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
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
subjection and that he is not to bestow any benefice upon any that is unworthy for the same either in life or doctrine with sundry other excesses of Prelates in the like sort If any begin to build a Church or Chappell to the prejudice of an other and it be denounced unto him by the Parson or Parishioners of the other Church That he goe no further in the said worke untill the Law hath determined it whether it be a nusance or not Of the Priviledges of Prelates and wherein they exceed their priviledge Of Canonicall purgation which is injoyned when as yet there is no certaine proofe of the crime but there is a common voyce and fame of the fact which is to be cleered by the oath of him who is charged by the fame that he hath not committed the fact and the oath of his good neighbours who sweare they beleeve that he hath taken a true oath * Other kinds of this vulgar Purgation were observed by the Ancients as the triall by Water by the Crosse and by the Body of our Lord c. and these were of ordinary use amongst our owne Ancestours especially in the darker times The Saxons besides the triall by Combate which they called Campe-fight commonly used their fire and water Ordeals Their triall by water was performed either in hot or cold In cold water the parties suspected were judged innocent if their bodies were not borne up by the water contrary to the course of Nature In hot they were to put their bare armes up to the elbowes which if they brought out without hurt they were concerved to be cleere of the crime They that were tryed by the Fire-ordeall were either to passe bare-footed over a certaine number of hot glowing plough-shares or otherwise to carrie burning irons in their hands a certaine number of paces and according as they sped they were judged nocent or innocent This horrible experiment of Fire-Ordeall in the first kinde was tryed upon Queene Emma the Mother of Edward the Confessour with a successe worthy of her chastiue An example of the second kinde and the like event is recorded by Eadmerus who relateth that in the reigne of William the second A company of fellowes being suspected to have destroyed the Kings Deere were enjoyned for then triall to carrie burning irons which accordingly they did without hurt the issue thereof being reported to the King was entertained with such a remarkeable indignation that he suriously replyed Quid est hoc Deus est justus Iudex pereat qui deinceps hoc crediderit How solemnly and superstiuously these Ordeals were performed see Lambard out of his ancient Authour in the word Ordalium Reade also the Saxon Lawes of King Aethelstane chap. 23. where it is said that the party suspected three dayes before his tryall must goe to the Priest and heare Masse and feed for that time upon bread and salt and water and wurts c. See the rest in the Law These kinds of Purgations remained in use amongst our Ancestours till the time of Hen the 3. in whose reigne they began to be abolished rather by desuetude and in reverence to this Canon Law than by any Statute of the Realme as learned Mr Selden hath observed in the Notes upon his forementioned Eadmerus P. 204 where also the Reader may see how farre forth they were forbidden Onely the tryall by Combate though it be abrogated by the Canon heere is notwithstanding permitted by the Law of this Land but of very rare and considerate practice Of vulgar purgation which was performed by combate and passing by burning fire which is worthily rejected for that thereby the innocent many times was condemned and God thereby did seeme to be tempted Of injuries and wrongs done Of Ecclesiasticall punishments due to offences among which one is That so often as one offendeth so often hee is to be punished And that Prelates doe not take reward to winke at men in their sinnes or turne corrections into pecuniary paines for gaine of filthy lucre Of Penances and Pardons or remissions Of Excommunication which is the greatest punishment in the Ecclesiasticall jurisdiction and who and in what cases men are to be strucken thereby PART II. CHAP. I. SECT 1. What uses the Civile and Canon Law have in this our Realme and that the Civile Law respecteth matters of ordinarie and extraordinary Cognisance OF all those goodly and excellent Titles of the Civile and Canon Law so full of wisdome so full of variety so well serving for every moment and state of the common-wealth in peace or in warre as nothing can be more the Professours thereof have very little use here within this Realme For first for the Civile Law beside the two Universities of this land that of Oxford and the other of Cambridge to whom the Kings of this Realme have granted a larger libertie in the practise of these Lawes than to any other place of the Kingdome for that their purpose was to have young men trayned up there in a more ripe knowledge of these professions that when they came abroad they might be more ready in all matters of negotiation and commerce that the Prince or state should have need of thē to deale in with forrein Nations when they were thereto called to which the Lawes of this Land serve nothing at all by reason of the difference that is betweene their Law which is either wholy the Civile Law or for the most part grounded on it and the Law of our Nation a very few Titles are left to the practisers thereof to deale in and most of them seldome and rare in use as shall be hereafter shewed so that I may well divide all the profession of the Civile Law here with us into matters Ordinarie and Extraordinarie SECT 2. That the matters of ordinary Cognisance are Marine of which some are Civill others Criminall and what the Civill Marine matters are and what manner of proceedings they have THe matters of ordinary cognisance of the Civill Law here in this Land are Marine matters of which some are Civill some are Criminall Civill matters are those which concerne either the free use of the Sea it selfe or the rights that men have to trade and traffique thereupon or the bargaines sales or contracts or as it were contracts that are made or done beyond or upon the maine Sea or any creeke thereof or within asmuch space from the Sea as the greatest winter wave runneth out for any matter belonging to any negotiation or merchandize or any other thing to the Ship or trade appertaining And first for the use of the Sea it self the Law holds it to be ff adlegem Rhodian de Jactu tot tit common and that every one hath right to trade traffique upon the same so that it be without the prejudice of that Prince or Land to whom the Sea is adjoyning The like may be said for the shore it selfe so that it be either for the refreshing of themselves
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
from things existent as colours simple and mixt divided by halfes or quarters or by lines direct crosse overthwart or such other then how each of these is to bee carried wherein Art must follow Nature that every thing figured be borne according to the nature of that which it doth figure and not otherwise and therefore as in ensignes flagges or standards the speare or shaft goeth before the streamer or colours follow after so the face of every creature that is figured or described in the banner or hatchment must looke unto the shaft or speare unlesse a man beare two creatures one looking toward the other for then this observation hath no place for vaine it is to conjecture where things are certain otherwise it is the nature of the face to goe before and the body to follow after and the like reason is of the parts of every creature which is likewise borne in Armor which are distinguished by before and behinde whose site must be such that the head looke to the speare otherwise would it seeme to goe backe like a monster but if the forepart alone of any creature be borne in a Scucheon as often it happeneth that men give onely a Lyon Beare or Buls head for their Armes then must not the head directly looke unto the shaft but aside further every of these creatures be so described in the coate as his vigour and generositie be best set out whether it be a fierce or savage beast or a milde and gentle creature But for colours his rule is that the noblest colour be put in the first part of the field howsoever the coate be divided quarter or pale And of colours the golden colour is the chiefest as that which doth figure the Sunne which is the fountaine of light which is most acceptable to every mans eye The next is Purple or Red which doth figure the fire that is the highest and noblest of the foure Elements and next the sunne it selfe in dignitie The third is Blew of the Heralds called Azure and Ceruleus in Latin which figureth the Aire which is a cleere and transparent body and most capable of light and commeth in nobility next after the fire The fourth is White which commeth neere to the Light and therefore is more noble than Black that draweth neere to darknesse and therefore is the basest of all Colours And for mixt colours as every one hath more or lesse of White or Black so either they are nobler or baser in reputation or degree And thus much in generall as concerning the knowledge of Armes SECT 7. Concerning the Places and Successions of Princes and other honourable Personages and first of their Places NOw followeth what the Civile Law holdeth as concerning Princes and other honourable Persons and their successions and places which a grave Judge of this Land hath anciently acknowledged to belong unto the Civile Nedham 37. Hen. 6. fol. 21. Law By the Civile Law all power commeth from God as the Scripture teacheth and among powers the two greatest are the Empire and the Priesthood for as God hath ordeined the one to rule the outward man and to bring all his actions within the compasse of reason and so to establish common-wealths and to order the same So also hath hee provided the other for the instruction of the inward man and the planting of Religion among men By the Empire I understand not onely the Empire of Rome which sometimes bare rule over most part of the world at the least ten mighty Kingdomes which now are growne into particular Empires and Monarchies themselves but also every severall Kingdome which acknowledgeth no other Emperour than his owne Soveraigne for howsoever they differ in name and title yet is the office it selfe all one For every one of them is Gods immediate Vicar upon earth in their owne kingdomes for matters appertaining unto Justice Whereupon the Civile Law gives them very honourable titles sometimes tearming them Gods upon earth for the great authority they have over ff de leg 2. l. ff de legat 2. l. C. 4 tit 1◠C. 1. tit 3 l. 56. C. 1. tit 1. l. 5. other men under God sometimes Ministers of God for the service they doe God in their common-wealths somtimes most holy and most religious for the care they ought to have about Religion and correcting of those things which are done against the feare of God for a King ought in all things to propound the word of God before him for his C. 1. tit 1 l 5. rule and to follow the doctrine of the Apostles somtimes they are called most milde because a King in all the course of his life but specially in matters of punishment ought to imitate the mercie and favour of Almighty God C. 5. tit 4 l. 23. Although the Emperour or King be reckoned among his Nobilitie because he should not be puft up with the glorie L. fin C. de ver signif c. de dignitat l. 8 lib. 12. of his place conceive he were of a more excellent mould than the rest when indeed wee are all of one and the selfe same clay yet he is both by the ordinance of God and man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as the Apostle tearms him among them that 1 Petric 2. ver 13. is one who is supreame Soveraigne above the rest and whom they ought in all things to obey so it be not against the Law of God and common Justice for himselfe is in steed of the whole Law yea he is the Law it selfe and the Abc. signific via ext de penitentiis c. C 6 t 23. l. 19. C. de testib l. omnium onely interpreter thereof as in whose breast is the whole knowledge of the same which albeit the Doctors doe hold with a qualification as thereby understanding not onely the Princes person but also his Chancellours both which put together make up a perfect state of a Prince yet forasmuch as all that benefit of wisdome and government that commeth from them unto the Common-wealth is principally derived from the Prince as from the head who hath vouchsafed to make them as it were members of his body and so by them to derive the power of his government unto all it may be rightly said that in the Princes breast resteth the fulnesse of all knowledge for the well ordering of his common-wealth for what they see they see for him what they heare they heare for his use what they understand they understand to doe him service and so consequently of the rest of the actions of the minde and body they obey the Prince as their Soveraigne so then as the Prince hath the primacie in the government of his common-wealth and all those which governe under him governe by and for him so also hath he the precedencie and protoclisie or foresitting in all assemblies before the rest and such other as have precedencie or foresitting have it by the Princes indulgencie Next unto the
us in the Ecclesiasticall Courts is that I find Glanvill Glanvill lib. 12. cap. 15 de Legibus Angliae who himselfe lived under Henry the second and was Lord chiefe Justice of England in his dayes sort to the Ecclesiasticall Courts the plea of Tenements where the suit is betweene two Clerkes or betweene a Clerke and a Lay man and the plea is De libera eleemosina feodi Ecclesiastici non petitur inde recognitio whether the frank fee be Lay or Ecclesiasticall where also is farther added that if it be found Idem lib. 13. cap. 25. by the verdict of legall and sufficient men that it is of Ecclesiasticall fee it shall not bee after drawne to Lay fee no though it be held of the Church by services thereunto due and accustomed secondly whereas land is demaunded in Idem lib. 7. cap. 18. marriage by the husband or the wife or their heire and the demaund be against the giver or his heire then it shall be at the choice of the demander whether he will sue for the same in the court Christian or in the secular Court For saith he it pertaineth unto the Ecclesiasticall Courts to hold plea of dowries which he calleth Maritagia if so be the plaintife so make choice of those Courts for the mutuall affiance that is there made betweene the man and the wife for marriage to be had between them and there is a dowry promised unto the man by the womans friends neither shall this plea bee carried unto the temporall Courts no though the lands be of Lay fee so that it be certaine the suit is for a Dowry but if the suit be against a stranger it is otherwise Againe the Kings prohibition for bidding the Clergie the dealing in many things which are of Lay fee forbids them Anno 24. Ed. 1. no one thing that is of Ecclesiasticall fee and to shew the Princes meaning precisely therein that it was not his intent by that Prohibition to restrain the Ecclesiasticall Judges for proceeding in matters of Ecclesiasticall fee hee sets downe in very tearmes these words Recognisances touching Lay fee as though he would hereby signifie to all men that he would not touch matters of Ecclesiasticall fee which did then wholly and properly appertaine to the triall of the Christian Court as hath beene before vouched out of Glanvill who for the place he then held may be thought to have knowne the Lawes of England as then they stood and the right interpretation thereof as well as any man then or now living And yet because there were some things of Lay fee which the Clergie then had cognisance of and as yet have in some measure as causes and matters of mony chattels and debts rising out of Testaments or Matrimonie because hee would have whatsoever belonged to the Clergy to be undoubted excepteth them from those things which belong to the Crown and dignity and leaveth them to the ordering of the Christian Courts which is nothing else but an affirmance of that which Glanvill and the rest of the ancient English Lawyers Bracton and Britton said before Adde hereunto the provinciall Constitution Aeterna de poenis made in the dayes of Henry the third which plainly shewes that in those dayes all personall suits betweene either Clerk Clerk or between Lay-men complaynants Clerkes defendants for ever the Plaintife must follow the Court of the Defendant which to the Ecclesiasticall men then was the Ecclesiasticall Court were tryed by the Spirituall Law not by the Temporall Law which practise for that it doth accord with the judgement of those ancient Lawyers that have beene before cited and with the Prohibition it selfe which there restraineth onely calling of Lay men to make recognisances of matters of Lay see it may be a great argument that these things were of the Ecclesiasticall right in those dayes from which I see not how the Ecclesiasticall Courts are falne for I see neither Law nor Statute to the contrary unlesse perhaps they will say the Statute of the 25. of Henry 8. cap. 19. tooke the same away as being hurtfull to the Kings Prerogative royall and repugnant 25. H. 8. cap. 19. to the Lawes Statutes Customes of this Realme which whether they be or be not taken away by the stroake of that Statute I leave it to men of better experience in these matters than my selfe to judge But yet this I finde by experience to be true That where there are two divers jurisdictions in one Common-wealth unlesse they be carefully bounded by the Prince an equall respect carried to both of them so farre as their places and the necessary use of them in the Common-wealth requires as the advancement of the one increaseth so the practise of the other decreaseth specially if one have got the countenance of the State more than the other which is the onely cause at this day of the overflowing of the one and the ebbing of the other but it is in his Sacred Majestie to redresse it not by taking any thing from that profession that is theirs but restoring to this profession that which is their owne but hereof 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 SECT 5. That some titles of the Canon Law are granted to be of absolute use with us and that of some other there is question made FOr the rest of the matters that belong to the tryall of the Ecclesiasticall Courts some are acknowledged to be absolutely in use some other are challenged to be but in a certaine measure in use In absolute use are those which never had any opposition against them which almost are those alone which belong to the Bishops degree or order for all things which come within the compasse of the Ecclesiasticall Law are either belonging to the Bishops degree or his jurisdiction To his degree or order belong the ordering of Ministers Deacons the confirmation of Children the dedication of Churches and Churchyards and such like none of which have beene challenged at any time to belong to any other Law The second sort is of them that belong to the Bishops jurisdiction which is partly voluntary partly litigious Voluntarie is when those with whom the dealing is stand not against it but litigious it is when it is oppugned by the one part or the other of this latter sort many things in sundry ages have beene called in question but yet rescued and recovered againe by the wise and grave Judges themselves who have found the challenge of them to be unjust But what doth belong to either of them in private or what causes doe appertaine to the whole Jurisdiction in generall because they have beene already particularly set downe by that famous man of worthy memory Doctor Cosin in his Cosin in his Apologie part 1. c. 2. learned Apologie for certaine proceedings in Ecclesiasticall Courts I will not make a new catalogue of them but send the Reader for the knowledge thereof unto his Booke but yet in my
passage will I note which of them have beene most chiefly oppugned and as occasion shall fall out speake of them PART III. CHAP. I. SECT 1. How the Jurisdiction which is of Civile and Ecclesiasticall cognisance is impeached by the Common Law of this Land and first of the impeachment thereof by the Statute of Praemunire facias ANd thus much as concerning those parts of the Ecclesiasticall Law which are here in use with us Now it followeth to shew wherby the exercise of that Jurisdiction which is granted to bee of the Civile and Ecclesiasticall cognisance is defeated and impeached by the Common Law of this Land which is the third part of this Division The impeachment therefore is by one of these meanes by Praemunire by Prohibition by Injunction by Supersedeas by Indicavit or Quare impedit but because the foure last are nothing so frequent nor so harmfull as the others and that this Booke would grow into a huge volume if I should prosecute them all I will onely treat of the two first and put over the rest unto some better opportunitie A Praemunire therefore is a writ awarded out of the Kings What is a Praemunire Bench against one who hath procured out any Bull or like proces of the Pope from Rome or else-where for any Ecclesiasticall place or preferment within this Realme or doth sue in any forreine Ecclesiasticall Court to defeat or impeach any Judgement given in the Kings Court whereby the body of the offender is to bee imprisoned during the Kings pleasure his goods forfeited and his lands seized into the Kings hand so long as the offender liveth This writ was much in use during the time the Bishop of Rome's authoritie was in credit in this land and very necessarie it was it should be so for being then two like principall authorities acknowledged within this Land the Spirituall in the Pope and the Temporall in the King the Spirituall 25. Ed. 2. 27. Ed. 3 c. 1. 38 Ed. 3. c 1. 2. 7. Rich. 2. c. 12. 13. Rich 2. c. 2. 2. H. 4 cap. 3. grew on so fast on the Temporall that it was to be feared had not * Neverthelesse even out of these Statutes have our Professours of the Common Law wrought many dangers to the Jurisdiction Ecclesiasticall threatning the punishment conteined in the Statute Ann. 27. Edw. 3. 38. ejusdem almost to every thing that the Court Christian dealeth in pretending all things dealt with in those Courts to be the disherison of the Crowne from the which and none other fountaine all Ecclesiasticall Jurisdiction is now derived whereas in trueth Sir Thomas Smith saith very rightly and charitably that the uniting of the Supremacie Ecclesiasticall and Temporall in the King utterly voideth the use of all those Statutes Nam cessante ratione cessat lex and whatsoever is now wrought or threatned against the Jurisdiction Ecclesiasticall is but in emulation of one Court to an other and by consequent a derogation of that authority from which all Jurisdiction is now derived and the maintenance whereof was by those Princes especially purposed D. Cowel in the Interpreter these Statutes beene provided to restraine the Popes enterprises the spirituall Jurisdiction had devoured up the temporall as the temporall now on the contrary side hath almost swallowed up the spirituall But since the forreine authoritie in spirituall matters is abolished and either Jurisdiction is agnised to be setled wholly and onely in the Prince of this land sundry wise mens opinion is there can lye no Praemunire by those Statutes at this day against any man exercising any subordinate Jurisdiction under the King whether the same bee in the Kings name or in his name who hath the same immediatly from the King for that now all Jurisdiction whether it be Temporall or Ecclesiasticall is the Kings and such Ecclesiasticall Lawes as now are in force are called the Kings Ecclesiasticall Lawes and the Kings Ecclesiasticall Courts for that the King cannot have in himselfe a contrarietie of Jurisdiction fighting one against the other as it was in the case betweene himselfe and the Pope although hee may have diversitie of Jurisdiction within himselfe which for order sake and for avoyding of confusion in government hee may restraine to certaine severall kindes of causes and inflict punishment upon those that shall goe beyond the bounds or limits that are prescribed them but to take them as enimies or underminers of his state he cannot for the question here is not who is head of the cause or Jurisdiction in controversie but who is to hold plea thereof or exercise the Jurisdiction under that head the Ecclesiasticall or Temporall Judge Neither is that to move any man that the Statutes made in former times against such Provisors which vexed the King and people of this land with such unjust suits doe not only provide against such Proces as came from Rome but against all others that came else-where being like conditioned as they for that it was not the meaning of those Statutes or any of them therby to taxe the Bishops Courts or any Consistory within this land for that none of them ever used such malepert sawcinesse against the King as to call the Judgements of his Courts into question although they went farre in strayning upon those things and causes which were held to be of the Kings temporall cognisance as may appeare by the Kings Prohibition thereon framed And beside the Archbishops Bishops and other prelates of this Land in the greatest heat of all this businesse being then present in the Parliament with the rest of the Nobility disavowed the Popes insolencie toward the King in this behalfe and assured him they would and ought to stand with his Majestie against the Pope in these and all other cases touching his Crowne and Regalitie as they were bound by their allegeance so that they being not guilty of these enterprises against the King but in as great a measure troubled in their owne jurisdiction by the Pope as the King himselfe was in the right of his Crowne as may appeare out of the course of the said Statutes The word Elsewhere can in no right sence be understood of them or in their Consistories although Et le stat est in Curia Romana vel alibi le quel alibi est a entender en la Court l'Euesque issint que si hōme soit sue la pur chose que appent al Commen ley il aura Praemunire Fitzherb Nat. Bre. Tit. Praemunire facias some of late time thinking all is good service to the Realme that is done for the advancement of the Common Law and depressing of the Civile Law have so interpreted it but without ground or warrant of the Statutes themselves who wholly make provision against forreine authority and speake no word of domesticall proceedings But the same word Elsewhere is to be meant and conceived of the places of remove the Popes used in those dayes being
hold plea of any thing that is in the said Proviso conteined but it is rather directive and sheweth where the Ecclesiasticall Judge is to give way to immunities and to pronounce for them so that for any thing is conteined in this Proviso to the contrary the cognisance of these matters especially Priviledge Prescription and Composition still remaineth at the triall of the Ecclesiasticall Law as they did before this Proviso was made for Deprascript lib. 2. tit 26. De Privileg lib. 5. tit 33. Tythes and other Ecclesiasticall dueties as may appeare by the severall titles in the same Law hereon written And for the other words Law and Statute therein mentioned when as the King hath two Capacities of government in him the one Spirituall the other Temporall and his high Court of Parliament wherein Lawes are made doth stand as well of Spirituall men as Temporall men and so ought to stand in both houses if the ancient Booke De modo tenendi Parliamenti be true and authenticall which makes the upper House of three States the Kings Majestie the Lords Spirituall and the Lords Temporall and the lower House in like sort of three other the Knights the Procurators for the Clergie and the Burgesses and his Majestie hath within this Realme aswell Ecclesiasticall Lawyers as Temporall which are no lesse able to judge and determine of Ecclesiasticall matters then the Temporall Lawyers of temporall businesse It is not to be imagined but as his sacred Majestie will have those Lawes to be held Temporall and to have their constructions from Temporall Lawyers which are made and promulged upon Temporall rights and causes So also his Highnesse pleasure is and ever hath beene of all his predecessours Kings and Queenes of this Land that such Lawes and Statutes as are set out and published upon Ecclesiasticall things and matters shall be taken and accounted Ecclesiasticall and interpreted by Ecclesiasticall Lawyers although either of them have interchangeably each others voyce in them to make them a Law And that the King doth infuse life into either of the Lawes when as yet their substance is unperfect and they are as it were Embryons is in temporall matters by his temporall authoritie and in spirituall matters by his spirituall authoritie for to that end he hath his double dignitie in that place as also the Ecclesiasticall Prelates sustaine two persons in that place the one as they are Barons the other as they are Bishops So that even the orders of the House doe evince that there are two sorts of Lawes in that place unconfounded both in the head and the body although for communion sake and to adde more strength to each of them the generall allowance passeth over them all And as they rest unconfounded in the creation of them so ought they to be likewise in the execution of them as the Temporall Law sorts to the Temporall Lawyers so the Spirituall Lawes or Statutes should be allowed and allotted unto the Spirituall Lawyers And as the nomination of these words Law or Statute in this precedent Proviso makes not the Law or Statute Temporall but that it may remain wholly Ecclesiasticall by reason of the Spirituall matters it doth containe the power of him that quickneth it powreth life thereinto so much lesse can the inserting of these tearmes Priviledges Prescriptions or Composition reall intitle the Common Law to the right thereof or the Professours of the said Law to the interpretation thereof for that matters of these titles so farre as they concerne Tythes and other Ecclesiasticall dueties have beene evermore since there hath beene any Ecclesiasticall Law in this Land which hath beene neere as long as there hath beene any profession of Christianitie with us of Ecclesiasticall ordinance neither ever were of the Temporall cognisance untill now of late that they transubstantiate every thing into their owne profession as Midas turned or transubstantiated every thing that hee touched into gold CHAP. III. SECT 1. How it comes to passe that when tythes were never clogged with custome prescription or composition under the Law they are clogged with the same under the Gospel and the causes thereof BUt here it will not bee amisse to inquire since Tythes came in the beginning of the primitive Church within a little time after the destruction of Jerusalem and the subversion of the Jewes policie unto the Christian Church and common-wealth void of all these incumbrances as shall appeare after by the testimonie of sundrie of the ancient Fathers which were neere the Apostles time how it comes to passe since Tythes are no lesse the Lords portion now than they were then and in the Patriarches time before them that these greevances have come upon them more under the Gospel than ever they did under the Law for then never any Lay man durst stretch out his hand unto Malach. 3. them to diminish any part thereof but hee was charged with robberie by the Lords owne mouth and in punishment thereof the heavens were shut up for giving raine unto the earth and the Palmer-worme and Grashopper were sent to devour all the greene things upon the earth And for Ecclesiasticall men it is not read any where in the Scripture that ever they attempted to grant out any priviledge of Tythes to any person other than to whom they were disposed by the Law or to make any composition thereof betweene the Lay Jew and the Lords Levites every of the which have beene not onely attempted against the Church in Christianitie but executed with great greedinesse so farre worse hath beene the state of the Ministery under the Gospel than was the condition of the Priests and Levites under the Law SECT 2. That the causes are two fold First The violent intrusion of Lay men and secondly The over-much curiositie of Schoole men and first of the first cause and therein concerning Charles Martels Infeudations and the violent prescriptions ensuing thereupon THe beginning whereof although it be hard for mee to finde out because there is small memory thereof left in Stories yet as farre as I can by all probabilities conjecture this great alteration in Ecclesiasticall matters came by two occasions the one by the violence of the Laitie thrusting themselves into these Ecclesiasticall rights contrary to the first institution thereof for when they were first received into the Christian world they were received and yeelded to for the benefite of the Clergie onely as in former time under the Law they had beene for the use of the Priests and â—evites onely The other was the too too much curiositie of Schoolmen who being not content with the simple entertainment of Tythes into the Church as the ancient Fathers of the primitive Church received them would needes seek out how and in what right and in what quantitie this provision belongs unto the Church wherein they did by their overmuch subtilty rather confound the truth than make that appeare which they intended to doe By the first of these was
against this it was provided in the Nanneten Councell C. 16. And the Councell at Arles under Charles the great expresly forbiddeth the Lay Patron munera exigere à Prasbyt propter commendationem Ecclesia See also the Capitul Addit 3. C. 63. 30 of the Councell of Mentz And it was the complaint of the Palentine Councell that the Patrons Sons and nephewes were wont to exact great dinners of the Rectors as if they would feed upon the Incumbent and eate out their presentation And of these things say the Fathers of that Synod Relatione certâ— didicimus we are credibly informed Conso Pal. a. 13â—â— Constit 14. We find also that the Patron somtimes for his own profit in the vacancy would reserve the Presentation during his pleasure Therefore it was decreed by the law of Laps that all Patrons should present after a certain time set downe where we are to note that the Canons allowed the Clergy Patron 6. Moneths libertie the Lay Patron but 4. And though this would not be received by the Common Law yet what needed the Student to tell the Doctour that hee saw no reason why a Clerke should haue more respect than a Lay-man but rather the contrarie C 31. whereas it is one of the greatest punishments that a Church man can have to be degraded from his Ministerie turned into a lay-man But to go on Some there were among the Patrons that had so litle conscience as to present their Clerke for his mony this is sharpely reprehended in the Councell at Tours c. 15. An. 813. where also it is said to be vitium late diffusum a corruption spread farre and wide Some others there were so wretchlesse as to rob the Church after the Rectors decease of her dowrie rebus mobilibus interdum immobilibus as it is noted of them in the Councell at Silizburgh where it is called detestabilis corruptela C. Nonnulli c. And C. Ad extirpand It seemeth also by the Councell at Meaulx that the Priests were sometimes employed by their Patrons secularâ— negotiatione villicatione turpi in secular negotiations and the meaner offices of husbandrie The Priests indeed are called Pastours by the great Shepheard of Israel but this must not be mistaken for when it is said that the Minister must attend his flocke the meaning is not that he should keepe sheepe These and many more were the Patrons enormities into which hee that listeth further to enquire shall be sooner weary of finding than of seeking them We have reserved for the last place that which of all other is most horrible 'T was enough to debase the Incumbent and despoyle the Church but horrerdum est dicere saith the 3. Lateran Councell C. 45. quod in necem Pralatorum prorumpere non formidant 't is a horrour to report it that nothing would content the Patrons but the life and blood of the Prelates c. Upon the rising of these insufferable exorbitances the Bishops called for their right againe but the redresse was not made all at once nor so soone in one place as another to which varietie diligent heed must be given in reading the Councells to this purpose The most notable reformation was attempted in the 3. Lateran Councell where the authoritie and consent of the Bishop is strongly reinforced Nos enim cum Laâ—ci non possunt nisiâ—us quod habent in alâ—â—s transferre hujusmodi concessiones viribus carere decernimus penitus â—rritas esse c. So Lucius in the Canon of the Printed Coppie but in MS. Bibl. Bod they are the words of Alexand. the 3 to the Abbots Priors c. and the whole Clergie of â—orke Diocesse This decree was accepted and ratified here at home as appeareth by the Synod holden in the year 1200. where every man is expresly forbidden extenore Concilâ—â— Lateranensis Decimas velalia Ecclesiastica beneficia sine Episcopali authoritate de manu Laici accipere according to the tenor of the Lateran Councel to receive any Tythes or Ecclesiasticall livings from a Lay-mans hand otherwise than by Episcopall authoritie Henry the fourth both for the convenable indowment of the Vicar there to doe divine service and informe the people and to keepe hospitalitie among them Albeit most of these Appropriations were principally in Monkes and Fryers and such other Religious persons yet were not Bishops Sees and Cathedrall Churches altogether free from them as I have before shewed in the Cathedrall Church of Salisburie to whom Henry the first appropriated neere twentie Churches in one day and the See of Winchester which hath had two benefices aunciently annexed to the Bishops table the Parsonage of Eastmeane and the Parsonage of Hambleden Neither do I doubt but the like was done in other Bishops Sees and other Cathedrall Churches if I had as good instruction to report of them as I have had information to speake of these And so farre as concering the first effect of Priviledges whereby sundry fat Benefices have beene injuriously drawne from their owne Churches and unnaturally appropriated to Monkeries and Frieries other secular religious places which as I have said hath bin partly the act of Lay men partly of Ecclesiasticall men SECT 5. Exemptions froÌ„ Tythes brought in by Pope Paschal favour towards all sorts of religious men and how they have beene restrained by Pope Adrian NOw followeth the second effect hereof and that is the exemption of these Religious mens possessions from payment of Tythes C. Ex parte tua glos in verb. laborum de Decim which is a priviledge of the Pope alone for Monkes anciently paid Tythes of their land before these priviledges as other Lay-men did But Pascalis the second casting a more favourable aspect towards Monkes and other Religious men than any of his Predecessours before time had done did order together with the Councell of Ments That neither Monkes nor other Religions persons or any other that lived in common should pay Tythes of their own labours Which immunitie in processe Eod. in dicta glos of time Pope Adrian recalled so farre as it concerned the rest of the Religious persons and limited it onely to the Cystertians Hosptallers Templers and those which were of the order of S. Johns in Jerusalem leaving onely to the rest freedome from paying Tythes of lands newly broken up and laboured with their owne hands and of their garden and of their cattell In which state the matter stood untill Innocent the thirds dayes who although hee were in no other point of better mould than the rest of the Popes were yet was he in this more pittifull towards poore Incumbents of Parish Churches than any of his predecessours had bin who seeing hereby the inconveniences of beggery and ignorance that grew upon sundry of the Parochian Priests by meanes of these Priviledges ordered in the second Lateran Councell holden in the yeare of grace 1120. that for such lands as any of the said foure Priviledged C. nuper
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
extinct in them but there was some outward shape or forme of the first ordinance left them so farre forth as that they made continuall prayers and intercessions to God for them but when it came once into the Laities hands there was not so much as a foot-step left of the first institution for they neither preach unto the people pray for them nor keepe any hospitalitie among them but spend all the whole revenues of the Church upon their private uses which many times are unfit for such Spirituall provision to bee spent in so that for the benefite of the Church the returne of them might be well wisht albeit in so farre as they are perplexed and intricated by the Lawes of this Land with private mens states it would be hard to be performed for the changing of them would be much like as if a man should move one stone in a vaulted worke such as the stonie roofes of many Cathedrall Churches and Colledges are where the taking of one stone away is the jeopardie of the whole building But yet let those to whom this doth appertaine consider whether in this it were better to please God than man CHAP. VI. SECT 1. That Tythes are a Parochian right and how Parishes in the Christian world came first to be instituted BUt now to returne thither where I left as every good Bishop or any of his Clergie did win any Conntrie-village which the Latins call Pagus to the Faith so they erected up a Church there and appointed a Pastor or Minister over them to informe them in the Law of God and to minister the Sacraments unto them and set out for his maintenance the Tythe of that Page or Village Hospinian De origine Monochatus to which he was assigned Pastor which they did in Tythes rather than in any other provision both because it was the Lords inheritance in all ages and appointed by him for the maintenance of such as served in his Tabernacle during the dispensation of the mysteries of the Law and now was returned againe into Gods hand by the expiration of the demise of them made unto the Levites during the said time of dispensation also because the people would be more easily induced to part with one part out of every ten of all the fruites of their grounds and labours of their hands unto the Minister than if there had beene any other regular imposition laid upon them for certaine it is Villages and Pages came more hardly and more lately unto the Faith than great Townes and Cities did and thereupon grew that name of opposition which was betweene Christians that dwelt in Cities and the Infidels that dwelt in Pages that the one were called Pagans the other were called Christians taking their names upon the difference of the places where they dwelt But from these Pages as I have said came first the use and practice of Tythes in the Christian world insomuch as after when any Law was made as concerning Tythes they held them evermore for a Parochian right onely and in no sort at the disposition of C. Cùm contingat de D 〈…〉 verb. de â—ure 〈…〉 n gloss the Bishop but in such cases as before is rehearsed insomuch that if a Bishop challenged any Church in his Diocesse he challenged it not in respect of any fee simple hee had in it but in regard of the Spirituall Jurisdiction he had over it And therefore the Authors of this opinion were Ab. ca. nuper de Decim cap. deputati de ludiciis num 16. farre out of the way when as they thought the Bishop had like right in the Tythes of a Church of his Patronage to give and bestow them as hee listeth as hee hath in his demeanes and other his Temporall Lands either to lease them out or divide them into Tenancies as him best liketh Neither is that case cleere or without question whereby they pretend a Bishop being seised in a Manor may prescribe the Tythes of the demeanes thereof by an immemoriall prescription for him and his Tenants and Farmers for yeares and Tenants at will to be exonerated acquitted and priviledged from all Tythes growing thereupon which if it be against an other person than himselfe may hap to bee true although perhaps also that be questionable for that it is not long since Lay-people were capable of that right neither could themselves by Law of the Church at any time grant such Spirituall Rights as these are to a Lay-man either in Feudum or Emphiteusim without danger of Excommunication Ab. cap. ad hoc De Decimis numer 4. or deposition of their owne place as hath beene before shewed But if himselfe or his predecessours were Parsons there either in the right of their Bishoprick as hath beene of late before remembred or that the Benefice was annexed unto their See for the provision of their Table as many Bishopricks had some one or more Benefices appropriate unto them to this purpose then could they not prescribe the Tythes in such sort as is pretended For albeit no prescription proceeds without possession yet no man can prescribe against himselfe although hee be in possession for that evermore there must be two persons in a prescription the one which doth prescribe the other against whom it is prescribed and therefore in these cases it is never said they hold their Tythes by prescription but in the right of their Church or Parsonage In either of which cases if they were Lords of the Mannor and Parsons of the Parsonage together it is not to bee thought they would so respect the good of their Farmer as that they would either hurt their Church or prejudice their owne Table for their Farmers sake which they must doe if they suffer a Prescription to runne against the Church or themselves to exempt the demeanes of the Mannor from payment of Tythes which were due both to the Church and themselves For they were men that both knew in their conscience how much they were bound unto the Church in this behalfe and they were not ignorant what prejudice they should do unto themselves if by prescription they should yeeld to exempt so necessaire a provision for the maintenance of their Hospitality as the Tythes of the demeanes of a whole Mannor and their tenancies are for no small part of their commendation stood in those dayes in their hospitality and therefore it is not to be presumed that they would easily cut off any provision that was fit for the same Besides if by either of these two wayes the Bishop was Parson of the place then did the fruites of the Benefice during every Vacation of the Bishoprick not come to the King as they now doe whereby the Parsonage and Mannor are both consolidated into one for that they are now both holden to be Temporalties but the Parsonages came to the Archbishops of the Province as a spiritualtie granted to his See by priviledge during the vacancie of the Sees
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