sayth that he offendeth conscyence iÌ„ that he obserueth nat the lawe of the churche for that he taketh nat theyr assente / than they offende in iuginge hym to offende / that offendeth nat And therfore the sure way is iÌ„ this case to Iuge bothe the sayd lawes of suche effecte as they be / and nat to set an offence of conscience by brekyng of the said decre whiche standeth nat iÌ„ effecte iÌ„ this behalfe within this realme ¶ If a man fynde beastes in his grounde doynge hurte / whether may he by his owne auctoritie take them and kepe them tyl he be satysfyed for the hurt The .xxvii. Chapitre DOctoure This question is made in the SuÌ„me called summa rosella in the title of restytucyoÌ„ / that is to saye restitucio .xiii. the .ix. article / and there it is answered that he may nat take them for to holde them as aplegd tyll he be satisfied for the hurte but that he may take them kepe them tyll he knowe who oweth them that he may therby lerne agaynst whome to haue his remedye Is nat the lawe of the realme so in lyke wise ¶ StudeÌ„t No verily / for by the lawe of the realme he that in that case hath the hurte may take the beastes as a dystresse and put them iÌ„ a pounde ouert so it be within the same shyre / there let them remayn tyll the owner will make hym amendes for the hurt ¶ Doctour what callest thou apound ouerte ¶ Student A pounde ouerte is nat onely suche poundes as be comonly made in townes and lordshyppes for to put in beestes that be dystreyned / but it is also euery place where they may be iÌ„ lawfully nat makiÌ„ge the own our an offeÌ„der for ther beyng ther that it be there also that the owner may lawfully gyue the beestes meate driÌ„ke whyle they be iÌ„ pounde ¶ Doctor. And if they dye iÌ„ pouÌ„de for lake of mete whose ieopereye is it ¶ StudeÌ„t If it be suche a pouÌ„de ouerte as I speke of it is at the peryll of him that owyth the beestes so that he that had the hurte shall be a lybertie to take his accion for the trespas if he wyll if it be nat a lawfull pounde theÌ„ it is at the peryll of hym that dystrayned / and so it is if he driue them out of the shyre And they dye there ¶ Doctoure I put case that he that owyth the beestes offer suffycyeÌ„t ameÌ„des the other wyll nat take it but kepeth the beastes styll in pounde / may nat the ouer take them out ¶ Student No for he may nat be his owne iuge And if he do an accyon lyeth agaynst hym for brekyng of the pounde / but he must sue a repleuyn to haue his beastes delyuered hym out of pounde / and therupon it shall be tryed by .xii. men whether the amendis that was offred were suffycieÌ„t or nat / if it be founde that the offer was nat suffycyent than he that hath the hurte shall haue suche amendes as the .xii. meÌ„ shall asses ¶ Doctoure If it be founde by the .xii. men that the amendes were suffycent / shall he that refused to take it haue no punysshment for his refusell for kepyng of the beestes in pounde after that tyme. ¶ Student I thynke no / but that he shall yeld damages in the repleuyn because the yssue is tryed agaynste hym ¶ Doctoure I put case that the beastes after that refusell dye in pouÌ„de for lacke of meate at whose ieoperdie is it than ¶ Student At the ieoperdie of him that owid the beastes as it was before for he is bounde at his peryll by reason of that wronge that was done at the begynnynge to se that they haue meate as loÌ„ge as they shal be in pouÌ„de oneles the kynges writte come to deliuer them he resisteth it / for after that tyme it wyll be at his ieoperdye if they dye for lacke of meate the dammages shal be recouered in an accion broughte vpon the statute for disobeynge the kynges writte ☞ Whether a gyfte made by one vnder the age of .xxv. yere be good The .xxviii. Chapitre DOctoure It appereth in Summa angelica in the title donacio prima the .vii. article that a maÌ„ before the age of .xxv. yere may nat gyue withoute it be with the auctoritie of his tutoure Is it nat so likewyse at the comon lawe ¶ Student The age of InfauÌ„tes to gyue or selle theyr landes goodes in the law of EnglaÌ„de at his .xxi. yere / or aboue / so that after that age the gifte is good / and before that age it is nat good / by whose assent so euer it be / except it be for his meate drinke or apparell / or that he do it as executour in perfourmaunce of the will of his testatour or in some other lyke cases that nedeth nat to be reherced here / and that age muste be obserued in this realme in lawe conscience nat the sayde age of .xxv. yere ¶ Doctoure I put case it were ordeyned by a decree of the churche that if any maÌ„ by his will bequethe goodes to an other / willeth that they shal be deliuered to hym at hê full age that iÌ„ that case .xxv. yere shal be takeÌ„ for the ful age shal nat that decre be obserued stande good after the lawe of EnglaÌ„de ¶ StudeÌ„t I suppose it shal nat for though it beloÌ„ge to the churche to haue the ê“bate the execucioÌ„s of testameÌ„tê made of goodes chatels except it be in certayne lordshypes seygnories that haue theÌ„ by prescripcion / yet the churche maye nat as it semeth determine what shal be the lawfull age for any persone to haue the goodes for that beloÌ„geth to the kynge his lawes to determine / therfore if it were ordeyned by a statute of the realme that he shulde nat in suche case haue the goodes tyll he were of the age of .xxv. yere that statute were good to be obserued as well in the spirituall lawe as in the law of the realme if a statute were good in that case / than a decre made therof is nat to be obserued / for the orderynge of the age may nat be vnder two seuerall powers / one ê“pertie of euery good lawe of man is that the maker excede nat his auctoritie / and I thynke that the spirituall Iuges in that case ought to iuge the full age after the lawe of the realme seynge that the matter of the age concerneth temporall goodes / I suppose ferther that as the kynge by auctoritie of his parliament may ordeyne that all wylles shal be voyde that the goodes of euery maÌ„ shal be disposed in suche maner as by statute shulde be assigned that more stronger he maye appoynte at what age suche willes as be made shal be perfourmed ¶ Doctoure Thynkest thou than that the kyng may take awaye the power of the ordinarie
is sayde there that suche thynges come to hym by reason of his owne persone / whiche saiÌ„ges I thinke accorde with the lawe of the realme But for as moche as in the sayd article in diuers other places of the sayd chapitre / in diuers other chapitres of the sayd summe is put great diuersitie betwene suche goodes as a clerke hathe by reason of his churche and suche goodes as he hath by reason of his person and that he muste dispose suche goodes as he hath by reason of his churche in suche maner as is appoiÌ„ted by the lawe of the churche / so that he maye nat dispose them so liberally as he may the goodes that come by reasoÌ„ of his owne persone / therfore I shall a litle touche what spirituall meÌ„ may do with theyr goodes after the lawe of the realme Fyrst a Bisshop of suche goodes as he hath with the deane the chapitre he may nether make gyfte nor byquest / but of suche goodes as he hath of his owne by reason of his churche or of the gifte of his auncestres or of any other / or of his patrimony he maye bothe make giftes byquestes lawfullye And an Abbot of the goodes of his church may make a gyfte the gyft is good as to the lawe But what it is in conscieÌ„ce that is after the cause intente qualitie of the gyfte / for if it be so moche that it notablie hurteth the house or the couent / or if he gyue away the bokes or the chalyces / or suche other thynges as belonge to the seruice of god / he offendeth in conscience / yet he is nat punisshable in the lawe / ne yet by a sub pena after some meÌ„ ne in none other wyse but by the lawe of the churche as a waster of the goodes of his monastery But neuertheles I will nat fully holde that opinion as to that that belongeth necessaryly to the seruice of god / whether any remedye lye agaynst hym or nat / but remyt it to the iugement of other And a deane a chapitre a mayster bretherne of goodes that they haue to them selfe And also of goodes that they haue with the chapitre bretherne the same diuersite holdeth as appereth before of a Bisshope the deane chapitre / excepte that in the case of a mayster bretherne the goodes shal be ordered as shal be assigned by the fundacion And moreouer of a parson of a churche vicar / chaunterie preest / or suche other / all suche goodes as they haue / as well suche as they haue by reson of the personage / vicarage / or chauÌ„tery / as that they haue by reason of theyr owne persone they maye lawfully gyue bequethe where they will after the comoÌ„ lawe And if they dispose parte amonge theyr parysshens parte to the byldinge of churches / or gyue parte to the ordinarie / or to poore men / or in suche other maner as is apoynted by the law of the churche they offende nat therein / oneles they thynke them selfe bounden therto by duetie by authorite of the lawe of the churche / nat regardynge the kiÌ„ges lawes / for if they do so it semeth they resiste the ordenaunce of god / whiche hath gyuen power to princes to make lawes But there as the Pope hath soueraintie in temporal thynges as he hath in spirituall thynges / there some saye that the goodes of prestes muste in conscience be disposed as is conteyned in the sayd summe / but that holdeth nat iÌ„ thê realme / for the goodes of spuÌ„al meÌ„ be teÌ„poral iÌ„ what maner so euer the come to theÌ„ / muste be ordered after the temporal law as the goodes of the teÌ„porall meÌ„ muste be How be it if there were a statute made iÌ„ this case of lyke effecte in many poiÌ„tes / as the law of the churche is I thynke it were a right good a profitable statute ☞ Who shall succede a clerke that dyeth intestate ⧠The .xl. Chapitre STudent In the sayd summe called rosella in the chapitre Clericus quartus the .vii. article / is asked this question / who shall succede to a clerke that dyeth intestate And it is answered that in goodes gotteÌ„ by reason of the churche the churche shall succede But in other goodes his kinnesmen shall succede after the order of the law / if there be nat kinnesmen than the churche shall succede And it is there sayd forther that goodes gotten by a canon seculer by reason of his churche or prebende shall nat go to his successour in the prebende / but to the chapitre But where one that is beneficed is nat of the congregacioÌ„ / but he hath a benefice clerely seperate / as if he be a parsone of a parysshe churche or is a president or an archedeacon nat beneficed by the chapitre / than the goodes gotteÌ„ by reason of his benefice / shall go to his successoure nat to the chapitre / none of these sayenges holde place in the lawes of Englande ¶ Doctour what is thaÌ„ the law if a paÌ„rsone of a churche or a vycar in the countrey dye intestate / or if a chanon seculer be also a parson haue godes by reason therof also by a prebende that he hath in a cathedrall church he dye intestate / who shall haue his goodes ¶ Student At the comon law the ordinarie in all these cases may administre the goodes after he must commit administracion to the next faythe full frendes of hym that is ded intestate that wyll desyre it as he is bounde to do where lay men that haue goodes dye intestate And if no maÌ„ desyre to haue administracion than the ordinarie may administre sethe dettes payde he muste beware that he paye the dettes after suche order as is appoynted in the comon law / for if he pay dettes vpon simple coÌ„tractes before an obligacion he shal be coÌ„pelled to pay the dette vpon the obligacion of his owne goodes if there be nat goodes sufficieÌ„t of hym that dyed intestate / though it be suffered in suche case that the ordinarie maye pay pouÌ„de pounde like that is to apporcion the goodes amonge the dettours after his discrecion / yet by the rigoure of the comon lawe he might be charged to hym that caÌ„ fyrste haue his iugement agaynst hym And ferthermore by that is sayde afore in the laste chapitre appereth if a Bisshope that hath goodes of his patrimony / or a mayster of a colage / or a deane of goodes that they haue of theyr owne onely to them selfe dye intestate / that the ordinarie shall commit administracion therof as before appereth if they make executours than the executours shall haue the ministracion thereof But the heyres nor the kynnesmeÌ„ by that reason onely that they be heyres or of kynne to hym that is decessed shall haue no medlyng with his goodes except it be by
shulde be taken fro hym agaynst the lawe / there as the lawe coulde nat helpe hym that the lawe wyll nat suffre ¶ Doctoure yet me thynketh alway that the title of the laps iÌ„ such case is gyuen by the lawe of the churche nat by the teÌ„porall lawe / therfore it forseth but littell / what the temporall lawe wyll in it as me semeth ¶ Student In suche countreys where the Pope hath power to determine the righte of temporall thynges I thynke it is as thou sayest / but in this realme it is nat so And the righte of presentement is a temporall thynge a temporall enheritaunce / therfore I thynke it belongeth to the kynges lawe to determine / also to make lawes who shall present after the .vi. monethes / as wel as before / so that the title of examinacion of abilitie or none abilitie be nat therby taken fro the ordinaries / in lykewise it is of auoydauÌ„ce of benefices / that is to say / that it shal be iuged by the kynges lawes whan a benefice shal be sayd voyde whaÌ„ nat / nat by the law of the churche as whan a person is made a Bisshope or accepteth another benefice without liceÌ„ce / or resigneth / or is depriued in these cases the comoÌ„ law sayth that the benefices be voyde so they shulde be though a law were made by the churche to the coÌ„trary / so if the Pope shulde haue any title in this case to present / it shulde be by the lawe of the realme And I haue nat sene ne herde that the lawe of the realme hath gyueÌ„ any title to the Pope to determine any teÌ„porall thyng that may be lawfully determined by the kynges court ¶ Doctoure It semeth by that reason that thou haste made nowe that thou preferrest the kynges authoritie in presentemeÌ„tes before the Popes / that me thynketh shulde nat stande with the lawe of god syth the Pope is the vicar generall vnder god ¶ StudeÌ„t That I haue sayd proueth nat that / for the hyghest prefermeÌ„t in presentemeÌ„tes is to haue authoritie to examine the abylitie of the person that is pÌ„sented / for if the present be able / it suffiseth to the discharge of the ordinarie / by whome so euer he be pÌ„sented that authoritie is nat denied by the law of the realme to beloÌ„ge alwaye to the spirituall iurisdiccioÌ„ / but my meanyng is that as to the right of presentementes to determine who ought to present who nat at what tyme / whaÌ„ the churche shal be iuged to be voyde whaÌ„ nat / beloÌ„geth to the kyng his lawes / for elles it were a thing in vayne for him to holde ple of aduousons or to determine the righte of patronage in his owne courtes nat to haue aucthorite to determyne the right therof / these claymes semeth nat to be agaynste the lawe of god And so me semeth in this case the presentement is gyuen the kynge ¶ Doctor And if the kynge shulde haue right to present than might the churche happen to coÌ„tinue voyde for euer for as we haue sayde before no tyme renneth to the kyng in suche presentementes ¶ Student If any suche case happen if the kynge present nat than may the ordinary set in a deputie to serue the cure as he may do whaÌ„ necligeÌ„ce is in other patrons that may present do nat / also it can nat be thoughte that the kyng whiche hath the rule gouernauÌ„ce ouer the people nat onely of theyr bodyes but also of theyr soules wyll hurte his conscience suffre a benefice continually to stande withoute a curate no more than he doth in auousons that be of his owne presentemente ☞ Whether the presentement collacioÌ„ of all benefices dignities voydynge at Rome belonge onely to the Pope The .xxxvii. Chapitre STudent In the sayde summe called Summa rosella in the title BeneficiuÌ„ primum / iÌ„ the .xiii. article It is sayde that benefices / dignities / ê‘sonages / voydynge in the courte of Rome maye nat be gyuen but by the Pope likewyse of the Popes seruauntes of other that come go fro the courte if they dye in places nye to the court within two dayes iourney all these belonge to the Pope / but if the Pope presente nat within a moneth than after the moneth they to whome it beloÌ„geth to present may present by them selfe onely or by theyr vicar generall if they be in farre parties these saynges holde nat in the lawes of the realme ¶ Doctoure what is the cause that they holde nat iÌ„ this realme as well as in all other realmes ¶ StudeÌ„t One cause is this The kyng iÌ„ this realme accordyng to the auÌ„cieÌ„t right of his crowne / of all his aduousons that be of his patronage oweth to present And in likewise other patrons of benefices of theyr presentement / the plee of the right of presentementes of benefices within this realme belonge to the kyng his crowne And these titles can nat be taken fro the kynge his subiectes but by theyr assent / so the lawe that is made therin to put away that title byndeth nat in this realme / ouer that before the statute of .xxv. of Edwarde the .iii there was a great inconuenieÌ„ce mischief by reason of diuers prouisioÌ„s reseruacioÌ„s that the Pope made to benefices in thys realme coÌ„trari to the olde right of the kyng other patrons in this realme as well to archebisshopryches / Bisshopryches / deauries / Abbes as to other dignities benefices of the church And many tymes alieÌ„s therby had benefices within the realme that vnderstode nat the englisshe tonge / so that they coulde nat counsayle ne conforte the people whan nede requyred / by that occasion great ryches was coÌ„uayed out of the realme / wherfore to auoyde suche inconueniences it was ordeyned by the sayd statute that all patroÌ„s as well spirituall as teÌ„porall shulde haue theyr presentemeÌ„tes frely / in case that collacioÌ„ or prouisioÌ„ were made by the Pope in disturbauÌ„ce of any spirituall patroÌ„ that thaÌ„ for that tyme the kiÌ„g shulde haue the pÌ„sentemeÌ„t / if it were iÌ„ disturbauÌ„ce of any lay patroÌ„ that thaÌ„ if the patroÌ„pÌ„sented nat withiÌ„ the halfe yere after suche voydaÌ„ce nor the Bisshope of the place withiÌ„ a moneth after the halfe yere that thaÌ„ the kyng shulde haue also the pÌ„sentement / that the kyng shulde haue the profites of the benefices so occupied by prouisioÌ„ except abbes priours other houses that haue colage coueÌ„t / there the colage coueÌ„t to haue the profites / bycause the statute is generall excepteth nat suche benefices as shall voyde in the courte of Rome or in suche other place as before appereth / therfore they be takeÌ„ to be withiÌ„ the prouisioÌ„ of the sayd estatute as well as the benefices that voyde withiÌ„