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
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
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
somtimes at Rome in Italy somtimes at Avignion in France sometimes in other places as by the date of the Bulls and other processe of that age may be seene which severall removes of his gave occasion to the Parliament of inserting the word Elsewhere in the body of those Statutes that thereby the Statutes providing against Processe dated at Rome they might not bee eluded by like Processe dated at Avignion or any other place of the Popes aboade and so the penaltie thereof towardes the offender might become voyde and bee frustrated Neither did the Lawes of this Land at any time whiles the Popes authoritie was in his greatest pride within this Realm ever impute a Praemunire to any Spirituall Subject dealing in any Temporall matter by any ordinary power within the Land but restrained them by Prohibition onely as it is plaine by the Kings Prohibition wherein are the greatest matters that ever the Clergie attempted by ordinary and domesticall authority and yet are refuted onely by Prohibition But when as certaine busie-headed fellowes were not content to presse upon the Kings Regall jurisdiction at home but would seeke for meanes for preferment for forrain authority to controule the Judgments given in the Kings Courts by processe from the Pope then were Praemunires decreed both to punish those audacious enterprises of those factious Subjects and also to check the Popes insolencie that hee should not venter hereafter to enterprise such designments against the King and his people But now since the feare thereof is past by reason all entercourse is taken away betweene the Kings good Subjects and the Court of Rome it is not to bee thought the meaning of good and mercifull Princes of this Land is that the cause of these Statutes being taken away the effect thereof should remain and that good and dutifull Subjects stepping happily awry in the exercise of some part of their jurisdiction but yet without prejudice of the Prince or his Regall power shall bee punished with like rigour of Law as those which were molesters greevers and disquieters of the whole estate But yet notwithstanding the edge of those Praemunires which were then framed remaine sharpe and unblunted still against Priests Jesuites and other like Runnagates which being not content with their owne naturall Princes government seeke to bring in againe that and like forraine authoritie which those Statutes made provision against but these things I leave to the reverend Judges of the Land others that are skilfull in that profession onely wishing that some which have most insight into these matters would adde some light unto them that men might not stumble at them and fall into the danger of them unawares but now to Prohibitions SECT 2. The impeachment thereof by Prohibition and what it is A Prohibition is a commandement sent out of some of the Kings higher Courts of Records where Prohibitions have beene used to be granted in the Kings name sealed with the seale of that Court and subscribed with the Teste of the chiefe Judge or Justice of the Court from whence the said Prohibition doth come at the suggestion of the Plaintife pretending himselfe to be grieved by some Ecclesiasticall or marine Judge in not admittance of some matter or doing some other thing against his right in his or their judiciall proceedings commanding the said Ecclesiasticall or marine Judge to proceed no further in that cause and if they have sent out any censure Ecclesiasticall or Marine against the Plaintife they recall it and loose him from the same under paine of the Kings high indignation upon pretence that the same cause doth not belong to the Ecclesiasticall or Marine Judge but is of the temporall cognisance and doth appertaine to the Crowne and dignitie Of Prohibitions some are Prohibitions of Law some other are Prohibitions of Fact Prohibitions of Law are those which are set downe by any Law or Statute of this Land whereby Ecclesiasticall What are Prohibitions of Law Courts are interdicted to deale in the matters therein contained such as are all those things which are expressed in the Kings Prohibition as are also those which are mentioned by the second of Edward the sixth where Judges Ecclesiasticall are forbid to hold plea of any matter contrary to the effect intent or meaning of the Statute of W. 2. Capite 3. The Statute of Articuli Cleri Circumspectè agatis Sylva Caedua the treaties De Regia Prohibitione the Statute Anno 1. Edwardi 3. Capite 10. or ought else wherein the Kings Court ought to have Jurisdiction Prohibitions of fact are such which have no precise word or letter of Law or Statute for them as have the other but What are Prohibitions of fact are raised up by argument out of the wit of the Devisor These for the most part are meere quirks and subtilties of law and therefore ought to have no more favour in any wise honourable or well ordered Consistorie than the equity of the cause it selfe doth deserve for such maner of shifts for the most part breed nought else but matter of vexation and have no other commendable end in them though they pretend the right of the Kings Court as those other Prohibitions of the Law doe but the Kings right is not to be supposed by imagination but is to be made plaine by demonstration and so both the Statute of the 18. of Edward the third capite 5. is where it is provided that no Prohibition shall goe out but where the King hath the cognisance and of right ought to have and also by the fore-named Statute of Edward the sixth which forbids that any Prohibition shall be granted out but upon sight of the libell and other warie circumstances in the said Statute expressed by which it is to be intended the meaning of the Law-givers was not that every idle suggestion of every Attourney should breed a Prohibition but such onely should bee granted as the Judge in his wisdome should thinke worthy of that favour and if right and equitie did deserve it although as I must needs confesse the Statute is defective in this behalfe for to exact any such precise examination of him in these cases as it is also in other points and is almost the generall imperfection of all Statutes that are made upon Ecclesiasticall causes but I feare mee as emulation betweene the two Lawes in the beginning brought in these multitudes of Prohibitions either against or beside law so the gaine they bring unto the Temporall Courts maintaineth them which also makes the Judges they cesse not costs and damages in cases of consultation although the Statute precisely requires their assent and assignement therein because they would not deterre other men from suing out of Prohibitions and pursuing of the same The Prohibitions of the law as have beene before shewed are neither many nor much repined at because they containe a necessary distinction betweene Jurisdiction and Jurisdiction and imply the Kings right and Subjects benefit but the
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
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
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