at Lay mens hands by the mediation of the †Diocesan whose office it was to be a meane betweene the Religious house and the Incumbent for in indifferent Where we speake of the B habite wee have safely retained the words of the Euchologue 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for that wee finde them confusedly and uncertainely rendred The latter may import Humerale the former seemeth literally to bee as much as Collare but Gretser was very angry with Iunius for translating it so in his Notes upon a fragment of Curopalate Quasi de Canibus sermo esset as if saith the Jesuite Master Young had beene talking of Dogges But see what Gretser himselfe saith to the words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in his Comment upon Codin cap. 16. To returne to our Diocesan The Right and Title to a Church and that which belongeth therunto is more peculiarly acknowledged by the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or setting up of the Crosse the performance whereof was in this manner 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Euchol 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. Word being brought to the Patriarch concerning the Church that is to bee built Letters are directed either to the Exarch or to some of the Bishops to request that the Church may be founded consecrated and entitled to the Patriarches 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 then commandement is given that a crosse of wood be provided upon which the Patriarches Secretaries must set down upon the one side The Patriarchs 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 consecrated in the name of such a Saint in such a Citie preserv'd by God in such a Province of proper will by such or such the most holy and Oâ—cumenicall Patriarch On the other side During the Reigne of such and such our most Religious Princes in such a Moneth of such a yeare Then the Crucifixe must be sent to the place where the Church is to be erected and there the Bishop by whom it is conveighed saith the forenamed Service which is used at the founding of a Church and when hee maketh the Consecration the Crosse must be set up behinde the holy Altar there being prepared for it some lofty structure fitted with a concavity to receive it either of Stone Iron or Brasse as it may be seene in the great Church By the great Church understand that of S. Sophia in Constantinople Thus the Euchologue for the Greeke Church The like to this for as much as concerneth the substance is observed in the Latine but the Ceremonies there are more tedious and elaborate The Reader that hath so much time and patience shall finde this true in their Pontisicall By the setting up of the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the right of the new Church was conveyed to the Patriarch or Bishop as by an especiall title so that now for the most part things were altogether disposed by but nothing at all without the Bishops jurisdiction And wee alwayes adde The Bishop for though the Patriarch be especially named in the Euchologue it be also a controversie betweene them concerning this Title as it is taught by Balsamon upon the 31. of the Apostles Canons yet that the Bishop if not onely yet also had this right it is evident by the Emperours Novell And concerning the conveyance of this Right by the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 see what is set downe by the Patriarch of Constantinople in the case of Iohn Bishop of Lepanto and for this see the Ius Graeco-Romanum Tom. 1. Lib. 3. Sent. Synod 1. p. 232. 233. c. Edit Francofurt Ann. 1596. See also that of Manuel de jur Patronat p. 242. And that the Patriarch or Bishop should challenge this jurisdiction over the new Church it seemeth most reasonable For what did the Lay Patron do more than a man of Israel who brought a Lambe to the doore of the Tabernacle but the Priest made it an Offering and an Attonement The Patron indeed perhaps might chuse the place but till the Prelate came and sanctified the ground it might as well be a Denne of Theeves as a house of Prayer The Patron might bring the stones but the Bishop laid the foundation or if the workeman put the materials together made up a house the B. made that a Church till then nothing was but the breathles body of a Temple the soule being yet to come from a diviner influence of the Diocesan Therfore it was that the priviledge of a new Church followed not the building but the consecration of it as the Condition is worthily observed by the devout learned K. Alured in his Lawes C. 5. which is Be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of the priviledges of Churches The King saith that if a man pursued by his enemie flie to the Temple 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nân man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 no man may take him away for the space of a seven Night 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. if he be able to live for hunger c. Other and greate immunities the King there granteth to the Church but the Law had this caution 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 This freedome we give to every such Church as shall be hallowed by the Bishop Wee have seene upon what just and valuable considerations the Diocesan might challenge a Right and Title to the New Church by foundation and erection In the pursuite hereof wee hope to set downe manifest incouragements to argue the use and exercise thereof in the endowment and filling of a Church or Monasterie Therefore if wee looke backwards we shall finde it a Custome well nigh from all Antiqutie that the goods and revenues of Churches have beene alwayes acknowledged to belong of Right to the Bishops disposing Some authoritie for this may be had out of those Canons which are called the Apostles Canon 37. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Let the B. have in his power all the goods of the Church and let him dispose of them as in the sight of God So the 40. Canon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Where also the reason is given 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 For if the pretious soules of men are committed to his care how much more ought hee to bee intrusted with the Church revenues For the authoritie of these Canons it may now be thought too late and to little purpose to speake and yet I have alwaies marvelled who that should be that durst be so bold as to fasten so many forged precepts upon the Apostles and much more that whosoever he were hee could be so fortunate in his fraud as not to be discovered rather in the next Age than in those later times which saw the former at a distance may be thought to know but a little of that which was then done True it is that some of these Canons may seeme to argue neither the Spirit nor Style of that Age in which they pretend to have beene brought forth and yet of others we
the Code THe first Booke of the Code treateth of Religion and the Rites and Ceremonies thereto belonging whereof I said there was no speciall Tractate in the Digest saving that it devideth the publick right into that which concernes the Church and Church-men and the Magistrates of the Common-wealth prosecuting the later branch thereof onely and omitting the first because out of that Heathenish Religion which was used in those ancient Lawyers dayes and those superstitious Rites whereof their Bookes were full nothing could be taken that might serve for our Religion whereupon he instituted a new discourse thereof in the Code beginning first with the blessed Trinitie one in essence and three in person wherein he sets downe a briefe summe of our Christian faith agreeable to the doctrine of the Prophets and Apostles and the foure first generall Counsels the Nicene Constantinopolitan Ephesine Calcedon forbidding any man publickly to dispute or strive thereabout taking occasion upon the Nestorian heresie which not long before had sprung up and had mightily infected the Church which Justinian by this confession of Faith so published to the whole world and a penall Edict joyned thereunto hoped to represse After hee hath set downe a full and sound confession of the Christian faith conformable to the Primitive Church next hee addeth a title of the holy Church it selfe and of her priviledges which either concerne Ecclesiasticall mens persons themselves or their state and substance or the actions one Ecclesiasticall man had against an other or with or against Lay persons where also he prosecuteth the degrees of Priests or Ministers their offices orders and how the same are to be come by that is without bribes or Simonie or other worldly respect save the worth of the person onely and the rights of holy places Priests in the Law are called from the Latine Sacerdotes either because their office was Deo saera dare to sacrifice to God or else because they were consecrated and as it were severed from the rest of the people and given up to God they were also called Elders answerable to the Greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 either for that they were so in age * In Authent de sanct Episcop § Presbyterum Collat. 9. the Law having provided that no man should be promoted to the dignitie of a Priest till hee were 35 years old or else because they ought to be such in manners and carefull carriage of themselves Amongst Priests or Ministers Bishops have the first place who are as it were the †〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Overseers and Superintendents of the rest so called of their watchfulnesse care labour and faithfulnesse in teaching the people and doing other duties which they owe unto the Church The lowest degrees of men in the Ecclesiastical Hierarchy were the Clerkes as the word Clericus is restrein'd to a narrower acception For in the generall it is most properly applyed to all degrees of the Clergie and is a terme contradistinct to the Laitie and they are called Clergie from the Greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quia de sorte Domini sunt vel quia Dominus sors est part Clericornm either because God is their portion and lot or because they are his as Papias hath observed To Bishops Priests and other of that ranke did appertain the care of Hospitals whereof some were for Orphans some for Infants some for impotent and diseased persons some for poore people some for strangers and other like miserable persons and therefore together with the title of Bishops and Clerks is joyned the title of Hospitals or Almes-houses In place next after the Bishops themselves comes their power and audience for albeit the chiefest office of a Bishop is to instruct the people in the doctrine of the Word and in good example of life yet forasmuch as all will not be obedient unto the Word neither brought by the persuasion thereof to good nurture and to be kept in order and the eminencie of the degree wherein the Bishops are placed is not sufficient to keepe the people in obedience without some power and jurisdiction and because the Church it selfe is the mother and maintainer of Justice therefore there is by the Emperour himselfe and his predecessours as many as professed Christianity certain peculiar jurisdictions Ecclesiasticall assigned to the Bishops more worthy than the Civile over persons and causes Ecclesiasticall such as touch the Soule and Conscience or doe appertein to any charitable or godly uses and over the Laitie so farre forth as either the Laitie themselves have beene content to submit themselves unto their government that is so farre as either it concernes their Soules health or the outward government of the Church in things decent or comely or that it concernes poore and miserable persons such as widowes orphans captives and such other like helplesse people are or where the Civile Magistrate cannot be come by or doth voluntarily delay judgement in all which anciently a Bishop was to performe double faith and sanctity first of an uncorrupt Judge and then of a holy Bishop But in many of these matters in these dayes the Laitie will not suffer themselves to be controll'd and therefore hath taken away most of these dealings from them yea even in charitable causes Immediately followeth a title of Hereticks Manichees Samaritans Anabaptists Apostataes abusers of the Crosse of Christ Jewes and worshippers of the hoast of heaven Pagans and of their Temples and Sacrifices whom the Bishop is not onely to confute by learning but also to suppresse by authoritie for he hath not the spirituall Sword in vaine The Hereticks Jewes and Pagans shall not have Christian men and women to be their servants that such as flie to the Church for Sanctuarie or claime the ayde thereof shall not be drawne from thence unlesse the offence be haynous and done of a pretensed and purposed malice in which case no Immunity is to be allowed them but wicked people are to be punished according to their desert agreeable to the word of God it selfe which would not have his Altar to be a refuge unto the wicked And so farre of that part of publick right which appertaineth to the Priests or Ministers and their Function which was omitted in the Digest but prosecuted in the Code Now it followeth that with like brevity I run over the three last Bookes of the Code which themselves were rather shadowed in the Digest in the title of the right of the Exchequer than in any just proportion handled SECT 3. The Argument of the 10. Booke of the Code THe first therefore of them setteth out what is the right of the Exchequer and in what things it standeth as in goods excheted because there is no heire unto them or that they are forfeited by any offence worthy death or otherwise How such as are in debt to the Exchequer and their suerties are to be sued Of the right of those things which the Exchequer sels by outcry where he that offereth most
are bound to thinke more soberly To say no more we will onely set downe that of the Arabicke Paraphrast who at the end of his translation of these Canons in stead of that which the Greek saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 these things we have delivered unto you concerning the Canons O ye Bishops saith thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is O yee Familie of the faithfull attend 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 unto our words and precepts for that they come from the holy Spirit of the living Lord our Care But however it be resolved against these Canons yet that which we have said is also set downe by the Synod at Antioch Can. 24 25. where Note saith Balsamon upon the 25. Canon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that the Administration of those things which appertaine to the Church belongeth to Ecclesiasticall men Reade also to the same purpose the 7. 8. Canons of the Councell held at Gangra 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. And 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. where a Curse is past upon all those that presume to give or receive the Church fruits otherwise than by the Bishops dispensation or theirs who by the Bishop shall be appointed thereunto And Steven Bishop of Rome in the second Centurie saith Lâ—cis quoque quamvis religiosi sint nulla tamen de Ecclesiasticis Facultatibus disponendâ— so wee reade rather than Respondendâ— legitur unquam tiâ—buta facultas that it cannot appeare that ever any power was granted to Lay-men though Religious Lay to dispose of Ecclesiasticall goods It is the Bishops observation in his second Epistle and long after him it was repeated in the Councell at Lateran under Innocent the 3. Chap. 44. In the yeare 589. it was set downe in the Toletan Councell Can. 9. that Churches cum suis Rebus should ad Episcopos pertinere And Cyrâ—â— of Alexandria in his Epistle to Domnus saith â—hat the Diocesan for the time being may 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is saith Balsamon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that he may confidently and securely be intrusted with the Church Revenues And because the Bishop had this power over the goods which were conferred upon the Church it seemeth to be a Reason why hee was somtimes present at the last Will and Testament of Benefactors in this kinde for this appeareth by the Will which Berâ—ricke made a Kentish Gentleman of Mepham related by Lambert out of the Antiquities of that place 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 on 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 into 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And I give saith the Testator the 10. hides at Streiton to the Minster at Walkenstede And the Land at Falcham after â—ythwares dayes to S. Andrewes for AElfrics Soule their Lord and his Elders so their will was c. And this is said to be done on 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 on 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. Witnesse Eadgâ—ue the Lady and Odo the Archbishop c. and AEifsie the Priest of Croyden From this Right which the Diocesan had in the dispensation of Ecclesiasticall goods it proceedeth that he was also especially concerned in the Endowment of a Church or Monasterie For a Monasterie the 17 Can. of the 7. Synod saith thus O 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 luâ— Graec. Rom. in Epit. S. Can. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. But see for the Canon â—s Balsamon and Zonaras have it and what they say Be it a Monasterie or otherwise a Church or Oratorie Balsamon saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The Founder shall be forced to bring a competencie according as the Diocesan shall approve And how much the Bishop was considered in this matter it appeareth by the 32. Canon of the 4. Councell at Toledo held under Honorius in the yeare 633. No verint tamen conditores Basilicarum in rebus quas itsdem Ecclesiis conferunt nullam se potestatem habere sed â—uxta Canonum instituta sicut Ecclesiam it a dotem ejus ad ordinationem Episcopi pertinere Where it is said that the Founder must know that he shall have nothing to doe neither with the Church nor that which he bestoweth upon it but both shall belong to the Bishops dispensation And this is also cited by Gratian in the Decree 10. q. 1. cap. Noverint In the Bracaran Councell held in the yeare 672. Can. 5. it is set downe that the Bishop may â—efuse to consecrate any Church till he be made sure of a convenable Dotation Memâ—nerit saith the Canon to the Bishop ut non prius dedicet Ecclesiam nisi anteadotem Basilica obsequium ipsius per donationem Chartula confirmatum accipiaâ— nam non levis est â—sta temeritas c. And before this as much was said in the 3. Toletan Councell of the yeare 589. Can. 19. which also was reported in 888. in a Councell holden at Mentz C. 4. Multi contra Canonum constituta sic Ecclesias quas adificaverunt postulant consecrart ut dotem quam eâ—dem Ecclesia contulerunt censeant ad Episcopi ordinationem non pertinere Quod factum in praeteritum displicet in futurum prohibetuâ— sed omnia secundum constitutionem antiquam ad Episcopi ordinationem potestatem pertineant And in the Councell at Cabilon of the yeare 658. Can. 14. whereas the complaint was Quod Oratoria pervillas â—am longo tempore constructa facultates ibidem collata ipsi quorum villae sunt Episcopis contradicant The satisfaction was Hoc convenit emendarâ— ita ut duntaxat in potestate sunt Episcopi Also the Canon Nullus Abbas c. of the Councell at Westminster related before in the matter of Parishes is much to this purpose There we cite it out of a Mâ— Bibloth Bod. which is a continuation of Marianus Scotus Wee finde it also in the Continuation to Florent Wigorn. by occasion whereof looking better into our Manuscript Marian wee finde that it agreeth for the most part with this Florence of Worcester But further to argue this dispensative Power in the Diocesan he that is willing to observe may finde severall passages both of late and elder times among the Records of Sarum a sight whereof I had by the great favour of my worthy Friend M. Edward Thorneburgh one of the Canons Resident of that Church We have seene how farre the Diocesan was concern'd in the Erection Endowment of a Church or Monasterie it remaineth that wee now consider him in that which appertaineth to the Filling For a Monasterie certaine it is that none could be admitted but by the Bishops authoritie This was determined in severall Synods we note onely the forenamed Councell held at Nice because there also the reason of this is set downe let the Reader see the 14. Canon in the Latin Translation set forth by Turrian for those that are not so satisfied we shall shortly provide the Arabick Text if we be not otherwise prevented by those that are better able
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
that all the Lawes thereof appertaine unto Your Majesties care comfort alike For which not onely the whole profession of Your Ecclesiasticall and Civile Lawyers that now are but those which shall succeed in those places for ever hereafter unto the worlds end will praise and magnifie Your Majesties gratious favour towards them and wee that now are will pray to God for the long and happie prosperitie of Your Highnesse and Your Posteritie over us during the continuance of this Heaven and this Earth and after the passing away thereof a perpetuall fruition of the new Heaven and the new Earth wherein righteousnesse onely shall dwell for ever Your Majesties most humble and dutifull Subject THOMAS RIDLEY To the Reader GEntle Reader I confesse as I meditated this Treatise upon mine owne motion as I doe somtimes matters of other argument when my leasure serves mee thereto so also I doe not set it out to the view of the world upon mine owne motion but was desirous it should have beene kept in saving that I must obey where I am bound The thing that gave mee cause to this meditation was that I saw many times how meanly men esteemed of the Civile and Ecclesiasticall Law of this Land valuing them by the practice of so much of them as we have among us And therefore I thought good although not wholly to unfold the riches of them yet to make shew of them folded up in such sort as Mercers make shew of their silkes and velvets laid up in whole peeces in their shops whereby it may bee seene what great variety they have of all these kinde of wares although the goodnesse of the ware it selfe cannot be discerned because it is foulded up Besides seeing how frequent prohibitions are in these dayes in causes of either cognisance more than have beene in former time I thought it not unworthy my labour to inquire and see upon what just grounds they are raised up in this multitude not of any humour I have to gainesay the lawfull proceedings of any Court which I reverence and most readily acknowledge their authoritie in all things belonging to their place but to know and search out the truth of those suggestions that give cause unto these prohibitions For whenas such Lawes as are written of these businesses are written indifferently as well for the one Iurisdiction as the other no man is to be offended if the one Iurisdiction finding it selfe pres sed by the partiall interpretation as it supposeth of the other inquire the ground of such interpretation and labour to redresse it if it may be by the right interpretation thereof To the end that either Iurisdiction may retaine their owne right and not the one bee overtopt by the other as it seemeth to be at this day And that in such matters as they concerne of their owne right as depend of no other authoritie but of the Prince alone which is the thing onely that is sought in this little Treatise And therefore the Reverend Iudges of this Land are to be intreated that they will vouchsafe an equall interpretation of these matters as well to the one Iurisdiction as the other for so it is comely for them to doe and if they doe it not the other are not so dull-senced but they can perceive it nor so daunted but that they can flie for succour unto him to whose high place and wisdome the deciding of these differences doth of right appertaine PENELOPE is said to have had many wooers comely in person and eloquent in speech but shee respected none but her owne ULYSSES Such should be the minde of a Iudge that whatsoever other appearance or shew of truth be offered one saying This is the true sence of the Law and an other that yet the Iudge should respect none but the very true germane and genuine sence thereof indeed Which if it were religiously or indifferently observed in every Court then needed not this complaint that now is but every Iurisdiction should peaceably hold his owne right such as the Prince Law or Custome hath afforded unto it THOMAS RIDLEY A VIEW OF THE Civile and Ecclesiasticall Law also wherein it is straightned and wherein it may be releeved PART I. CHAP. I. SECT 1. The Division of the whole booke into foure parts What right or Law is in generall What is the Law publick and what the Law private What is the Law of Nature What is the Law of Nations What is the Law Civile BEfore I shew how necessary it is for his Majestie and the Realme to maintaine the Civile Ecclesiasticall Lawes as they are now practised among us in this Realm I will set downe as it were in a briefe what the Civile and the Ecclesiasticall Lawes are then will I shew how farre forth they are here in use and practise among us thirdly wherein wee are abridged and put beside the use and possession thereof by the Common Law even contrary to the old practise thereof and the true sence and meaning of the Lawes of this Realme and the Statutes in this behalfe provided and lastly wherein we might be releeved and admitted to the practise of many things in the Civile Law without prejudice to the Common Law and so both the Lawes might know their owne grounds and proper subjects and not one to be jumbled with the other as it is at this day to the great vexation of the Subject But before I speake of the Civile Law in particular I will define what Right or What Law is Law is in generall Law therefore is as Vlpian saith L. 10. in fin ff de Justicia Jure the knowledge of Civile and humane things the understanding of those things which are just and unjust This Law is primarily divided into the Law publick and the Law private The 1. Jus publicum publick is that which appertaineth to the generall state of the common-wealth for I meane the Law publick not in respect of the Forme that they were publickly made as we make lawes in our Parliaments for so all the Civile Law is publick as made by publick authority but in respect of the object or end thereof for that they concerne the Church the Clergie the Magistrate and other like publick functions none of which levell at the rule of equity or equality between man and man as private lawes doe but ayme at that which is most fit ingenerall for the common State 2. Jus privatum The private Law or the private mens Law is that which concernes every singular mans state which for that it is occupied in giving every man his owne it must of necessitie be proportionable to the rule of Equitie and Justice Private Law is of three sorts the law of Nature the law of Nations and the law Civile The law of Nature is that which Nature hath taught every living creature as the care and defence of every The Law of Nature creatures life desire of libertie the conjunction of male
Levell and Line The Canon Law consisteth partly of certaine Rules taken out of the holy Scripture partly of the Writings of the ancient Fathers of the Church partly of the ordinances of generall provinciall Councels partly of the Decrees of Popes of former ages Of the Canon Law there are two principall parts the Decrees the Decretals The Decrees are Ecclesiasticall constitutions made by the Pope and Cardinals at no mans suit are either Rules taken out of the Scripture or Sentences out What is the antiquity of Decrees and who were the Authors that compiled them of the ancient Fathers or Decrees of Councels The Decrees were first gathered together by Ivo B. of Carnat who lived in the time of Vrban the 2. about the yeare of our Lord God 1114. but afterward polished perfected by Gratian a Monk of the Order of S. Bennet in the yeare * Trithem in his second Booke De viris illust saith that Gratian wrote this Worke at Bononia in the Monasterie of S. Felix Anno 1127. Others say it was done in the yeare 1151. Bellarmine to reconcile the difference saith that Gratian might begin the work according to the first account and finish it according to the second 1149. and allowed by Eugenius the Pope whose Confessor hee was to bee read in Schooles and to be alledged for Law Of all the severall Volumes of the Canon Law the Decrees are the ancientest as having their beginning from the time of Constantine the great the first Christian Emperour of Rome who first gave leave to the Christians freely to assemble themselves together and to make wholsome lawes for the well government of the Church The Decrees are divided into three parts wherof the first teacheth of the origen and beginning of the Canon Law and describeth and setteth out the rights dignities degrees of Ecclesiasticall persons and the manner of their elections ordinations and offices and standeth of one hundred and one distinctions The second part setteth out the causes questions and answers of this Law which are in number 36. and are full of great varietie wisdome and delight The third and last part conteineth matter of consecration of all sacred things as of Churches bread and wine in the Sacrament what dayes and Feasts the Primitive Church used for the receiving thereof of the ministring of the Sacraments in Baptisme and the use of imposition of hands all which is set out under five distinctions SECT 2. What the Decretals are and how many parts they comprehend THe Decretals are Canonicall Epistles written either by the Pope alone or by the Pope and Cardinals at the instance or suit of some one or more for the ordering and determining of some matter in controversie and have the authoritie of a law in themselves Of the Decretals there be three Volumes according to the number of the Authors which did devise and publish them The first Volume of the Decretals was gathered together by Raymundus Barcinius Chaplain to Gregory the ninth at his the said Gregories commandement about the yeare 1231. and published by him to be read in Schooles and used for Law in all Ecclesiasticall Courts The second is the worke of Boniface the eight methoded by him about the yeare 1298. by which as hee added somthing to the ordinance of his Predecessours so he tooke away many things that were superfluous and contrarie to themselves and reteined the rest The third Volume of the Decretals are called the Clementines because they were made by Pope Clement the fifth of that name published by him in the Councell of Vienna about the yeare of grace 1308. To these may be added the Extravagants of John the xxij some other Bishops of Rome whose authors are not known and are as Novell constitutious unto the rest SECT 3. What is contained in the first Booke of the Decretals EVery of the former Volumes of the Decretals are divided into five Bookes and containe in a manner one and the same titles whereof the first in every of them is the title of the blessed Trinitie and of the Catholick faith wherein is set downe by every of them a particular beliefe divers in words but all one in substance with the ancient Symbols or beliefe of the old Orthodoxe or Catholick Church Secondly there commeth in place the treatie of Rescripts Constitutious Customes the authority of them when they are to be taken for Law after followeth the means wherby the greater Governours of the Church as namely Archbishops Bishops such like come unto their roome which was in two sorts according as the parties place or degree was whē he was called unto the roome as if he were under the degree of of a Bishop was called to be a Bishop or being a Bishop was called to be an Archbishop or to be the Pope himselfe hee was thereto to be elected by the Deane and Chapter of the Church where hee was to be Bishop or by the Colledge of the Cardinals in the Popedome but if hee were already a Bishop or an Archbishop were to be preferred unto any other Bishoprick or Archbishoprick then was he to be required by the Church he was desired unto and not elected which in the Law was called Postulation after Postulation followed translation by the superiour to the See to which hee was postulated or required after Election followed Confirmation Consecration of him that was elected which both were to be done in a time limited by the Canōs otherwise the party elected lost his right therin Bishops and other beneficed men sundry times upon sundry occasions resigne their benefices and therefore is set downe what a renunciation or resignation is who is to renounce and into whose hands and upon what causes a man may renounce his benefice or Bishoprick and because under-Ministers are oftentimes negligent in their Cure that the people in the meane time may not be defrauded of Divine Service the Sacraments the food of the word of God it is provided that the Bishop shall supply the negligence of such Ministers as are underneath him in his Jurisdiction besides because holy orders are not to be given but by imposition of hands with prayer and fasting * The old Romans instituted three yearely Solemnities in honour of their Gods for the Fruites of the Earth These also the Romish Church observed having first moderated their superstition and directed them to a more sacred end To the three one of their Popes as they say added the fourth with a respect had to those of the Jewes in Zech. 8. 19 and so they were called Iejunia quaiuor temporum Their institution at the first had many other causes for which see the Sermons of Leo and Durants Rationale but in after times at these Solemnities especiall regard was had to the Ordination of Priests and Deacons which had beene formerly performed onely once a yeare in the Moneth of December as Amalarim hath observed It seemeth therefore
there is any right use within the Church Some other are out of use as well among the Civile as Criminall titles because the matter that is therein treated of is knowne notoriously to belong to the conusance of the Common Law at this day as the Titles of Buying and Selling of Leasing Letting and taking to Farme of Morgaging and Pledging of Giving by deed of gift of Detecting of Collusion and Cosenage of Murder of Theft and receiving of Theeves and such like SECT 2. That the Titles lastly mentioned did anciently belong unto the Court Spirituall and the reasons which moved the Author so to beleeve The first Reason ANd yet I doubt not but even these matters as well Civile as Criminall or most of them were anciently in practise and allowed in Bishops Courts in this Land among Clerks to the which I am induced by three Reasons First that I finde not onely the forrein Authours of the Decretals but also the domesticall Authours of the Legatines being all most excellent wise men as the Stories of their severall ages do report to have enacted these severall constitutions and to have inserted them not onely in the body of the Canon Law but also in the body of the Ecclesiasticall Lawes of this Land and that some wise men sundry yeares after their ages doe write and comment upon the same as things expedient and profitable for the use of the Church and the government of the Clergie in those dayes neither of which I doe presume they would have done if in those ages there had not beene good use and free practice of them SECT 3. The second Reason SEcondly that I finde in the Code of Justinian by sundry Lawes some of his owne making some others of other Emperours before his time even from the daies of Constantine the great Bishops in their Episcopall audience had the practice of these matters as well Criminall as Civile and to that end had they their Officials or Chancellours whom the Law calleth Ecclesiecdici or Episcoporum Ecditi that is Church-Lawyers or Bishops-Lawyers men trained up in the Civile and Canon Law of those ages to direct them in matters of Judgement as well in Ecclesiasticall Criminalâ— matters as Ecclesiasticall Civile matters And that these which now are Bishops Chancellours are the very selfe same persons in Office that anciently exercised Ecclesiasticall Jurisdiction under Bishops and were called Ecclesiecdici it may appeare by that which Papias an old ancient Historiographer cited by Gothofred in his Annotations upon the foresaid Law Omnem in the Code title de Episcopis and Clericis and upon the § Praeterea writeth of them who saith thus That Ecclesiecdici or Ecdici were those that were aiders assisters to the Bishops in their Jurisdictions not astrict or bound to one place but every where through the whole Diocesse supplying the absence of the Bishop which is the very right description of the Bishops Chancellours that now are who for that they carry the Bishops authority with them every where for matters of Jurisdiction and that the B. and they make but one Consistory are called the Bishops Vicars generall both in respect their authority stretcheth it selfe throughout the whole Diocesse and also to distinguish them from the Commissaries of Bishops whose authority is onely in some certaine place of the Diocesse and some certaine causes of the Jurisdiction limited unto them by the Bishops and therefore are called by the Law Judices or Officiales foranei as if you would say Officiales astricti cuidam foro dioeceseos tantùm Gloss in Clement 2. de Rescrip So that it is a very meere conceit that a certaine Gentleman very learned and eloquent of late hath written That Chancellours are men but of late upstart in the world and that the sloth of Bishops hath brought in Chancellours wheras in very deed Chancellours are equall or neer equall in time to Bishops themselves as both the Law it selfe and Baldus l. aliquando ff de officio Proconsulis Couar li. 3. variarum resolut c. 10. num 4. Shrozius lib. 1. de vicario Epis q. 46. num 2. 4. 12. 13. Stories doe shew yea Chancellours are so necessary Officers to Bishops that every Bishop must of necessitie have a Chancellour and if any Bishop would seeme to be so compleat within himselfe as that he needed not a Chancellour yet may the Archbishop of the Province wherin he is compell him to take a Chancellour or if he refuse so to doe put a Chancellour on him for that the Law doth presume it is a matter of more weight than one man is able to sustain to governe a whole Diocesse by himselfe alone and therefore howsoever the nomination of the Chancellour bee in the Bishop yet his authoritie comes from the Law and therefore Hostiensis in sumusa de officio Vicarii numero 2. in fine nominationem ab Episc potestatem verò à â—ure recipiunt he is no lesse accounted an Ordinarie by the Law than the Bishop is But truth it is not the sloth of the Bishops but the multitude and varietie of Ecclesiasticall causes brought them in which could not bee defined by like former precedents but needed every one almost a new decision And the reasons why Princes in the beginning granted to Clergie men these causes their Consistories for from Princes were derived in the beginning all these authorities as also the Religion it self is setled protected in kingdoms by Princes before there can be had a free passage thereof were First that the Clergy-men therby might not be drawn from their prayer and exercise of divine service to follow matters of suits abroad 2ly that they were like to have a more speedy better dispatch more indifferency before a Judge of their owne learning than before a Judge of an other profession for this is true and ever hath beene and I feare ever will be unto the end that is said in the Glosse and is in common saw Laici oppidò semper infesti sunt Clericis Lastly That Clerks suits and quarrels should not be divulged and spread abroad among the Lay people and that many times to the great discredit of the whole profession specially in criminall matters wherein Princes anciently so much tendered the Clergie that if any man among them had committed any thing worthy death or open shame he was not first executed or put to his publick disgrace before he was degraded by the Bishop and his Clergie and so was executed and put to shame not as a Clerk but as a Lay malefactor which regard towards Ecclesiasticall men it were well it were still reteined both because the consideration thereof is reverent and worthy the dignity of the Ministerie whose office is most honourable and also for that it is more ancient than any Papisticall immunitie is SECT 4. The third and last Reason THe third reason that moves moe that I should beleeue that these Titles sometimes were here in exercise among
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
into England to reëstablish the Faith decayed by the Saxons who set downe sundry ordinances for the Church framed it in uniformity of Prayer and government to that which then was used in the Church of Rome but long before Aug. time as it may by our Stories appeare even in the dayes of King Lucius who sent to Elutherius a Bishop of Rome for Ethelward lib. unico learned men to instruct him and his people in the Faith which was about a hundred and forty yeares after the Ascention of our Lord Jesus Christ the Faith of Christ was here preached in Britaine and fifteene Archbishops are by our Stories reported one to have succeeded Iocelin of Furnes in his Booke of Brittish Bishops Marianus Scotus an other in the See of London before the irruption of the Saxons into this Land All which time it is not like the Churches of God that were in the Land were void of this provision for the Ministerie so that I assure my selfe the payment of Tythes was farre more ancient than the time of Augustine albeit the Conquerour citeth there the authoritie of Austin rather than any former precedent of the Britons both for that the doctrine of Austin was better knowne unto the Saxons among whose Ancestours Austin taught governed as an Archbishop than any of the Fathers of the Brittish Church to whom the Saxons were enemies and their tongue altogether unknowne unto them and beside for that this doctrine of Austin concerning Tythes best suited with the generall custome that was then used thoroughout all Europe in paying thereof The next Prince after William the Conquerour that ordered any thing about payment of Tythes for ought that I have read to the contrary was Ed. 1. who at the petition of the Clergie established the Articles of the Clergie which his Sonne Edw. 2. confirmed by his Letters Patents under his great Seale by consent of Parliament at the petition of the Clergie in the IX yeare of his Reigne In Edward the thirds time Writs of Scire facias were granted An. 18. Ed. 3. cap. 14. out of the Chancerie to warne Prelates and other Clerks to answer for Dismes there but after the matter was well understood by the King the parties were dismissed from the Secular Judges for such manner of pleas saving to the King his right and such as his Ancestours had and were wont to have of Reason During the Reigne of Richard the second Parsons of holy Church An 1. Rich 2. cap. 14. were drawne into secular Courts for their owne Tythes by the name of goods taken away And it was decreed by the King that in such case the generall averment of the plaintife should not be taken without shewing specially how the same was his Lay-cattell By the Statute of the first of the same King cap. 14. it is acknowledged that the pursuing for Tythes of right doth and of old times was wont to pertaine to the Spirituall Court and that the Judges of 15. Ed. 3. holy Church onely have the cognisance in these matters By the Statute of the 15. of Edw. the third it is ordered That Ministers of holy Church neither for money taken for the redemption of corporall penance nor for proofe and account of Testaments nor for travell taken about the same nor for solemnitie of Marriage nor for any other thing touching the Jurisdiction of holy Church should be appeached or arrested or driven to answer the Kings Justices or other Ministers and thereupon they should have writs in 2. Henr. 4. the Chancerie to the Justices when they demanded them In the second yeare of Henry the fourth the Religious of the order of the Cystercians that had purchased Buls from the Pope to be discharged of the payment of Tythes were by act of Parliament reduced 5. H. 4 C. 11. to that state that they were in before In the 5. yeare of the same King it was ordered That all Farmers and Occupiers of any lands or possessions belonging to any Fryers Aliens should pay all manner of Tythes due to Parsons and Vicars of holy Church in whose Parishes the same were as the Law of holy Church required notwithstanding the same were seised into the Kings hand or any Prohibition were made or to be made to the contrary About the 7. yeare of the same King such religious persons as had purchased Buls from the Pope in the dayes of Richard the second to bee discharged of Dismes pertaining to Parish Churches Prebends Hospitals or Vicarages not put in execution were forbid from that time forward to put them in execution or to purchase any other in time to come After King Henry the eigth had dissolved the Monasteries and other like religious houses and sold the Churches and Tythes thereto belonging to Lay men who before that time were not capable of the same insomuch as after the dissolution when the Purchasers demanded the same they were denied to hold plea thereof by reason 27. Hen. 8. cap. 20. of their incapacitie a Statute was made in the 27. yeare of the same King whereby all Subjects of the Kings Dominions were to pay their Tythes and other dueties of holy Church according to the Ecclesiasticall Lawes and ordinances of the Church of England and after the laudable uses and customes of the Parishes places where they dwelt or occupied lands and the same to bee sued for before the Ordinarie or some other competent Judge of the place according to the course and processe of the Kings Ecclesiasticall Courts of England which Statute because it tooke little effect by reason of the obstinacie of the people in not yeelding these duties to the Laitie who had purchased them and that the said Purchasers could neither by the order or course of the Ecclesiasticall Lawes sue for them in any Ecclesiasticall Court of this Land neither was there found any remedy in the Common Law of this Land whereby they might be releeved against them that wrongfully detained the same Therefore in the 32. following an other Statute was made wherein it was 32. Hen. 8. c. 7. enacted that all singular persons of this Realme and other of the Kings Dominions of what state degree or condition soever they were should fully truely and effectually divide set out yeeld and pay all and singular their Tythes and Offerings to the owners proprietaties and possessors of Parsonages Vicarages and other Ecclesiasticall places according to the lawfull customes and usages of the Parish and places where such Tythes or other duties rise and grow due And in case where any are wronged and greeved being either an Ecclesiasticall or Lay person for the wrongfull deteining or with-holding of the said Tythes or Offerings or any part or parcell thereof the same to have full power and authoritie to convent the same person or persons so deteining the same before the Ordinarie or other competent Judge of the place where such wrong was done and the same Ordinarie
Christ or an Apostle all Stories would be Legends almost every discourse too strange to be true But it seemeth very convenient for the satisfaction of reasonable Creatures that these things should be so for if God did not somtimes interrupt the common course wee should dote upon the ordinarie meanes and begin to think that Nature had no supreamer cause than it selfe If the Storie of this vision should not be true wee will not say in every circumstance for wee have promised to doubt of the damnation of Charles yet I say if some thing like to this hath not been then what shall be thought of all those ancient testimonies of grave and learned men who are engaged to make this good To let passe the rest what shall we thinke of the Relation of Fauchet that a Chronologer should say Que de son temps plusi urs gens l'asseuroyent comme a yans esté presens a la visitation de ladite sepulture les Evesques des Provinces de Rheimes Rouen assemblez en un parlement tenu l'an huit 〈…〉 ns cinquante huit l'alleguerent pour exemple a Louyis ' Roy de Germanie comme histoire veritable adjoustans que Charles estoit damné That wee may know what Fauchet saith wee must observe that in the yeare 858. the Bishops that then were of Rhemes and Roan were summoned to a Councell by Lewis the third but fearing for good causes what the successe might bee they appeared not neverthelesse they wrote an Epistle to the Emperour where amongst other matters advising him to vindicate the Church they peremptorily alledged the damnation of Martel and that when he was look't for in his grave by Boniface and Fulrade he could not be found but that in stead of him there issued forth a fearfull Dragon leaving the place all black as if it had beene burn'd And that the Emperor might make no doubt they enforce the credite of the Storie with this undeniable testimonie Nos autem illos vâ—dâ—mus nempe Bonifacium Fulradum qui ad nostram usque atatem duraverunt nobis viva voce veraciter sunt testati qua audierunt viderunt The entire Epistle is extant and the preservation of it we owe to the learned Baronius in whose Annals wee may finde it Ad annum Christi 858. So much of it as concern'd the Storie of Martel was cited by Gratian 16. q. 1. post Can. 59. It is also related by Martanus Scotus ad annum Christi 764. but not to bee look't for in the printed Copies for we reade it in a manuscript of our publick Librarie which hath much more of Marian to shew than ever yet came forth for it exceedeth those that are printed by a third part and which is more to be noted by us it is constantly interposed with the Synchronismes of our owne Storie Yet it would be enquired whether Marian bee Authour of all that hee is there entituled to because at the yeare 1054. pag. 351. the manuscript saith thus Eodem anno natus est Marianus Hibernensis probabilie Scottus caâ—us studio laborchee Chronicon pracellens est de diversis libris câ—adunatum The French Historians for the most part disparage this vision for feare of Martels damnation yet Nichol Gilles in Belleforest relating the Storie concludeth it with a sober demurre Maâ—s cequ'il en est je ne scay riâ—n cest a Dien ale sâ—avoir But saith hee what to thinke of this I cannot tell God he knoweth But of Charles Martel thus farre this onely may briefly and confidently bee added That as he came improperly into the world so he went unusually out for he was borne a Bastard and died miserably notwithstanding came neere five hundred yeares after for this fact of Martellus was done about the sixe hundreth and threescore yeare after the Nativitie of our Saviour Jesus Christ but the Councell that reformed it and was holden uuder Alexander the third was not celebrated before the yeare of the Incarnation 1189. neither was the reformation thereof at that time totall nor suitable to the first institution of Tythe among Christians For neither could many wilfull and refractarious persons bee then brought to obey the Canons of the Councell in restoring any part thereof againe unto the Church although they were charged so to do under paine of * Irreligious people have alwayes beene so backward to do the Church this great right that they have oftentimes bin overtaken with the Curses both of God and Men. Severall anathemae's out of severall Synods might be urged but the most notable proceeding against this Sacriledge may be found in the Generall sentence of Execration denounced foure times every yeare Somthing to this purpose was said before Chap. 2. Sect. 1. out of an ancient Booke which I have where those Church-robbers are branded with the More and the Lasse Curs It remaineth that in this place wee declare that matter more fully out of the old English Festiuall and out of the Articles of the Generall greater Curse found in S. Pauls Church at Canterbury in the yeare 1562. according as it is related by Thomas Becon in the Reliques of Rome And first wee will observe what our Ancestours understood by these kindes of Execrations and what was their More Lesse Curse The Festivall saith that Cursing is such a vengeance-taking that it departeth a man from the blisse of Heaven from housel shrift all the Sacraments of holy Church and betaketh him to the Devill and to the paines of Hell without end The Canterbury Booke saith thus Wherefore yee Shullen vnderstand at the beginning that this word Curse is thus much to say as departing from God and all good works Of two manner of Cursing holy Church telleth the one is cleped the Lasse Curse the other is cleped the More Curse That wee clepen the lasse Curse is of this strength that every man woman that falleth therein it departeth him froe all the Sacramentes that bene in holy Church that they may none of hem receaue til they bee assoyled c. The More Curse is much worse and is of this strength for to depart a man froe God and froe all holy Church and also froe the company of all Christen folke never to be saved by the passion of Christ ne to be holpen by the Sacramentes that bene done in holy Church ne to haue part with any Christen man c. Concerning those that debarre the Church of any rights or dues whatsoever the Priest in the Festivall pronounceth thus By the authority of God the Sonne and the Holy Ghost and his glorious Mother and mayden our Lady Saint Mary and the blessed Apostles Peter and Paul and al Apostles Martyrs Confessours and Virgins and the halowes of God I denounce and shew for accursed al thoe that franches of holy Church breake or distrouble or bene against the State of holy Church or thereto assent with deed or councell And alsoe all thoe that priue holy
Church of any right or make of holy Church any Layfee that is halowed or sanctified And all thoe that withold the rites of holy Church that is for to say offerings tythes rents or freedomes of holy Church let or distrouble or breake that is to say if any man flee to the Church or Church-yard who so him outdraweth and all thoe that therto procure or assent And all thoe that purchasen letters of any Lordys Court that processe of right may not bee determined or ended And the Canterbury booke saith All thoe ben accursed that purchasen writtes or letters of any leud Court or to let the processe of the Law of holy Church of causes that longen skilfully vnto Christen Court the which shuld not bee demed by none other Law c. And all that malycyously biriveâ— holy Church of her ryght or maken holy Church Lay-fee that is halowed blessed And also all thoe that for malice or wrathe of Person Vicare or Preiste or of any other or for wrongfull covetyse of himselfe with-holden rightfull Tythes and Offerings rents or mortuaryes from her owne parish Church and by way of coveryse fallelyche againe taking to God the worse and to hem selfe the better or else turne hem into another vse than hem dweth or done hem in other place after the rowne will so that they he not done to the same place that they should bee or let by word or by deede any man or woman for to doe her good will and her devotion to God and to holy Church For all christen men and women bene harde bound vpon paine of deadly sinne not oneliche by the ordinance of man but both in the old Law and also in the new Law for to pay truitche to God and holy Church the tythe part of all manner of increase that they winnen truliche by the grace of God both with her travell and also with her craftes whatsoe they be truliche gotten Alsoe the tythe part of all manner fishes and foules and beasts both wilde and tame And all manner of frutes that growen out of the earth Alsoe all that wittingly or wilfully tythen falsly that is to say that geven not to God and holy Church the tenth part of every wynning leefully woâ—nen in merchandise or in any other craftes withdrawen only that expence and the costage that needfully must be made about the thing whereof the winning is getten not tything the winning of one marchandise with the losse of another And all thoe that of the fruites of the earth or of beast or of any thing that neweth in the yeare geven not the tythe wholy withouten any costage All thoe that falsly tythen taken to God the worse and holden the better to her owne profite against the ordinaunce of Boniface sometyme the Archbyshope of Cantorbury by the which ordinaunce throughout the Province of Cantorbury shuld be one manner axing of tythes in this manner wise Of all manner of frutes of earbis of gardens withouten any manner of cost abating of hey where ever it groweth in greate medes or in smale as oft as it neweth of neweing of all manner of besteal of calfe or of lambe fro seaven vpward into the tenth and fro syx downeward for everyche of hem an halfe penny but if the Person or Vicarye will abide till another yeare and tell thilke that leeven and take the other beast that followeth of woole that is woxen of fellis fro purification of our Lady of milke all the while that it dureth as well in Winter as in Sommer but if they will doe gree therefore to the Person or to the Vicary for the profite of holy Church Of fishing of 〈…〉 eing of veneson oâ— beene of all other good rightfully wonnen that newen by the yeare of profite of mills and weris of fishing noe cost abate but to the very value shall the tythe be payd of lesewys communys severelis shall the tythe trulyche bee payd after the number of the beeseis or the dayes as it is most profite to holy Church all werkemen and chapmen that wynnen on her craftes and on her marchandise shulen trulyche pay her lythe to God and to holy Church Alsoe Carpenters and Smithes and Weeveris and all other crafty men and all other hired men and wimen shulen Tythen of all they getten but if they wulle giue any certayne thereof to holy Church at the Persons or Vicaryes will Alsoe of fowles of Calues of Piggs of Gees of Hennes of flaâ—e of Hempe of Corne and of all thing that neweth by the yeare Alsoe of shryding of Trees and of all manner of vnderwood woring or hewed Alsoe men of holy Church moune curse by name hem that wolen not pay her Tythes as it is written in many places of the law of holy Church At the repeating of these Articles the Prelate standeth in the Pulpit in his Albe the Crosse being lifted up and the candles lighted After the Repetition these or the like formall words of Execration are denounced Ex Authoritate Dei Patris Omnipotentis beatâ— Mariae Virginis omnâ—â—m Sanctorum excommunicamus and thematizamus Diabolo commendamus omnes supradictus malefactores Excommunicati sunt anathematizati Diabolo commendati Maledicts sunt in villis in campis in vus in semitis in domibus extradomes iâ—omnibasâ—atâ—is locu stando jacendo surgendo ambulando currendo vigilando dormiendo comedendo bibendo aliud opus faciendo Or as the Canterbury Booke saith But thorow authoritie of our Lord God Almightye and our Lady S. Mary and all Saints of Heuen of all Angels or Archangers Patriarchs and Prophets Euangelists Apostles Martyrs Confessors and Virgines alsoe by the power of all holy Church that our Lord Iesus Christ gaue to S. Peter we denounce all thoe accursed that wee haue thus receiued to you and all thoe that maintaine hem in her sins or geuen hem hereto either helpe or councell soe that they bee departed from God and all holy Church and that they haue noe of the passion of our Lord Iesu Christ ne of noe Sacramentes that bene in holy Church he noe part of the prayers among christen folke but that they be accursed of God and of holy Church fro the soole of their foote vnto the crowne of her head sleaping and waking sitting and standing and in all her words and in all her workes and but if they haue grace of God for to amend hem here in this life for to dwell in the paine of hell for euer withouten end Fiat Fiat Doe to the boke Quench the Candle Ring the Bell Amen Amen This Generall Sentence was solemnly thundered out once in every Quarter that is as my old Booke saith the fyrst Sonday of Advent at comyng of our Lord Ihesu Cryst the fyrst Sonday of Leenten The Sondaye in the Feste of the Trynyte and the Sonday within the vtus octavesweesay of the blessyd Vyrgyn our Lady S. Mary damnation Neither did all such as did then
tend to the discredit or disadvantage of most necessarie Prayer equall to the dignitie of Preaching which God hath ordained to bee the onely meanes to come to Salvation by For Faith comes by hearing and hearing by the word of God and without Faith it is impossible to be saved for Faith is a gift that purifies the heart and makes a mans prayers acceptable to God and therefore neither of them ought so to take place as that the one should shoulder out the other but they ought so to goe hand in hand together as that one should helpe assist and countenance the other SECT 4. Whether Appropriations came first frō Princes or Popes it is questionable BUt how these annexations of Benefices first came into the Church whether by the Princes authoritie or the Popes licence it is very disputable and there are reasons on both sides for to shew the same For whereas there are reported by Ingulphus Abbot of Crowland before mentioned to have beene eight Churches beside the Patronage of some other annexed and appropriated to the said Abbey by sundry Saxon Kings it doth not appeare by ought I can finde whether they were done by the soveraign authoritie of the Kings alone to the imitation of that that was done by Martellus who made all Christian Kings to sinne in this point or that it was done by any other Ecclesiasticall authoritie for that there is nothing extant for the allowance thereof save the severall Charters of those ancient Kings only that I should bee the rather induced to beleeve that it was done by those Kings authoritie only I am thereto persuaded for that I finde William the Conqueror immediatly upon the great victory that hee got over this Kingdome to have appropriated three Parish Churches to the Abbey of Battaile which hee built in memory of his Conquest And whereas William his sonne had depopulated and overthrowne sundry Churches in the new Forrest Henry his brother by his Letters Patents gave the Tythe therof to the Cathedrall Church of Sarum annexed thereto twenty other Churches in one day if the copie of that record that I have seene as concerning these appropriations be true yea the matter was gone so farre in those daies that even Noble persons and other meaner men would command Corodies and pensions to their Anno 1. Edw. 3. c. 10. Chaplaines other servants out of Churches and this could not be redressed untill such time as there was made a Statute to reforme it On the contrary side that I should take it to be a devise of the Pope I am moved thereto for that I finde every of these orders of Religious men were confirmed by one Pope or other as they confirmed them so it is like they made provision for them that most especially this way that chiefly after the Laws of Amortisation were devised Linwood c. licet bona memoria Gloss in verb. asserunt non logari de locato conducto put in ure by Princes thereupon it is that we find sundry sorts of annexation made by Popes Bishops under them every one in their Diocesse as some were made so far as concerned the Patronage only then had the Monks therein presentatiō only some other were made pleno jure then might the Monkes both institute destitute therein without the Bishop and turne all the profit thereof to their own use reserving onely a portion to him that should serve the Cure there some other Churches did they grant simply to them without any addition of full right or otherwise then if the Church were of their owne foundation they might chuse the Incumbent being once dead whether they would put any other therein unles †By occasion of that which the Authour here saith and that which hee hath hereafter said concerning the Patrons pension from the Bishop Chap. 5. Sect. 1. of this 3. Part. It shall be here enquired what Right and Title the Diocesan had to a new Church or Monasterie and how it stood in comparison of the Patron and because this Right seemeth originally to discover it selfe in the Founding Erecting and Endowment of a Church or Monasterie by all or either of which the Law saith a Patron may be made the Bishops consent alwaies presupposed as hereafter shall appeare therefore in the first place it must be considered how farre forth the Bishop was concern'd in these that it may the better be understood how truly hee was qualified to the Right of Presentation For that which concernes Foundation and Erection All that the Patron had free to himselfe in the first place was but his Thought he might thinke where he would designe the Ground or How he might Build the Church and if he entertained his owne Motion hee might make it his purpose But this was nothing without Execution and to this the Diocesan was to bee required as the most principall and most effectuall Agent therefore it is said in the 4. Canon of the Councell of Chalcedow that no man shall erect 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Monasterie or a Church without the Bishops consent And Lambertine saith that this was so necessarie that if a Church were set up in the Patrons ground without his consent the Patron could not pull it downe without the Bishops consent yet if the Patron built a Church upon his owne ground without the Bishops consent the Bishop might pull it downe without the Patrons consent and yet in this case the Patron might not doe it without the Bishops consent c. But to see further For the Greeke Church their Euchologue saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. That the Materials being provided for the foundation of the Church that shall be erected the Bishop commeth thither in person c. and having put on his Formalities the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he saith certaine Prayers 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. This done 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 〈◊〉 the Bishop fumeth the Ground worke with his incense circularwise then the Singing men say the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a kinde of Collect for the Saint to whose name the Church is dedicated and some other Services as the Chaunter shall appoint That which followeth in the Euchologue concerning the Corner-stone which the Bishop crosseth and layeth for the Foundation hath beene formerly observed by occasion of the Emperours Novell to this purpose perhaps the same Church had people belonging unto it for then must they of necessity still maintaine a Curate there of this sort were their Granges Priories those which at this day we call Donatives but if it were of another mans foundation then was it otherwise To this also I adde that the Pope every where in his Decretals arrogateth this right unto himselfe as a Prerogative of the Apostolike See to grant these priviledges to Religious orders to take and receive Benefices
themselves which being once appropriated to God could be only his but to the dispensation of them according to which it was necessarie that the Bishop should dispose of the presentation and fill the places with such Inbumbents as might enjoy them in Gods Right and execute their function answerably to the Founders good purpose This Act of the Bishops being as by them it was accounted more a matter of Care than Power was usually understood by the moderate expressions of Nominare Prâ—sent 〈…〉 e or Commendare still saving the Right to God and to themselves only such a conscientious disposition thereof as might redound to his greater glorie This power the Bishops transferred to the Lay Patron yet so as it should be necessarie for the Patron to have recourse to the Bishop that hee might qualifie his Clerke for the Rectorie by ordination and that it should be lawfull for the Bishop to devest the Patron of this Right according as hee should be moved by such causes as were found to be of a considerable importance so it seemeth by the Law where the Patrons Right is said to be such a power in qua eos Ecclesia huc usque susti 〈…〉 t. De jur Patron C. Quoniam The reason that moved the Diocesan to let the Patron share with him in this prerogative was for the Patrons encouragement for so it must be conceived of this right that it was an honorable priviledge therfore the Abbot in his definition did well to call it jus honorificum This reason in respect of the Patron tooke place because of the great need which then was of those which were able and would be willing to erect or endow a Church for as much as all places at their beginnings were ever unfurnisht for we shall finde in some that they had no Churches at all but instead of a Church they were content to say prayers under a Crosse in the open field this is reported of our own Ancestors in the Peregrination of Wilibald Sic mos est Saxonica gentis 〈…〉 d in 〈…〉 ullis nobilium bonorúmque hominuÌ„ pradâ—â—s non Ecclesiam sed sanct a Crucis signum Dowino dicatum cum magno honore almum in alto erectum ad commodam diurna orationis sedulit atem solent havere Hodâ—peric Hierosolym Wilibald Ext at ad Canisium Tom. 4. Antiq. Lect. part 2 pag. 486 Edit Ingolst 1603. In other places there might perhaps be Churches but sometimes they were no better than those which are spoken of by Asser B of Shireburne in the life of K. Alured Churches of so poore and meane a structure that when the Candles were set before the Reliques they were oftentimes blowne out by the wind which got in not only per ostia Ecclesiarum but also per frequente parietum rimulas as the Author there hath said in somuch that the ingenious Prince was put to the practise of his dexteritie and by occasion of this Lanternam ex lignis bo vinis cornobus pulcherime construere imperavit by an apt composure of thâ—â— hornes in wood hee taught us the mysterie of making a Lantherne made the one by Richard the second the other by his successor These exigencies were the causes which mov'd the Bishops to give all encouragement to the Patron and admit him into the honorable imploymnet of Filling the Churches but so as upon occasion given he might resume this right to himselfe which upon the the abuse thereof hath accordingly followed That the Laitie could never yet abide the Clergie is noted in the Law for an old saying De immunit Eccl. C. Clericis lib 6. and Basil the Emperour in the 8. Synod could say of the Lay people of his time Adeo multos malitia in insaniam accendit c. ut quòd pedes sint minimè cogitantes legem ponere velint oculiâ— that malignitie had so set on fire the madnesse of some that forgetting themselves to be the feete they would needs teach their eies to see But we are more happy and need not make this our owne complaint being no otherwise troubled than with a very learned and most religious Laitie But how the Lay Patrons heretofore behaved themselves in the matter in hand we shall see Though I mention only the Lay yet I excuse not the Clergie Patrons otherwise than thus that they were but few and not so likely to wrong the Church in regard of their proper interest The Patrons abused their libertie many waies if we consult with the severall Councels which have provided against this we shall find them sometimes presenting illiterate and unworthy men Priests of the lowest of the people men that can thinke so meanly of the Ministerie as to make suit to come into the Priests office for a piece of bread 1. Sam. 2. This is noted in the Councell at Colen An. 1536. where they are said to present their owne sonnes and kindred citra ullum delectum aut discrimen scientia morum ac atatis There also it is complained that there were some qui admotis nomen tantuÌ„ relinquunt that promoted the Incumbent only to a bare name reserving the revenue to themselves ausuquodam sacrilego as they are there censured by the Councell and some were so exorbitant in this kinde that they would present their yong boyes and children as if by the same law of Nature they could beget Priests and men Concil Palent Const 14. This is litle better then that of Miâ—ha the man of mount Ephraim qui ipse sibi fecâ—â— sacrificuluÌ„ though this might be well endured that the Sonne should make the Priest when the Mother the Founder had made the Gods But this was done too when there was no King in Israel and every man did that which was right in his owne eyes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 otherwise so abominable an act could never have pass'd as the son of Gersom hath observed upon the place The Councell of Salizburgh under Martin the 5. telleth us of certaine Patrons that used to compound with the Incumbent for a Moyerie of the profits and this in the German Councell under Conrade is styled vulnus cancrosum et simontacum And see to this purpose the Councel of Wormes in 886. Vt Presbyters Others not contented with a part of the obventions made the bargain to have halfe for in the second Bracaran Councell C. 6 we finde some that built their Churches non prode v 〈…〉 fides sed pro quastus cupiditate not for devotion but filthy lucre that they might share alike with the Incumbent in the offerings of the Church Sometimes it fell out that the same Church had severall Patrons and these in the vacancie for the most part disagreed about the Presentee and this was a great inconvenience for in the interim during their discord the Bishop was to take away the Reliques and seale up the Church Some Patrons for their Presentations expected to be gratified with gifts and largesses and the like and
Idem part 22. q. 87. art 1. who was figured by the tenth number All which that we may grant to be true betweene Christ and all mankinde as it is true indeed and that ten is the perfection of the other numbers under ten for that all the rest of the Digits when they come to ten returne back againe to ten and are multiplied by the coupling of themselves with ten yet where is this proportion betweene Christ and ten in the Scripture that should make this Ceremonie which if it cannot be found any where nor any consent of the primitive Church shewed for it as I thinke it cannot be then may it with as good authoritie be rejected as it is received For albeit Thomas Aquinas himselfe was tearmed a Seraphicall Doctor that is such a one as had a sense in the understanding of the holy Scripture above all others of his age and that he did much profit the studie of Divinity with his wittie distinctions yet is not his authoritie such that it must prevaile in cases of Divinitie without the authoritie of the Scripture and the consent of the ancient Fathers of the primitive Church interpreting this peece of Scripture in that sense as he doth which would make a sweet harmony if it might be had And therefore as to my poore sense better said a learned man of our time to this point writing upon the Sabbath day Iunius in 2. c. 3. Geneseo◠in the second of Genesis which may be also proportionably understood of the tenth for that they were both before the Law in their very number and were but repeated by Moses under the Law because they had beene approved by God before the Law in the selfe same numbers and that which hee saith of the Sabbath is this that albeit it hath a Ceremoniall designation of the day that is that it doth figure unto us our perpetuall rest which we shall have in heaven after that there is a new heaven and a new earth yet there is therein two parts the one naturall the other positive as that God should have a seventh day of worship this is Naturall and therefore doth remaine because it is perpetuall but that this seventh day of the Lords worship should bee the seventh after the Creation of the world this was positive and therefore was changed by the Apostles and blessed men of the primitive Church into the seventh day after the Resurrection of our Saviour Jesus Christ which as it is verified by him in the Sabbath so may it be in like sort vouched by like reason in the tenth wherein also by like semblance there are two parts the one naturall the other positive The naturall is this that God our of all the fruits of the earth the increase of cattell that are worthy of him and fit for mans use should have a tenth both in the acknowledgement of his universall government over us and also for the provision of his ministers and therefore this remaineth in that sence immediately after the disolution of the Jews policie the good Christians of the Primitive Church as soone as they could get any outward forme of a Church peace from persecution received it in the very quotitie as a thing no lesse belonging to their Ministers than it did appertaine to the Priests Levites of the Law But that the Lord annexed these Tythes by Moses to the Priest Levites for their maintenance during the time of the dispensing of the mysteries under the Law this is positive and therefore changed by the good Christians in the Primitive Church frō the Jewes Ecclesiastiques to the Christian Ecclesiastiques Neither can it be thought that this number came frō the Judiciall part of the Law as a fit proportion to maintain one Tribe out of the revenues of the other eleven Tribes for that this number or quotitie was revealed to be Gods long before the Law and before there were any such division of Tribes among the people of Israell which then were not but were parted afterward by Moses into families according to the number of the twelve sonnes of Jacob. And therefore it is not to be presumed that the Law which came long after imprinted a forme upon that which was so long in beeing before there was any Law or Ceremony But as the Apostles or prime Christians vvhen as they did first change the day of the Sabbath by divine inspiration or otherwise from the day of the Creation to the day of the Resurrection durst not substitute any other day into the place of the first day than a seaventh for that the Lord had revealed his pleasure in many places of the Scripture as concerning that number for his day of vvorship so that no other day could be appointed for his day of worship than a seaventh So neither durst the good Christians of the Primitive Church moved no doubt with no other instinct then the other were when they translated this provision of Tythes for their ministery from the Jewish Church unto their owne Church change the number of ten into another number besides more or lesse For that God had no lesse manifested his will in sundry parts of the Scripture as concerning this number to be a number for the maintenance of his ministrie than he had declared his pleasure as concerning that other number to be a day for his honour challenging it every where in the Scripture in the very quotitie for his owne right and counting it robberie if it were at any time with-holden from him And therfore it may be well thought the School-men herein did great wrong to the Church who by their quaint distinctions brought this certaintie into an uncertaintie which is no where to be found in the Scripture Which I am more bold to speake for that I see some have trod this path before me and shewed by good demonstration that the turning of this quotitie into a competencie is a thing nothing warrantable by the word of God but that the quotitie ought still to stand as a perpetuall right due to God and his Church But hereof hitherto CHAP. V. SECT 1. That a Bishop being Lord of a manor and prime Founder of a Benefice could not in the first erection thereof by his own capacitie retaine any Tythes in his hand and passe the same after in Lay fee to his Tenant and so give cause to his Tenants of prescriptions against the Parson ANd so having passed over this whole proviso of Law Statute Priviledge Prescription and Composition I might well leave the turning of this stone any more but that yet there remaineth one Prohibition of prescription to be handled which in my fancie is worse then all therest for that it draweth away from the Parochian Church her maintenance transferreth it upon Lay and that which is worse it makes Bishops to be instruments hereof who are to be patrons and defenders of Churches and not pillers or powlers of the same And yet the authors thereof do
priviledge granted to religious orders 200 Stephen Pasquier censured 165. 166. 170. his mistake in a quotation 169 Passage-money 62 Patricii who 45 Patrons may present not ordaine Clerkes 57. their power to erect a Church 191. 193. dependeth upon the Bishop ibid. to endow and fill it 194 195 196. the abuse of their authority 198 199. taken notice of by severall Councels ib. Peeres 105 Pearles by whom to bee worne 42 Perpetuall right betweene passengers 90 Peter-pence when first paid 139 Philosophers why no stipend allowed to them 30 Physicians by Constantine made Earles 47 Pipin buried with his face downwards 165 Piracie what 94. onely punishable by the Admirall Law 273 Pirates 95 Plaintifes office 79 80 Plea of Tenements and of Dowrie have beene of Ecclesiasticall cognisance 118 Plough-almes what 140 141 Pluralities in what case tolerated 85. the abuse of pluralitie of Executors 269. with the remedie 270 Poets denied the priviledge of other professors 40 Popes precedencie 66. whether first granters of Impropriations 190 Popular Actions 22 Possessorie right what 94 Post-horses 49 Postulation of Bishops what 76 Practice of the Civile Law necessary in this Land 272. of such cases as are not provided for by the Common 262 263 Prayer and Preaching conferred 188 189 Preaching preferred ib. Precedencie of States 104 105. of Knights and Doctors 106. of the Pope 66 Priests why called Sacerdotes 34. why Presbyters ibid. why prohibited marriage 253 Prelates excesses 86 Premunire what 122. the originall of it ib. 125. the litle use of it 123. the Statute expounded 124. wrested by our Common Lawyers ib. in force against Priests and Jesuites 125 Prenotary his place 46 Prescriptions the kinds and effects of them 17. for Lay-men to hold Tythes in fee how ancient 163. prescription supposeth possession 216. lyeth not against a mans selfe ib. Presentation originally the Bishops right 196 197. why devolved to lay-patrons ibid. how abused by them 198 199. and therefore a resumption attempted by the Bishops ib. Pretor who 45 Primicerius whence 46 Princes not to bee traduced 85. their name to be put in all Instruments 56. their titles and supremacie 103 104. they should befriend the Church 211. whether the first granters of Impropriations 190 Principall what and what Accessorie 233 Prison-breakers how punished 21 Priviledges what 182. of Religious Persons 188 Prizing of goods oft-times partiall 266 Probates of Wils how farre effectuall 137 Proces in Ecclesiasticall Courts 78 79. by Accusation Denunciation or Inquisition 84 Prodigals estates how provided for by the Civile Law 268. who so accounted 11 Professours excused from services 40. made Earles 47 their stipends 29 Promises to be kept 29 Promoters office 37 Property of things what 93. how got ib. Protocols what 56 Publick workes by whom to bee made 29 Punishment by death foure-fold 25. of souldiers 99 Pupils estates how to be ordered during their minority 9. 10. Purgations Canonicall and Vulgar 86 Purple a weare peculiar to Princes 42 Purser of a ship 90 Q Queene next in ranke to the King 104 Quotitie of Tythes Morall 203. not Judiciall 205 R Racking when to be used 25 Ranks of the Nobilitie 104 105 Receivers of Theeves how punished 20 21 Reformation at the first wherein defective 212. Refutatio feodi what 73 Reliefes of the Civile Law proposed 255. seq Religious persons of what life they should be 184 Reprisals whether lawfull 56. how differenced from piracie 95 Residencie required 81. except in case of sicknesse ib. Retractation of sentence within what time it may bee made 37 Rhodians ancient marriners 90 Right what 2. to any thing how gotten 15 Rolles what they comprehended 47 Rulers of Provinces their office 54 S Sabbath partly naturall partly positive 204 205 Sacraments by whom not to be administred 85 Sacred Mysteries not to be celebrated in private 57 Salick Law 109 Salomons Temple 219 Sanctuarie to whom advantagious 36 Sarum Church by whom and how endowed 190 Satisdation what 94 Saxon Lawes 138 139 Schooles for Henchmen what 48 School-mens curiositie wherein prejudiciall to the Clergie 162. 202 Sea-affaires determinable by the Civile Law 88. Sea common ibid. Secretaries place 46 Secundocerius what 46 Senate of Rome why they refused to admit Christ into the number of their Gods 235 Senators who 46. 48 Seperatorum seperata est ratio 222 Sepulchers violated the punishment 20 Services of the Common-wealth of three sorts 28. exemption from them how procured ib. services to the Exchequer 39. who exempted from personall services 40. Divine Service not to be disturbed 66. not celebrated by Laymen ib. Souldiers priviledges wages discipline c. 48 49. they only permitted to carrie weapons 54. their diet and apparell 98. their faults ib. and punishments 99 Sonne not to succeede the Father in Spirituals 76 77 Spousals what 9. Spurii who 244 Stage-players incapable of some immunities 43 Starre in Cassiopea prodigious 170 Statute of Premunire expounded â—24 those concerning matters Ecclesiasticall imperfect 127. of Henry 8. and Edw. 6. how to be interpreted 256. how supplied 258 259. The word Statute doth not inferre Temporall cognisance 158. Statute of Mortmaine why made and by whom 183 Stealing before the Will be proved how punished 21. of Children or men 24. of women 67 Stellionatus crimen 21 Stipends for liberall Sciences 29. none for Lawyers nor Philosophers 30 Strangers how to be intreated 60 Students excused from personall services 40 Subjects of how many sorts 27 Subsidies 38 Successions 63. 71. in Spirituals 76. of great personages 109. whether the Sonne borne before his Father was King ought to succeed in the Kingdome 111. whether the grand-Childe or second brother be to succeed 112 Suerties not to be sued before the principall 51 Suertiship of women how to be releeved 7 Suing out ones Liverie 71 Superimpositions when used 38 Supervisors of Wils whereto usefull 270 Surveyors office 44 Swearing capitall 59 Sylva caedua in the Statute canvassed 229 230 Symonie 64. 84. T Templars exempted from Tyth-paying 200 Tenth Number the perfection of the rest 203. whether a Figure of Christ. 204 Tenure vid. Feud For terme of life or yeares 70. perpetuall ib. Testaments by whom they may be made 11. a priviledge granted by Princes 265. The kinds proofe and publication of them 11. if doubtfull how to be understood 12. though imperfect yet stand good for Children 61. how much may bee bequeathed 12. how many witnessesrequired to the making 135. when lands are devised 137. a part of Ecclesiasticall Jurisdiction 134. but in part rent from it 135 Testimonie of one witnesse dangerous 136 Theft the definition division and punishment of it 18 Theodosius Author of the Statute of Mortmaine 183. and therefore disliked by â—erome and Ambrose ib. Tiberius requesteth that Christ might be admitted into the number of the Roman Gods 235 Timber by nature Tytheable but exempted by Statute 230 Titles which have beene triable in Ecclesiasticall Courts 114. 115. 116. c. Title of lands varieth not with