by this act doth only testifie that such a person made such a Will that the same was proved before himselfe under his Teste for his last Will Testament but for the
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
holy place Further it provideth that the name of the Prince for the time being be put 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 farre as it toucheth the division of the same among his children be holden for good but that it be in no sort prejudiciall to the creditors Of women tumblers and such other of like sort which with the feats of their body maintaine themselves that no oath or suertie be taken of them that will not leave that kind of life since such oath is against good manners and is of no value in Law That such gifts as are given by private men to their Prince need no record but are good without enrolling of them and in like sort such things as are given by the Princes to private men That no person thing or gold of an other man be arested for an other mans debt which they now call reprisals and that he which is hurt by such reprisals shall recover the foure double of the damages that he hath suffered thereby and that one man be not beaten or stricken for another That he that cals a man into law out of his Territorie or Province where he dwelleth shall enter caution if he obteine not in the sute against him hee shall pay him so much as the Judge of the Court shall condemne him in And that he who hath given his oath in Judgement shall pay the whole costs of the sute but after shall be admitted to prosecute the same if he will so that he put in suerties to performe it That such women as are unindowed shall have 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 surviveth be poore That Churches or Religious persons may change grounds one with an other for that one priviledged persons right ceaseth against an other that is in like sort priviledged That such changes of Mannors Lands Tenements and Hereditaments as are made by Church-men to the Prince be not fained matters and so by the Prince come to other mens hands who have set on the Prince to make this change and that the change be made to the Princes house onely and if the Prince after convey or confer the same upon any private man it shall be lawfull for the Church to reenter upon the same again and to repossesse it as in her former right That in greater Churches Clerks may pay something for their first admittance but in lesser Churches it is not lawfull That such as build found or endow 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 Clerks unto the Bishop but that they cannot make or ordaine Clerks therein themselves That the sacred mysteries or ministeries be not done in private houses but bee celebrated in publick places lest thereby things be done contrary to the Catholick and Apostolick faith unlesse they call to the celebrating of the same such Clerks of whose faith conformitie there is no doubt made or those who are deputed thereto by the good will of the Bishop But places to pray in every man may have in his owne house if any thing be done to the contrary the house wherein these things are done shall be confiscated and themselves shall be punished at the discretion of the Prince That neither such as be dead nor the Corse or Funerall of them be injured by the creditors but that they be buried in peace That womens Joyntures be not sold or made away no not even with their owne consent In what place number forme maner and order the Princes Councell is to sit and come together That hee that is convented in judgement if hee wilfully absent himselfe may be condemned after issue is joyned That no man build a Chappell or Oratorie in his house without the leave of the Bishop and before hee consecrate the place by prayer and set up the Crosse there and make Procession in the place and that before he build it he allot out lands necessarie for the maintenance of the same and those that shall attend on Gods service in the place and that Bishops be not non-residents in their Churches That all obey the Princes Judges whether the cause bee Civile or Criminall they judge in and that the causes be examined before them without respect of persons and in what sort the Proces is to be framed against such as be present and how against those that be absent SECT 7. What is the matter of the sixth Collation THe sixth Collation sheweth by what meanes children illegitimate may be made legitimate that is either by the Princes dispensation or by the fathers Testament or by making instruments of marriage betweene the Mother and Father of the children so that the Mother die not before the perfecting of them or that shee live riotousâ—y with other men and so make her selfe unworthy to be a wife That Noble personages marrie not without instruments of Dowrie and such other solemnities as are usuall in this behalfe that is that they professe the same before the Bishop or minister of the place and three 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 be needfull for meaner persons to observe the former solemnities That such as were indebted to the Testator or they to whom the Testator was indebted bee not left Tutors or Guardians to their children that if any such be appointed a Tutor a Curator be joyned to him to have an oversight of his dealing that Tutors or Curators are not bound by Law to let out the Minors money but if they doe the interest shall be the Minors and the Tutor shall have every year two moneths to finde out sufficient men to whom he 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 be a yearely profit above his finding the Tutor shall lay up the residue for a stock against he comes to age or buy land therewith if he can finde out a good bargaine and a sure title but if the childes portion be small so that it will not find him then the Tutor or Curatot shall dispose of the Minors state as hee would dispose of his owne to which also hee is bound by oath How such instruments as are inrolled before Judges concerning matters of borrowing and lending and such like may have credit how men may safely bargain either with writing or without writing if themselves be ignorant men and of the comparison of Letters and what credit there is to be given to an instrument when the writings and witnesses doe varie among themselves Of unchaste people and such as riot against nature whose punishment
validity of the Will it self the Legacies and devises therein whether they were of lands or tenements or of goods or chattels the Probate it selfe worketh nothing but leaveth that to the Law Common or Ecclesiasticall according as the bequest belongeth to either of them whether it be good vailable in Law or no for it oftentimes falleth out notwithstanding the Wil be lawfully proved before the Ordinary yet the bequests are not good either in respect of the person to whom the bequests are made or in respect of the thing that is not devisable in all or in part as by the Common Law lands in Capite cannot be devised more than for two parts but in Socage the devise is good for all and by the Custome of the Citie of London some other places of the Land a man can bequeath no more than his deaths part and if hee doe his bequest is void for the rest but in other places of the land a man may bequeath all By the Civile Law a man can bequeath nothing to a Traytor or an Heretick or an unlawfull Colledge or Company unlesse perhaps it be for the aliment or maintenance of them in extreame poverty that they die not for hunger which is the worke of charitie and if he doe the legacie thereof is void to all intents purposes So then the Probate of the Ordinarie in matters of land neither helpeth nor hindereth the right of the devise it selfe but is a declaration onely of the dead mans doome uttered before such such witnesses which taketh his strength not so much from the Probate as from the Law and is testified onely by the Probate that the same was declared by the Testator in the presence of the witnesses therein named to be his true and last Will. So that no man herein is to be offended with the Ordinary as presuming of a matter not appertaining unto him for his testification in all Law and conscience doth belong unto him to give allowance so farre unto the defuncts Will as it is avouched before him to be his last act deed in that behalfe but rather they are in this case to thanke the Ordinary that he by that act of his hath preserved the memorie of that which otherwise perhaps would have been lost and perished to the great hurt of the Common-wealth and others which have private interest therein CHAP. II. SECT 1. Of the Care that Princes of this Realm have had for the due payment of Tythes unto the Church and the preserving of the cognisance thereof unto the Ecclesiasticall Courts of this Land both before the Conquest and since OF all matters that appertaine to the Ecclesiasticall Courts there is no one thing that the Princes of this Land have made more carefull provision for since there was any Church government in this Land than that all maner of Tythes due by the word of God should bee fully and truely paid unto their Parish Churches where they grew and if they were denied should be recovered by the Law of the Church * The great pietie Princely care of our ancient Kings before the Coquest is worthily noted by the Authour and because it argueth the rare devotion of those times wee will consider it more perfectly About the seventh Centurie Ina King of the West Saxons made this Law 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 hpa 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ne 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is That the Church-sceat be paid in at Martlemas if any refuse to pay it that his penaltie be fortie shillings and the payment of Church-sceat twelve times That which the law here calleth Church-sceat according to the varietie of reading hath bin diversly interpreted Fleta as if it were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 readeth Church-seed and therefore he saith it was Certa mensura bladi Trâ—tics c. So the old Lawyer in Lambert fuit un certein de ble batu que chescun homme devoit en temps des Britons des Engles porter a lour Esglise le jour Seint Martin Others reade 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Churchescet that is the Church shot or Church due Which way soever we reade the word there will bee no great injurie done to the sense yet because other things besides Corne have gone under the name of Church-sceat as the Cocks Hennes at Christmas therefore it seemeth that the last reading is the best heere it must signifie a quantitie of Corne due to the Church and to be paid in at Martlemas Why these dues and others were tendred at this Feast Hospinian thinketh he hath given a good reason but see Gretser in his Booke de Festis upon S. Martins day In the ninth Centurie King AEthelstane made this Law Ic 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 callum minum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 calle mine 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 on 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nama 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mine 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 hi 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is I AEthelstane King by the advice of Wulfhelme my Archbishop and my other Bishops command all my Reves thorough all my Kingdome in the Lords name and of all Saints and for my love that in the first place they pay the Tythe of my owne revenues as well in living Cattell as the yearely fruites 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is And this to be done at the day of the beheading of S. Iohn the Baptist And that the Subject might the more earnestly intend the observation of this Law the King addeth a pious exhortation 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Iacob 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ic 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mine 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mine 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mâ—n 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 hi 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 eac 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 on 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 bocum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mid 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ecelic 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is Furthermore thinke wee with our Our selves what Iacob the High Father to the Lord said I will give thee my Tythe and my peace-offering And the Lord himselfe in the Gospel saith To all that have it shall be given and they shall abound We might also bethinke Our selves of the penaltie which is written in this booke that if wee will not pay our Tythes then the nine parts shall bee taken away and the tenth onely shall be left us And Gods Lore putteth us in minde that for these earthly things eternall are to be had and everlasting for the transitorie Thus the religious Prince goes on and earnestly pursues the argument in the Rhetorick of those times seeming to intimate to his people that though no humane Law had interposed it selfe yet the divine equitie of this cause might be eminently enforced out of sacred Writ King Edmund in a Synod holden at London at which was present 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Oda and Wulfstan
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