common with others Those are common with others which other men fall into and are corrected with like ordinary proceeding as other crimes of like nature are as man-slaughter theft adultery and such like Those are proper which doe properly appertaine to militarie discipline and are punished by some unu 〈…〉 or extraordinarie punishment as are these not to appeare at Musters to serve under him he ought not to serve to vage or wander long from the Tents although he returne of his owne accord to forsake his Colours or his Captaine to leave his standing to fly over to the Enemy to betray the Hoast to be disobedient to his Captain Coronell or Lieutenant to lose or sell his Armour or to steale another mans to be negligent in forage or providing of victuall to neglect his watch to make a mutiny to fly first out of the field or other like which are delivered in the late cited titles Concerning this Arrian who wrote the life of Alexander the great thus saith Every thing is counted an offence in a Souldier which is done contrary to the common discipline as to be negligent to be stubborne to be slothfull The punishments wherewith Souldiers are corrected are these either corporall punishment or a pecuniarie mulct or injunction of some service to be done or a motion or removing out of their places and sending away with shame By capitall punishment is understood for the most part death or at the least beating unlesse happily it be pardoned either for the unskilfulnesse of the Souldier or for the mutinie of the company being thereto drawen by wine and wantonnesse or for the miseration or pittie of the party offending All which a wise Judge moderateth according to the quality of the person the quantitie of the offence and the opportunitie of the time SECT 6. That the third and last matter of extraordinary Cognisance in the Civill Law here with us concerneth the bearing of Armes and ranging of every man in his proper place of honour and first of Armory THe last extraordinary matter that the Civile Law Judge dealeth in is the bearing of Armes and the ranging of every man into his roome of honour according as his place requires and here first of Armes For skill in Armory although it be a thing now almost proper to the Heraulds of Armes who were in old time called Feciales or Caduceatores because they were messengers of warre and peace either to proclaime the one or denounce the other yet the ground thereof they have from the Civile Law so that thereby to this day they may be directed in their skill or controlled if they doe amisse For besides that there are many other places in the Law C. ut nemo privatus praediis suis vel alienis vela regia imponat ut nemini liceat sine Jud. author signa imponere c. De statuis imaginib ut nemini liceat fignum salvatoris c. De his qui potentiorum nomine titulos praediis suis affigunt ibi doct ff dererum divisio l. sanctum C. de ingenuis manumiss l. adrecognoscenda ff de rerum divisione l. sanctum which touch Armory as appeareth by the titles here quoted in the margent Barthol himselfe maketh a speciall tractate thereof and divideth the whole matter of Armes into three ranks according to the divers sorts of men that bare them for some are Armes of some publick dignitie and office as the Armes of the Legate or Proconsull the Armes of Bishops the Armes of the Lord Admirall other are Armes of speciall dignities as Armes of Kings and Princes which no man is to beare or paint in his house or stuffe unlesse it bee for to shew his duetie or subjection therein The third sort is of those which are private mens Armes of whom part have them by the grant of the Prince or by authoritie of those to whom the Prince hath given power to grant Armes to others as hath the Earle Marshall within this Realme of England others have taken them by their owne authoritie which albeit in former times they might doe as also they might take such names as every one did like of for names and signes in the beginning were invented for to know and discerne one man from an other and as every man might change his name so might hee change his signe so that it were not done in fraud and deceit but after it was forbidden both that any man should C. de mutatione nominis l 1. ff de Falsis l. sal si nominis change his name because it was not thought it could be done with any good meaning and that no man should beare Armes of his owne authoritie and therefore Officers were appointed under Princes as I have said who should give Armes to such as deserved well of the common-wealth either in warre or peace for albeit in the beginning Armes and Colours were proper to men of warre to avoid confusion in the hoast and to discerne one company from an other yet when it came to be a matter of honour it was challenged no lesse by men of peace than by men of warre for true indeede is that saying of Tully Parva sunt foris arma nisi est consilium domi and the Emperour speaking of the benefit that Advocates and such like bring to States L. Advocati C. de Advocatis diversorum â—udicorum and Common-wealths saith thus Advocates which breake the doubtfull fates of causes and with the strength of their defence sundry times as well in publick causes as in private raise up those that are falne and releeve those which are wearied doe no lesse good unto man-kinde than if by warre and wounds they saved their parents and countrey for we saith hee doe not count that they onely doe warre for our Empire which do labour with sword shield and target but also our Advocates for indeed the Advocates or Patrons of causes doe warre who by confidence of their glorious voyce doe defend the hope life and posteritie of such as be in danger thus saith hee and thereupon commeth that distinction of Castrense peculium Et quasi castrense peculium signifying thereby that albeit Counsellours to the state Lawyers and such like be not actuall warriers yet they are representative warriers and doe no lesse serve the Common-wealth than they The Souldier riseth betime in the morning that he may goe forth to his exploit the Advocate that hee may provide for his Clients cause hee wakes by the trumpet the other by the cock he ordereth the battell the other his Clients businesse hee taketh care his tents bee not taken the other that his Clients cause be not overthrowne so then either of them is a warrier the one abroad in the field the other at home in the Citie Besides Barthol treateth in that place what things are borne in Armes either naturall as beastes birdes fishes mountaines trees flowres sunne moone starres or such like or artificiall not taken
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
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
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
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
else but robberie and bloud-shed or they are so termed of the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is of their wandring up and downe and resting in no place but coasting hither and thither to doe mischiefe A Pirate is a Sea-thiefe who for to enrich himselfe either by subtilty or open force setteth upon Merchants and others trading by sea ever spoyling them of their loading if they get the upper hand and somtimes bereaving them of their life and sinking of their ships The proceeding of these Criminall matters is by accusation and information and after by triall of twelve men upon the evidence according to the lawes of this land and the lawes of the ancient Feudes of Lombardie where the like triall is and from whence it seemeth this of ours was first derived But here must wee note that matters of reprisals are no piracies although many times there fals out no lesse outrage in them for spoyling and slaying of men than doth in the other for that Reprisals are done by the Princes commission granted to the subject for redresse of some injurie done to himselfe or his subject by some other forreine Prince or subject and amends hath beene required by law and cannot be had whereupon licence is given to the subiect to releeve himselfe by what way he can against the other Prince or any of his subiects by taking so much goods of his as himselfe was indamaged which course is held among Princes the rather to afford Justice where it is lawfully demanded Bartol l. nullus num 2. C. de Judeis Coelicolis SECT 4. That the things which extraordinarily belong unto the Cognisance of the Civile Law are of three sorts and concerning the first which respecteth treaties betweene Prince and Prince ANd thus much of the causes which ordinarily doe belong unto the Cognisance of the Civile Law within this land Now it followeth that I speake somewhat of those things wherein the Civile Law dealeth incidently and by authoritie of the Prince is not the ordinarie object of the Civile law howsoever otherwise they cannot be handsomly dealt in but by such as have the skill of the Civile Law Whereof there be three sorts the first is matters of forrein treatie betweene one Prince and another the second is the ordering of martiall causes whether they be Civile or Criminall in an Army the last is the Judgements of Ensignes and Armes and the decisions for challenges of rights of Honour and precedencie where any of them is in controversie For the first whereas all other Nations in compasse round about us be governed by the Civile Law and treaties are to be decided by Law both for those things which are in question and to be concluded by Law and for those things which are determined by consultation and agreed upon who is thereto to be chosen rather than a Civilian to whom their law is knowne as well as to themselves and if perhaps he understand not their language yet hee understandeth that language wherein the lawes themselves are written and is the fittest tongue for treatises betweene Princes and Princes because it is a common tongue to the learned of all the West part of the world and thereby every Prince shall reteine his owne Majestie in parlying as it were in his owne language and not be forced to speake in an other Princes tongue which no doubt is a great disadvantage to him that shall treat for that every Nation hath some proper Idiom not so well discerned by the booke-speaker as perceived by the Natives of the countrey where it is spoken and wherein a stranger may easily be deceived How much forreine Princes doe esteeme of the skill of a Civilian in these matters it may be understood thereby that they never for the most part send any Embassage for the treatie of any league or matter of commerce but that one or moe of them are Civilians And if the care of these things be so great with them surely the estimation of the same ought not to be light with us for by what lawes their leagues and negotiations use to bee directed by the same must ours bee ordered so that for that point one kinde of learning must serve for both for that otherwise one Nation will not be convinced by the other what their capitulations are Surely such as over and besides their owne experience have the knowledge of the Civill Law have herein a double helpe above another man that wanteth the same First their owne understanding which for the most part is of like proportion as other folks is Then the skill of the Lawes themselves which are a quintessence of wit above other humane learning and were either wholly composed of the mature and deliberate resolutions of such Emperours as then swayed the whole world or were the doomes judgments of such wise men as then managed the whole world and the affaires thereof under them But who when hee seeth a sword in it's scaberd knoweth whether it will cut or not although the forme thereof be a presumption that it will but doe but draw it out of the scaberd and try the blade thereof and then shall you see the sharpenesse of it I make no application hereof for that my meaning by my words may be well enough knowne But in these matters the wisdome of the State knowes best what is to be done and I onely remember what other Nations doe leaving the rest to their gravest considerations who by precedents of former times and men of experience furnished with exoticke tongues have carried this part of pollicie very well and safely hitherto but now to the or 〈…〉 g of Martiall causes SECT 5. What are Martiall causes which are the second extraordinary matter belonging to the Cognisance of the Civill Law with us MArtiall causes are either Civill or Criminall whereof both are determinable by the Civill law A Civill Martiall cause is where either the Captaine or the Souldier requireth some thing that is due and withholden from him as his stipend his apparell which among the Romans was due twice a yeare that is their Sommer apparell from the first day of April to the first of September and their Winter from thence to Aprill his diet which among the Romans was two dayes hard bisket the third softer bread one day wine an other day vineger one day bacon and two dayes mutton his priviledges either in cases of preferment as to be removed from one degree to another or in cases of immunitie as to be freed from all servile functions If. de re militari Câ—eod tit l. 12. ff de privilegio veteranorum de castrensi peculio C. eodemtit l. 12. C. de erogatione militaris annonae C. de vest militari and sundry other like which a diligent reader may gather out of the titles of the Digest and Code of militarie affaires and other like titles which accompany them Souldiers faults are either proper to themselves or
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
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
division I will in a word or two make plaine the necessitie thereof And therefore for a ground of all the rest I will assume this for a matter confessed that every man knowes that every well ordered Common-wealth stands on two parts principally the politick part which consisteth of the Prince and people and the Ecclesiasticall part which standeth in Sacris Sacerdotibus And therefore well said the Emperour Two of the greatest things that God ever gave unto In authent quon oport Episcopod in prin col 1. Auth. de non alienand c. rebut Eccl. c. 2. §. 1. the world meaning earthly things was the Empire or secular government whereby the outward man is ordered and made as Aristotle saith bonus civis that is a good and loyall subject and the Priesthood whereby the inward man is ruled and is made as the said Author testifieth bonus vir that is a good and vertuous man which are two wonderfull effects of the whole government in generall neither can the one of these be wanting but the other will be ruinated and brought to desolation Secondly no man is ignorant of this but in politique government two things sway the whole state the one is peace at home and the other is warre abroad which as they have their seasons so they have their causes and effects the one from counsell at home the other from discipline abroad neither can the one or the other of these be maintained but by their private and proper Lawes Beside in peace who seeth not there is as much need of vent by sea for to benefit the Common-wealth by either by importation of those things that wee want at home or by exportation of those things wee abound with as there is provision to be made for the increasing and preserving of those things that wee have rising and growing by land in our owne countrie neither of which can be had or injoyed without their proper Lawes fit and appertaining to either policie And what Law is there that ordereth these businesses but the Civile Law onely which giveth a forme to Navigation and all occurrents that happen by sea whether they be in or about the Navigation it selfe or the concontracts or as it were contracts that are made in upon or beyond the same As a Legall forme is requisite in peace at home and Marine affaires abroad that every thing may have his due effect according to the right thereof so also it is necessary in warlike exploits upon the Sea that every action have his limits and bounds whereby Justice may bee ministred which if it be to be observed where lawfull warre is held betweene Prince and Prince that every one be not left unto his owne lust much more is it expedient to be put in ure in Piracies and other Sea-robberies where the innocent is spoyled and the spoiler is enriched The redresse whereof is not but by the Admirall Law to whom the Princes of this Land have granted that authoritie For the often commerce of Princes with Princes the negotiation that one State hath with an other there is nothing more necessary than frequent Embassages wereby intelligence may be had what danger one State intendeth to an other how the same may be prevented by Leagues or otherwise and how the same may be made and maintained I know not what Law serves better for all these ends and purposes than the Civile Law In matters that appertaine to the soules health the Preacher teacheth out of the word of God wherein the right service of God standeth hee ministreth the Sacraments unto the people and instructeth them in other fundamentall points of Religion but it is the Ecclesiasticall Law that compelleth men to the due observance hereof and punisheth the trangressors All men grant that there is a provision to be made for the Minister for that it is against reason that any man should goe to warfare on his charges but it is the Law of the Church that sets out this provision and yeeldeth remedie for the recoverie thereof if it be denied Nothing is more due unto the dead than that their last Wils should be observed for that it is such an ordinance as a man hath not in his power againe when God hath once called him hence neither is there any thing that Princes have more gratiously granted unto their subjects than that in their life-time they may dispose of that which after they are dead is none of theirs and yet shall take place when they are not as though yet they were theirs in which provision the Civile and the Ecclesiasticall Law are above all other Lawes most religious Christening Wedding Burying whereby a man entreth into this world converseth in the world and returneth againe unto the earth from whence he was taken and so after passeth to glorie and everlasting blisse are every one of the Ecclesiasticall cognisance How many men of great skill such as few Princes have greater in all kinde of learning are of this ranke not only in the societie of them that professe this knowledge here in the chiefest Citie of the Land but also in both the Universities and in sundry other places of this Realme not strangers or forrainers but home-borne subjects of the same faith of the same religion of the same kindred and familie of like alleagiance to the Prince and service to the Commonwealth as other his good subjects are even those that oppugne this profession chiefly whose practice if it be overthrowne or provision lessened not onely those that are now present make profession of this knowledge shall be faine to turne their copie but those that are futurely to come will change their profession when they see there is no reward or estimation belonging thereto for it is honour that nourisheth Arts and no man will follow that profession that is out of count and credit but every Father will say unto his Son in like sort as Ovids Father said to him when hee saw him addict and give himselfe wholy to Poetrie Studium quid inutile tent as It was anciently said of the profession of these Lawes Dat Justinianus honores but now it is so far off from that that it conferres honours as that it is almost a discre dit for any man to be a Civilian in this State and the profession thereof doth scarce keepe beggerie from the gate As God doth dispose his government by justice mercie whoreof notwithstanding mercie hath the supreme place in the Lords Tabernacle as that which was put above upon the Arke wherein were the two Tables of stone in which the Law was written to which St James alluding Exod 25. saith that mercie triumpheth over judgement so the Princes of this Land to the imitation of that heavenly representation lames 2. have appointed two supreme seats of Government within this Land the one of justice wherein nothing but the strict letter of the Law is observed the other of Mercie wherein the rigour of
damages 156 Deacons at what age to be ordained 65 Dead corses not to be injured 58 Debts unknowne a pretence used by Executors 264 Debters not to be Guardians 59 Decision of controversies how many waies effected 9 The Decrees what 74. their Authors ibid. Decretalls what 74 Decurio his office 27 Dedication of Churches 52. 191 Defects in what manner they may be legally objected 238. defects in the Statute how they may be supplied 259 Defendants office 79. 80. He may chuse his Court. 119 Degradation of Clerkes 95. 117 Dice play how provided against 6 Diffamation what 235 in word writing or deed ib. of crimes 236. 237. of defects 238 both of Ecclesiasticall cognisance ib. how punished 239. 240 Digests what 41. why so called 4. the division of them 5. seq Difference from the Code 32 Dimissorie letters 26 Diocesans right in Churches vid. Bishop Dionysius his head 171 Discipline 98. 99 Divine service not to be disturbed 66 Division of Parishes 152. 153. Of Churches dues 154 Divorce what 9. for what causes ibid. 55. 83. children after their parents divorce how to be educated 62 Doctors precedencie 106 Dowrie of the first wife not to be bestowed on the second wifes children 51. 263 preferred before all debts 61. plea of Dowrie 118 Duties imposed by the Exchequer 39 Dupleix the historian excuseth Martellus fact 165. defendeth it 168 E Earle Marshall hath authoritie to give armes 100 Earth Tythe-free 222 Ecclesiasticall jurisdiction 35. equally the Kings as the Temporall 147. severally impeached 115. by premunire and prohibitions 121. 122. in matters of Admiraltie 128. 129. of willes 134. 135. of Tythes 146. 147 c. of waste ground 223. in cases of diffamation 237. 238. of bastardie 243. sequent Ecclesiasticall Lawe vid. Law Ecclesiasticall persons immunitie 65 Ecclesiecdici what 115. 116 K. Edgar's law 140 K. Edmunds law 139 K. Edward the third heire to the Crowne of France 109. Edward the Confessours Lawes 141. Edward the sixt his statute concerning Tythes 145. now perverted 146. seq Ejectments in tempests 90 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 what 71 Election of Bishops 64. 75. 76. of the Pope ibid. Q. Elizabeth commended 109. misguided in one particular 210 Elsewhere in the statute of premunire how to be understood 124 Embassadours vid. Legates Ember daies their originall and end 76. 77. why so called ib. Q. Emma acquitted by fire Ordeall 86 Empire an elective state 109 Emulation an occasion of prohibitions 127 Enhansers of the price of things 24 Epistle betweene Pope Marke and Athanasius questioned 154 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 what 191 Espousals 82 Esquires whence their name and title 107 Eucherius his vision 165. what credit to be given to it 170. 171 Eunuch makers how to be punished 67 Exceptions of severall sorts 17. when alleaged ib. Exchequer what 26. the revenues thereof 37. 38 duties which it imposeth 39 Executors delay of paying legacies how provided for by the Civill Law 265 their dutie ib. injustice in prizing goods ib. Constantines Law concerning the same 269 the remedie thereof 270. when the Judge may take bond of the Executor ib. 271 Expences of Law recoverable in Ecclesiasticall courts 260 Exemption from Tythes to whom first granted 200. how after restrained ib. Extraordinary crimes 19. 20 Extravagants of John the 22. 15 F Faires their priviledges 29 Falcidia lex what 12. 51 Farmers priviledges 45 Fathers urged for the moralitie of Tythes 163. 164 Feciales 99 Fee-farme what 45 Fees not to be enhansed 20. 66 Feuds what 68. their originall and division ib. their compilers and Etymon 69. how they may be lost 72 Fewell Tythable 222 Fiction what 128. examples thereof 129 Fire Ordeall 86 Follis aurea 45 Fonts their originall and progresse 176 Force and force armed 15. publique and priuate 22 Forfeiture of Feuds 73 Forgeries of severall sorts 23 Founder of a Church what power hee hath 193. 194. 195 Fruits falling in another mans ground 16 Fundi limotrophi 68 G Gangra Conncell maketh B. to dispose of Church goods 194. Gentlemen 106. of how many rankes 107 Gifts how challengeable 14 15. which to be enrolled 56 Gods love to his Ministers 119 120 Gold preferred before other mettals 219 Gothes invasion of Italy 164 Government of women lawfull 109 but not convenient 110 Governours of Cities their office and power 29. their election 53. Governours of Provinces their directions 54. 61 Granges what 191 Gratian the compiler of the Decrees 74 Greevances of the Common-wealth not provided for by the Common Law 262 263. seq concerning parents ib. yet might have remedie from the Civill ib. concerning Executors 264. with the remedie 265 Gretsers reprehension of Junius 191 Guardians office 10 59 Gynaecocratie lawfull 109 H Heath grounds vid. Waste Henry 4. his Statute concerning exemption of Tythes 200. Henry 8. his Statutes concerning Tythes 143 144. now perverted 146 147. his act of subversion of Abbeyes wherein deficient 212. and perhaps therefore punished 212 213 Heralds why called feciales 99 Hereticks 35 36. 62 Historians who most creditable and why 166 Homage 69 Honourable places 45 46 Honorius Archbishop of Canterbury brought in the division of Parishes 152 153 Hospitals of severall kinds 34 Hospitallers exemption from Tythes 200 Hunting not permitted to Clerkes 85 Husband mens immunities 43 Second Husband in case hee defraud the children of the first what remedie 268 I K. James his care over the Church 211. 213 Jealousie how to be remedied 63 Jests how farre lawfull 236 Jewes ignominies 84 Immunity from Tythes why first granted to religious houses 188 Impeachment of Ecclesiasticall Jurisdiction 122. c. v. Law how to be releeved 255 Impediments of Matrimonie 83 Impossibilities abhorred by the Law 130 Impropriations why first granted to Religious Houses 188. whether by the authority of the Prince or Pope 290. in them some way tolerable 213. but not so in Lay men 214. yet hard to be remedied and why ib. Ina's Law concerning Tythes 138 Incestuous marriages 53 Indowments of Bishops wherin they at first did and now should consist 209 210 Inseudation of Tythes when it begun 164 165 Injunctions why so called 15. in what cases admitted 14 Pope Innocents restraint of priviledges granted to Religious Orders 200 Institution what 4. the necessity thereof 81 82 Instruments how to be made 56. Of Dowrie 58 Intelligence betwixt Kingdomes preserved by the Civile Law 273 Interpretation of Lawes belongs to the Judges but more principally to the King 257 258. not to bee often varied 256. want thereof prejudiciall to Ecclesiasticks 255 Investiture what 71 K. Johns unjust usurpation 112. John of Gants plot ib. S. Johns of Jerusalem that Order exempted from Tythes 200 Joyntnres not to be sold 58 Judges office 53. to perswade peace 78. not confound jurisdictions 158. Interpreters of the Statutes 255. their favour implored in that point 257. they have need of two salts ib. ought to be obeyed 58. Ecclesiasticall Judges falsely charged with the rejection of pleas in discharge
goods and lands but newes being after brought that the said Ralphe was dead beyond the Sea Francis the Brother of the said Ralphe spoyled the said Richard of the possession of all the goods and lands he had of the said Ralphe his Grandfather for that he did pretend the said Agatha his Niece and Mother of the said Richard was not borne of lawfull Matrimonie so that neitheir shee her selfe nor her sonne ought to succeed the Brother of the said Francis but that the inheritance thereof did belong unto himselfe whereupon the said Richard being thus spoyled by Francis his great uncle obtained Letters of restitution to the Bishop of London the B. of Worcester and the B. of Excester under this forme That before they entred into the principall cause which was this Whether the said Agatha were borne in lawfull Matrimonie or not they should restore the said Richard to his Grandfathers inheritance But the Bishop of Rome after understanding by the said Delegates that the plea of inheritance within this Realme did not belong unto the Church but unto the King recall'd that part of his rescript which concerned the restitution of the said Richard to his inheritance and gave order to the foresaid Bishops to proceed in the cause of legitimation willing them to inquire whether the said Agatha were borne of the said Aneline in the life time of her husband Allin when she dwelt and cohabited with him as with her husband or whether the said Ralphe Father of the said Agatha kept the said Aneline openly and publickly while the said Allin yet lived And if they found it to be so then they should pronounce her the said Agatha to bee a Bastard for that Anelina her Mother could not bee counted to bee a wife but a whore which defiling her husbands bed presumed to keepe company with an other her husband yet being alive But if they found it otherwise then they should pronounce her the said Agatha to be legitimate All which was done after the death of the said Ralph and Aneline as the Decretall it selfe shewes Neither was there any authoritie that opposed it selfe against that proceeding but held it to be good and lawfull though it were in terme of speciall Bastardie for then that which they now call speciall Bastardie was not borne Besides hereby it appeareth that the Ordinaries then did not onely proceed in cases of Bastardie incidently that is when a suit was before begun in the Common Law upon a triall of inheritance and that by writ from the Temporall Courts but even originally and that to prepare way unto inheritance or any other good that was like to accrue unto a man by succession or to avoid any inconvenience that might keepe him from promotion as may appeare by this practise following Priests in the beginning of the Raigne of Henry the 3. Constitut Otho innotuit de uxoratis à benefic 〈…〉 amovendis yet married secretly and their children were counted capable of all inheritance and other benefits that might grow unto them by lawfull marriage so that they were able to prove that their parents were lawfully married together by witnesses or instruments which many children did either upon hope of some preferment that by succession or otherwise was like to come unto them or to avoid some inconvenience that otherwise might light upon them for the want of that proofe some their parents yet living others their parents being dead and the proceedings before the Ordinary was holden good to all intents and purposes even in the Common Law for otherwise they would not have so frequented it for as yet there was made no positive Law against marriages of Priests and Ministers but the Church of Rome then plotting against it for that by that they pretended the cure of Soules was neglected and the substanc of the Church wasted and dissipated did by Otho then Legate à Latere to Gregory the ninth order by a Constitution that all such Ministers as vvere married should be expelled from their Benefices and their Wives and Children should be excluded from all such livelihood as the Fathers had got during the time of the Marriage either by themselves or by any middle person and that the same should become due unto the Church wherein they did reside and that their children frō that time forth should be disabled to injoy holy orders unlesse they were otherwise favourably dispensed withall which Constitution although it wrought to that effect to barre Priests for that time of their Marriage untill the light of the Gospell burst out and shewed that that doctrine was erronious yet to all other effects the proceeding in the case of Bastardie stood good as a thing due to be done by holy Church And therefore Linwod comming long after in his Catalogue that hee maketh of Ecclesiasticall causes reciteth Legitimation for one among the rest for that in those daies there was no dispute or practise to the contrarie And thus farre as concerning those things wherein the Ecclesiasticall Laws are hindered by the Temporall in their proceedings contrary to Law Statute and custome anciently observed which was the third part of my generall division Now it followeth that I shew wherein the Ecclesiasticall Law may be relieved and so both the Lawes know their owne bounds and not one to over-beare the other as they doe at this day to the great vexation of the subject and the intolerable confusion of them both which is the last part of this Treatise PART IV. CHAP. I. SECT 1. The meanes how to relieve the Civill Law that they are of two sorts that two things are required to the first meane and that the former of these is the right interpretation of Lawes and what that is THe meanes therefore to relieve the profession of the Civile Law are two The first is by the restoring of those things which have beene powerfully by the Common-Law taken from them and the bringing of them backe againe unto their old and wonted course The other is by allowing them the practise of such things as are grievances in the Common-wealth and fit to be reformed by some Court but yet are by no home-Law provided for The first of these stands in two things whereof the one is the right interpretation of the Lawes Statutes and customes which are written and devised in the behalfe of the Ecclesiasticall Law The other consisteth in the correcting and supplying of such Lawes and Statutes that are either superfluous or defective in the penning made in the behalfe as it is pretended of the Ecclesiasticall profession but yet by reason of the unperfect pe 〈…〉 g thereof are construed for the most part against them The right interpretation of the Law Statutes and Customes pertaining to the practise standeth as is pretended in the Judges mouth who notwithstanding hath that authoritie from the Soveraigne and that not to judge according as him best liketh but according as the right of the cause doth require The supply or
reforming of that which is over-plus or defective is in the Parliament so notwithstanding as that the Prince evermore breatheth life into that which is done Lawes Statutes or Customes are then best interpreted when as the very plaine and naturall sense of them is sought after and no forraine or strained exposition is mixt with them for that turneth justice into worme-wood and judgement into gall then that the Judge be not too subtill in his interpretation but follow such exposition of the Lawes as men of former age have used to make if they be not plainly absurd and erronious for oft shifting of interpretations breedeth great variance in mens states among such as have busie heads and much discrediteth the Law it selfe as though there were no certaintie in it with which although the fage Judges of our time cannot be charged for ought that I know yet I cannot tell how men much complaine that Lawes are farre otherwise construed in these daies than they were in former ages which as it is an ordinarie complaint in the Temporall Courts so it is not without cause much lamented at the Spirituall Court where the interpretation upon the three Statutes of Tythes made by King Henry the eight and Edward his sonne among other inconstancies of other Lawes hath such great varietie of sense and understanding in sundrie points thereof as that if the makers thereof were now alive and the first expositors thereof sate in place of Judgement againe the Statutes being measured by the interpretation they now make of them vvould hardly acknowledge them either to be the Statutes that they then made or the other did after expound and declare for every of these Statutes and the sense that was given of them vvas wholy for the benefit of the Church according to the tenor thereof but as they now receive explication they are not onely not beneficiall unto the Church but the greatest hinderance to the same that may be for the words are made to jarre with the sense and the sense vvith the vvords neither is there kept any right analogie in them and therefore the Reverend Judges are to be intreated because they challenge unto themselves the opening of the Statutes alone albeit peradventure that be yet subjudice where the Statute of Ecclesiasticall causes is to be interpreted that they would recall such exorbitant interpretations as have of late gone abroad upon these Statutes and restore them to their ancient sense and understanding No man can so cunningly cloake an interpretation but another will be as cunning as hee to spie it out and then the discredit will be the Lawes Lib. 1. Politâ—â— A small errour saith Aristotle in the beginning is a great one in the end and hee that goeth out of the way a little the longer he goeth on the further he is off from the place his voyage was to and therefore the speedier returne into the way againe is best The old Proverbe is He that goeth plainly goeth surely which may be best verified in the exposition of the Law if any where else for commonly men offend no where more dangerously than under the authoritie of the Law and therefore one saith very well that There are two salts required in a Judge the one of knowledge whereby hee may have skill to Judge uprightly the other of conscience whereby hee may be willing to judge according to that as his skill leadeth him unto both which being in the grave Judges it is not to be doubted but they will be easily induced to review their owne and their predecessours interpretations and reduce such exorbitant expositions as have scaped out thereof unto the right and naturall sense thereof which if perhaps they shall be loath to do for because it makes for them or for some other like partiall respect then humble supplication is to be made unto his Majestie that hee himselfe will be pleased to give the right sense of those things which are in controversie betweene both the Jurisdictions for his Majestie by communicating his authoritie to his Judge to expound his Lawes doth not thereby abdicate the same from himselfe but that hee may assume it againe unto him when and as often as hee pleaseth Whose interpretation in that is to be preferred before theirs first for that his interpretation is impartiall as hee that will not weaken his left side to make strong his right for so are these jurisdictions as they are referred unto his politique bodie but will afford them equall grace L. 1. num 8. C. de legibus L. 1. num 7. C. codâ— omnes populi ff de justit jure and favour that hee may have like use of them both either in forraigne or domesticall businesse as occasion shall serve then that his Judges interpretation maketh right onely to them betweene whom the cause is but his highnesse exposition is a Law unto all from which it is not lawfull for any subject to recede neither is it reverseable by any but by himselfe upon a second cogitation or him that hath like authoritie as himselfe hath and therefore most fit to be interposed betweene Jurisdiction and Jurisdiction that the one partie be not Judge against the other in his owne cause which is both absurd and dangerous And let this suffice for the right interpretation of Lawes and Statutes Now it followeth that I speake something of the supplies that may be made to the defects that are in the same SECT 2. The second thing required to the first correcting of superstition and supplying of defective Statutes IT is not to be doubted but it was the full minde and intent of the Lawmakers which made those three Statutes to infeoffe the Ecclesiasticall Courts in the inheritance of all those causes that are comprised in those Statutes save those that are by speciall name exempted and that they did by the said Statute as it were deliver unto them full and quiet possession of the same for even so sundrie branches of the said Statute do shew as I have elsewhere made it manifest and that there hath growne question upon many points thereof and that the professours of the Ecclesiasticall Law have beene interupted in the quiet possession thereof commeth of the unperfect penning of the same and not of any just title or claime that may be made by the professours of the other Law thereunto but this is a thing not onely proper to these three Statutes but also common to all other Statutes which are writ of any Ecclesiasticall causes within this Land which notwithstanding may be remedied if it seeme good unto his sacred Majestie and the rest of the wisedome of the land assembled together at any time for the making of wholsome Lawes and the reforming of the same by supply of a few words in some places or periods that are defective and yet keeping the true meaning and sense of the same As for example in the Statute of the two and thirtieth of Henry the eight in the §