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
if the usage and custome of the payment it selfe had not beene subject to the Ecclesiasticall cognisance for in vaine shall a man sue for that the Law allowes him no course to come by if it be denyed in the speciallest L. Finals ff de officio ejus cut mandata est turisd l. 3. ff de penu legata point belonging to that suite for this is undoubted Law where ever there is an authority or Iurisdiction granted there are in like manner granted all those things without which that authority or Jurisdiction cannot bee perfected or performed SECT 3. That customes of payment of tythes are triable onely at the Ecclesiasticall courts ANd therefore it is without question as Tythes by the said Statutes are onely recoverable by the Ecclesiasticall Law and not elsewhere so also the custome whereby they are paid is only triable at the Ecclesiasticall Law Otherwise this inconvenience will follow thereupon which in all other Lawes beside this of ours is a great absurditie Bartol l. nulli C. de iudicijs Glos. c. significaverunt de iudicijs that the connexitie of the cause which the Civilians call Continentiam causarum will be dismembred and disjoyned which by all good pollicie together with all her parts emergent or annexed ought to be handled discussed and determined before one and the selfe same Judge one I meane not in number but one in profession for otherwise I should by this assertion barre Appeales which is not mine intent Which course if it were held here in England causes should not be drawn peece-meale in such sort as Medea tore her brother limme-meale and one part of it carried to this Cicero pro Murena Court another to that like unto the rent lims of the childe that were cast here and there by Medea thereby to hinder her father from pursuing her but all should be ended in one and the selfe same Court which would be a great ease to the subject who now to his intolerable vexation and excessiue charges is compelled to runne from Court to Court and to gather up as it were one lim of his cause here and another there and yet happily in the end cannot make a whole and perfect body of it Beside it is a mighty disorder in a Common-wealth thus to jumble one Jurisdiction with another the very confusion as well of the one Law as the other for as Kingdomes are preserved by knowing their bounds and keeping their limits so also Jurisdictions are maintained and upheld by containing themselves within the lists or banks of their authoritie Further unles they will grant that there is an Ecclesiasticall custome as there is a Secular Custome and that the one is as well to be tried in the one Court as the other is in the other they will make their own Doctrine in the before rehearsed Prohibition voyde where they will have it certain that there is a Secular Custome if there be a Secular Custome then doubtlesse there is also an Ecclesiasticall or Spirituall custome for the word Secular is not put in that Glo 〈…〉 Clem. unica in verbo aternaliter de summa tâ—â—nit fide catholica place absolutely but relatively and the nature of Relatives is one to put another and one to remove another but in the Secular customes they barre the Civilian therefore they grant him the spirituall for of contrary things there are contrary reasons and contrary effects and what that which is proposed doth worke in that which is propounded L. Fin. §. plus autem de legatis 3. â—bâ— Angel the same againe that which is opposed doth worke in that which is opponed by which Rule as Temporall Lawyers are to deale in Temporall Customes and spirituall men are not to intermeddle therein so also Ecclesiasticall Lawyers are to deale in Ecclesiasticall causes and Temporall Lawyers are not to busie themselves thereabout And that this was the intent of the King when hee first received the Church into his protection with all the priviledges thereof may appeare hereby that having united both the Jurisdictions in his owne person he did not jumble them both together as now they are but kept them distinct one from the other not onely in authorising the Ecclesiasticall Courts that were before but also in using the very words and phrases that the Jurisdictionaries Ecclesiasticall did use every where in their writings even these words whereupon men now take hold to frame Prohibitions viz. according to the laudable customes and usages of the parish and places where such Tythes grow which were the words of Innocent the third in the Decretals upon the title of Tythe long before these Statutes were made or any other Statutes concerning the true payment of Tythes and Linwod in the same title of Tythes often useth the very selfe same words and phrases that the other doth so that if these words made no Prohibition before the Statute as I thinke it cannot well be shewed to the contrary neither ought they to doe it now since the Statute for that they are spoken still in the Church businesse and not in a temporall matter whose government although it be under one and the selfe same Prince that the temporall state is yet is it distinct from the same as ever it hath beene since there hath beene any setled forme of Church-government in any 1 Cor. 5. common-wealth as may appeare both by the example of S. Paul which never goeth to any temporall power to punish the incestuous person although there were sundry lawes then both in Greeke and Latin written of these matters but doth it by the spirituall sword alone and also by that that in matters of jarre for worldly causes betweene brother and brother hee forbids such as were new Christians to goe to 1 Cor. 6. law before Infidels but adviseth them rather to appoint Judges among themselves to decide such controversies which albeit in those dayes was meant as well of lay Christians as of the Ministers of the Gospell for that the number of them then was small and the causes of suit they had one against an other were not many and might easily be ended by one and the selfe same consistorie yet when the number of the Christians increased and the Church got some rest from persecution the Jurisdiction was againe divided and as there were secular Courts appointed by Princes wherein temporall mens causes and lay businesses were heard so there were also by the same authoritie erected Ecclesiasticall Courts and Bishops audiences wherein either Ecclesiasticall mens causes alone or such as they had against C. de Episcopali audienta â—ertia Lay men or Lay men against them were treated of and determined So that this was no new devise of Henry the eigth or Edward his Sonne that when they tooke upon them the supremacie over the Church as they had before over the common-wealth they did not mishmash both the States together and made one confused heape
us in the Ecclesiasticall Courts is that I find Glanvill Glanvill lib. 12. cap. 15 de Legibus Angliae who himselfe lived under Henry the second and was Lord chiefe Justice of England in his dayes sort to the Ecclesiasticall Courts the plea of Tenements where the suit is betweene two Clerkes or betweene a Clerke and a Lay man and the plea is De libera eleemosina feodi Ecclesiastici non petitur inde recognitio whether the frank fee be Lay or Ecclesiasticall where also is farther added that if it be found Idem lib. 13. cap. 25. by the verdict of legall and sufficient men that it is of Ecclesiasticall fee it shall not bee after drawne to Lay fee no though it be held of the Church by services thereunto due and accustomed secondly whereas land is demaunded in Idem lib. 7. cap. 18. marriage by the husband or the wife or their heire and the demaund be against the giver or his heire then it shall be at the choice of the demander whether he will sue for the same in the court Christian or in the secular Court For saith he it pertaineth unto the Ecclesiasticall Courts to hold plea of dowries which he calleth Maritagia if so be the plaintife so make choice of those Courts for the mutuall affiance that is there made betweene the man and the wife for marriage to be had between them and there is a dowry promised unto the man by the womans friends neither shall this plea bee carried unto the temporall Courts no though the lands be of Lay fee so that it be certaine the suit is for a Dowry but if the suit be against a stranger it is otherwise Againe the Kings prohibition for bidding the Clergie the dealing in many things which are of Lay fee forbids them Anno 24. Ed. 1. no one thing that is of Ecclesiasticall fee and to shew the Princes meaning precisely therein that it was not his intent by that Prohibition to restrain the Ecclesiasticall Judges for proceeding in matters of Ecclesiasticall fee hee sets downe in very tearmes these words Recognisances touching Lay fee as though he would hereby signifie to all men that he would not touch matters of Ecclesiasticall fee which did then wholly and properly appertaine to the triall of the Christian Court as hath beene before vouched out of Glanvill who for the place he then held may be thought to have knowne the Lawes of England as then they stood and the right interpretation thereof as well as any man then or now living And yet because there were some things of Lay fee which the Clergie then had cognisance of and as yet have in some measure as causes and matters of mony chattels and debts rising out of Testaments or Matrimonie because hee would have whatsoever belonged to the Clergy to be undoubted excepteth them from those things which belong to the Crown and dignity and leaveth them to the ordering of the Christian Courts which is nothing else but an affirmance of that which Glanvill and the rest of the ancient English Lawyers Bracton and Britton said before Adde hereunto the provinciall Constitution Aeterna de poenis made in the dayes of Henry the third which plainly shewes that in those dayes all personall suits betweene either Clerk Clerk or between Lay-men complaynants Clerkes defendants for ever the Plaintife must follow the Court of the Defendant which to the Ecclesiasticall men then was the Ecclesiasticall Court were tryed by the Spirituall Law not by the Temporall Law which practise for that it doth accord with the judgement of those ancient Lawyers that have beene before cited and with the Prohibition it selfe which there restraineth onely calling of Lay men to make recognisances of matters of Lay see it may be a great argument that these things were of the Ecclesiasticall right in those dayes from which I see not how the Ecclesiasticall Courts are falne for I see neither Law nor Statute to the contrary unlesse perhaps they will say the Statute of the 25. of Henry 8. cap. 19. tooke the same away as being hurtfull to the Kings Prerogative royall and repugnant 25. H. 8. cap. 19. to the Lawes Statutes Customes of this Realme which whether they be or be not taken away by the stroake of that Statute I leave it to men of better experience in these matters than my selfe to judge But yet this I finde by experience to be true That where there are two divers jurisdictions in one Common-wealth unlesse they be carefully bounded by the Prince an equall respect carried to both of them so farre as their places and the necessary use of them in the Common-wealth requires as the advancement of the one increaseth so the practise of the other decreaseth specially if one have got the countenance of the State more than the other which is the onely cause at this day of the overflowing of the one and the ebbing of the other but it is in his Sacred Majestie to redresse it not by taking any thing from that profession that is theirs but restoring to this profession that which is their owne but hereof 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 SECT 5. That some titles of the Canon Law are granted to be of absolute use with us and that of some other there is question made FOr the rest of the matters that belong to the tryall of the Ecclesiasticall Courts some are acknowledged to be absolutely in use some other are challenged to be but in a certaine measure in use In absolute use are those which never had any opposition against them which almost are those alone which belong to the Bishops degree or order for all things which come within the compasse of the Ecclesiasticall Law are either belonging to the Bishops degree or his jurisdiction To his degree or order belong the ordering of Ministers Deacons the confirmation of Children the dedication of Churches and Churchyards and such like none of which have beene challenged at any time to belong to any other Law The second sort is of them that belong to the Bishops jurisdiction which is partly voluntary partly litigious Voluntarie is when those with whom the dealing is stand not against it but litigious it is when it is oppugned by the one part or the other of this latter sort many things in sundry ages have beene called in question but yet rescued and recovered againe by the wise and grave Judges themselves who have found the challenge of them to be unjust But what doth belong to either of them in private or what causes doe appertaine to the whole Jurisdiction in generall because they have beene already particularly set downe by that famous man of worthy memory Doctor Cosin in his Cosin in his Apologie part 1. c. 2. learned Apologie for certaine proceedings in Ecclesiasticall Courts I will not make a new catalogue of them but send the Reader for the knowledge thereof unto his Booke but yet in my
passage will I note which of them have beene most chiefly oppugned and as occasion shall fall out speake of them PART III. CHAP. I. SECT 1. How the Jurisdiction which is of Civile and Ecclesiasticall cognisance is impeached by the Common Law of this Land and first of the impeachment thereof by the Statute of Praemunire facias ANd thus much as concerning those parts of the Ecclesiasticall Law which are here in use with us Now it followeth to shew wherby the exercise of that Jurisdiction which is granted to bee of the Civile and Ecclesiasticall cognisance is defeated and impeached by the Common Law of this Land which is the third part of this Division The impeachment therefore is by one of these meanes by Praemunire by Prohibition by Injunction by Supersedeas by Indicavit or Quare impedit but because the foure last are nothing so frequent nor so harmfull as the others and that this Booke would grow into a huge volume if I should prosecute them all I will onely treat of the two first and put over the rest unto some better opportunitie A Praemunire therefore is a writ awarded out of the Kings What is a Praemunire Bench against one who hath procured out any Bull or like proces of the Pope from Rome or else-where for any Ecclesiasticall place or preferment within this Realme or doth sue in any forreine Ecclesiasticall Court to defeat or impeach any Judgement given in the Kings Court whereby the body of the offender is to bee imprisoned during the Kings pleasure his goods forfeited and his lands seized into the Kings hand so long as the offender liveth This writ was much in use during the time the Bishop of Rome's authoritie was in credit in this land and very necessarie it was it should be so for being then two like principall authorities acknowledged within this Land the Spirituall in the Pope and the Temporall in the King the Spirituall 25. Ed. 2. 27. Ed. 3 c. 1. 38 Ed. 3. c 1. 2. 7. Rich. 2. c. 12. 13. Rich 2. c. 2. 2. H. 4 cap. 3. grew on so fast on the Temporall that it was to be feared had not * Neverthelesse even out of these Statutes have our Professours of the Common Law wrought many dangers to the Jurisdiction Ecclesiasticall threatning the punishment conteined in the Statute Ann. 27. Edw. 3. 38. ejusdem almost to every thing that the Court Christian dealeth in pretending all things dealt with in those Courts to be the disherison of the Crowne from the which and none other fountaine all Ecclesiasticall Jurisdiction is now derived whereas in trueth Sir Thomas Smith saith very rightly and charitably that the uniting of the Supremacie Ecclesiasticall and Temporall in the King utterly voideth the use of all those Statutes Nam cessante ratione cessat lex and whatsoever is now wrought or threatned against the Jurisdiction Ecclesiasticall is but in emulation of one Court to an other and by consequent a derogation of that authority from which all Jurisdiction is now derived and the maintenance whereof was by those Princes especially purposed D. Cowel in the Interpreter these Statutes beene provided to restraine the Popes enterprises the spirituall Jurisdiction had devoured up the temporall as the temporall now on the contrary side hath almost swallowed up the spirituall But since the forreine authoritie in spirituall matters is abolished and either Jurisdiction is agnised to be setled wholly and onely in the Prince of this land sundry wise mens opinion is there can lye no Praemunire by those Statutes at this day against any man exercising any subordinate Jurisdiction under the King whether the same bee in the Kings name or in his name who hath the same immediatly from the King for that now all Jurisdiction whether it be Temporall or Ecclesiasticall is the Kings and such Ecclesiasticall Lawes as now are in force are called the Kings Ecclesiasticall Lawes and the Kings Ecclesiasticall Courts for that the King cannot have in himselfe a contrarietie of Jurisdiction fighting one against the other as it was in the case betweene himselfe and the Pope although hee may have diversitie of Jurisdiction within himselfe which for order sake and for avoyding of confusion in government hee may restraine to certaine severall kindes of causes and inflict punishment upon those that shall goe beyond the bounds or limits that are prescribed them but to take them as enimies or underminers of his state he cannot for the question here is not who is head of the cause or Jurisdiction in controversie but who is to hold plea thereof or exercise the Jurisdiction under that head the Ecclesiasticall or Temporall Judge Neither is that to move any man that the Statutes made in former times against such Provisors which vexed the King and people of this land with such unjust suits doe not only provide against such Proces as came from Rome but against all others that came else-where being like conditioned as they for that it was not the meaning of those Statutes or any of them therby to taxe the Bishops Courts or any Consistory within this land for that none of them ever used such malepert sawcinesse against the King as to call the Judgements of his Courts into question although they went farre in strayning upon those things and causes which were held to be of the Kings temporall cognisance as may appeare by the Kings Prohibition thereon framed And beside the Archbishops Bishops and other prelates of this Land in the greatest heat of all this businesse being then present in the Parliament with the rest of the Nobility disavowed the Popes insolencie toward the King in this behalfe and assured him they would and ought to stand with his Majestie against the Pope in these and all other cases touching his Crowne and Regalitie as they were bound by their allegeance so that they being not guilty of these enterprises against the King but in as great a measure troubled in their owne jurisdiction by the Pope as the King himselfe was in the right of his Crowne as may appeare out of the course of the said Statutes The word Elsewhere can in no right sence be understood of them or in their Consistories although Et le stat est in Curia Romana vel alibi le quel alibi est a entender en la Court l'Euesque issint que si hōme soit sue la pur chose que appent al Commen ley il aura Praemunire Fitzherb Nat. Bre. Tit. Praemunire facias some of late time thinking all is good service to the Realme that is done for the advancement of the Common Law and depressing of the Civile Law have so interpreted it but without ground or warrant of the Statutes themselves who wholly make provision against forreine authority and speake no word of domesticall proceedings But the same word Elsewhere is to be meant and conceived of the places of remove the Popes used in those dayes being
Prohibitions of fact or of men are both infinite and odious for that there is well nigh no matter either Civile or Ecclesiasticall be it never so cleere or absolute but they clog and incumber it with some Prohibition and the matter they containe is for the most part absurd and frivolous as shall first appeare in marine causes and after in Ecclesiasticall matters SECT 3. Conoerning the common Lawyers action of Trover and what is meant in the Law by a Fiction to shew how the Civile Jurisdiction is impeached in matters of Admiraltie FOr Marine causes it is well knowne that all such bargaines and contracts or as it were contracts as are made by any persons either in any forraine countrey or any haven or creeke of the Sea or any shore thereof as farre as the greatest winter wave doth runne out or upon any great river to the first bridge next to the Sea for any merchandize ship tackle or other negotiation belonging to the Sea or to any merchandize brought from beyond the Sea is and ought to be of the admirall cognisance and so evermore hath beene since the Court of the Admiraltie was first erected and yet the common Lawyers to defeate the Civile Law of the triall thereof have devised sundry actions and among the rest an action of Trover whereby they faine that a ship arrived in Cheapfide or some other like place within the Citie and there the Plaintife and Defendant meeting together bargained upon some merchandize or other like sea-faring matter by which fiction they pretend the bargaine now is to be tryed in the Common Law and not by the Civile Law as being done in the body of a Countie and not upon the maine Sea or any other place subject to the Admirall Jurisdiction But that this fiction or any other like qualitied to this should have any such force as to worke any effect in Law I will shew first by the definition of a fiction then by those things that are necessarily attendant thereon A fiction therfore is defined by Bartol whom also the rest L◠si is qui pro emptore §. 3. ff de usucapionib ibi Bartol of the Doctors doe follow to be an assumption of the Law upon an untruth for a truth in a certaine thing possible to be done and yet not done upon which fiction the Doctors hold there waite two things the one is Equitie the other Possibility For First unlesse there be cause why that which is not should be fained to be and that which is should bee accounted not to be and that which is done in one sort or at one time or in one place should be imagined to be done in an other sort at an other time and in an other place there is no reason a fiction should be admitted for the Law alloweth no man to come to extraordinary remedies but where ordinarie remedies faile and therefore if that which is in controversie may bee obtained by any other meanes than by a fiction a fiction is not to be afforded but if ordinary meanes cannot be had then fictions may be entertained L. in causa ff de minorib to supply the defect of the ordinary meanes that thereby although the truth be otherwise yet the effect of the Law may be all one So then the Law faineth an infant not yet borne to bee L. qui in utero penult de statu hominis ff L. 1. §. fi filius ff de suis et legit l. 2 l. 3. l. 4. C. eod l. Gallus 29. §. benè et §. videndum ff de liberis et posthumis § cùm filius Instit de haered an ante nato L. veris est §. ult ff pro socio L. actione §. publicatione ff eod L. absentem ff de verborum significat L lege Cornel. ff de testamento borne for his benefit for that happely without that fiction the poore infant should be remedilesse of his Filiall Portion Legacie or other right in conscience due unto him so Nephewes and Neeces succeed together with their Uncles and Aunts in their Grandfathers and Grandmothers goods for such portion as should have come to their parents if they had lived for that the Law presumeth them to represent the person of their parents so he that is dead is fained to bee alive to many constructions in Law specially if many of his equals in age be alive at the time that he is fained to bee alive so he that is alive and is in captivity for the upholding of his Will which he made in liberty is fained to bee dead the houre before hee became captive so he that is obstinate and will not appeare in Judgement being lawfully called thereto is fained to bee present that neither himself should take benefit out of his obstinacie neither his adversary hurt by his absence and injurie Infinite more examples might be brought of this sort but it would be too long to run through them all and this shall suffice to have shewed that the Law approveth fictions but where there is equitie for it and the Law it selfe otherwise cannot have L Gallus § fi ejus ff de liberis posthumis l. si pater § si cum ff de adopt Horat. de Arte poetica her effect And as the Law cannot proceed to a fiction without equity so neither can it faine any thing that is impossible for Art evermore followeth Nature and therefore if a man would faine disproportionable things such as the Painter did in Horace who made Boares wallow in the waves of the Sea and Dolphins wander in the woods these fictions in no sence can be admitted for that they are such as neither Nature nor Reason can brooke In like sort if a man would faine one to live who were dead two hundred yeares since Bartol l fi is qui pro emptore num 21. 22. 23. sequen tib so that it were not possible that hee or any of his equals should live at that age this would not hold in Law for that it is above the age that the Law doth presume any man may live by Nature although the Law doth presume such as dye in warre for defence of their countrey for the better encouragement of those that are alive to venture themselves in like service for the common-wealth to live for ever because their fame doth flourish for ever and upon like reason the Law will not suffer any person to adopt an other for his childe who is either elder or equall in age unto himselfe or is not so farre under his yeares as by course of Nature hee might be his naturall childe indeed so much the Law detesteth impossibilities that it will not suffer a man to faine that which in common Sence and Nature might not be true indeed Now if these things be true as in all reason and shew by former precedents they appeare to be true I would gladly see how actions of Trover whereby the Common Lawyers
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
wherefore neere the beginning of the same Statute the Statute ordering that all persons of this Realme and other of the Kings Dominions shall truly and effectually set out and pay all and singular Tythes according to the lawfull customes and usages of the Parishes where they grow and become due because there is a question made where these customes and usages shall be tryed in the Ecclesiasticall or Temporall Law if these or the like words had beene added to the same to be proved before an Ecclesiasticall Judge after the forme of the Ecclesiasticall Law and not elsewhere the whole matter had beene cleare for that point And whereas againe in the end of the same Statute there be some good words tending to the appropriating of these matters of Tythes and obligations and other Ecclesiasticall duties to the Ecclesiasticall Court and that the remedie for them shall be had in the Spirituall Court according to the ordinance of the first part of that Act and not otherwise yet because there is no penaltie to that act busie men easilie make a breach thereinto for that Lawes without penalties for the most part are weake of no force if therefore this or the like supply were made if any man sue for these or like duties in any other Court than in the Kings Ecclesiasticall court the parties so suing to forfeit the treble value of that which he sued for to be recovered in the Kings Ecclesiasticall Court where it ought to have bin commenced by the way of Libells or Articles the one halfe thereof shall be to the King the other to the partie grieved many of these suits would easily be met withall Neither is it to the purpose that this is matter of mony and Lay-Fee that should be in this sort forfeited and therefore is not Regularly to be sued for in the Ecclesiasticall Court for seeing the cause is Ecclesiasticall upon which the matter of forfeiture ariseth it may be very well allowed Ne continentiae causarum dividantur and for that ordinarily every jurisdiction that is wronged may defend it selfe with a penaltie beside we do by the like right in the Ecclesiasticall courts recover expenses of suits in Law fees of Advocates Proctors mony for redemption of sin so that it will be no strange matter to have this kinde of suit allowed unto the Ecclesiasticall Court Further whereas there are in the Statute of Edward the sixt chapter 13. in the beginning almost of the said Statute two clauses under paine of forfeiture one of treble value for Tythes carried away before they were divided set out or agreed for The other of double value where the Tythes were hurt or impared by the partie stopping or letting him that had interest thereunto to carrie them away or by withdrawing or carrying them away himselfe the same is ordered by a clause in the second branch thereof reaching unto them both for that a clause put in the end of two sentences stretcheth it selfe indifferently unto them both if there be no more reason it should belong to the one than the other as there is not in this case for if it were not so the first penalty had no order set down how it might be recovered that the same shall be recovered according to the Kings Ecclesiasticall Law to which if there were added this word only and not elsewhere or otherwise and they martialled in their right places there were nothing more sure or strong Moreover whereas in the first proviso of that Statute it is decreed that none shall be compelled to pay any manner of Tythes for any Hereditaments which by the Lawes or Statutes of the Realme or by any Priviledge Prescription or Composition Reall are not chargeable therewithall whereby it is doubtfull in what Court the said Exemptions are to be alledged if there were inserted these words or other of like nature the said Lawes Statutes Priviledges Prescriptions or Compositions reall to be alledged argued traversed and determined before the Ecclesiasticall Judge onely according to the forme of the Ecclesiasticall Lawes and not else-where upon like forfeiture of treble dammages as is aforesaid it would make this poynt sure unto the Ecclesiasticall Law Over and besides this whereas in the same Statute there is a discharge allowed to barren heath and waste ground in some for not payment of tythes in other for the manner of payment of them for the space of 7. yeares after the improving and converting of them into arrable ground or meadow it would make the matter plaine which Law should have the pronouncing thereupon if there were added these or the like words So the same ground be proved in forme of Law in the Ecclesiasticall Court to be barren heath and waste Lastly whereas in the said Statute among other limitations of causes wherein the Ecclesiasticall Judge is not to deale by vertue of the said Statute there is one in these words neere the end of the said Statute Ne in any matter whereof the Kings Court of right ought to have Jurisdiction which limitation is so vage large that thereout there may be forged as many divers kindes of Prohibitions as the Poets sained Vulcan ever made thunderbolts for Jupiter And therefore it were very well and consonant to the good meaning of the said Statute that this vagenesse were restrained and reduced to a more certainty of matter by these or like words By any ancient Law or Statute of this Land And so farre as concerning the imperfection of the said three Statutes and how they may be amended and made reducible to the first meaning and intent of the makers thereof by some small supply alteration or change of words the sense and ground-worke standing ever the same according to the wisdome of his Majestic and his great Councell assembled in Parliament CHAP. II. SECT 1. The second Meane to releeve the Civile Law which is by allowing it the practice of such things as are greevances in the Common-wealth and fit to be reformed by some Court but yet are not otherwise provided for And first of the greevances which concerne Parents and Children and how they may be releeved NOw it followeth that I shew wherein the practice of the Ecclesiasticall Law under which I comprise the Civile Law so farre as it is in use amongstus may bee increased to the benefite of the subject and the enlargement of the profession without the prejudice of the Common Law And that I may first begin with the piety of Fathers towards their Children children againe towards their Parents which is the beginning of all Common-wealths for even Nature it selfe hath taught that not onely in the most brutish people that bee but also setled it in the savagest kinde of beasts that are upon the earth the one to cherish that which it selfe hath brought out and the other to love againe that which hath brought it out and yet what Law is here in England which provideth for the one or the other unlesse
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
and that no poast-horse or carriage be taken but for publick use of poast-letters to whom they are to be granted and for what time Of the Apparitors Sergeants Sumners or Baylifes Of sundry great officers and of their Scribes and Registers and of their trials Of the fees of Advocates and of the extortion of Apparitors And this is the summe of those things which are specially conteined in the Code besides other things which it hath common with the Digest the knowledge whereof at this day is not so necessary for the Civilian who in this age hath little use thereof as it is expedient for Councellours of State and such as are called to place in Court who may there-out marke many things to direct them in their place as the variety of those things which are herein handled doth very well shew CHAP. III. SECT 1. What the Authenticks are and why they are so called THe third Volume of the Law is called the Authenticks of the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 either because they have authority in themselves as proceeding from the Emperors owne mouth or that they are originals to other writings that are transcribed out of them The Authenticks therefore are a Volume of new Constitutions set out by Justinian the Emperor after the Code and brought into the body of the Law under one Booke In the Authenticks is not that order observed in the disposition of the Lawes as is either in the Digest or the Code but as occasion was offered of any doubt wherein the Princes resolution was necessary to every thing so it is set downe without any other methode or forme The whole Volume is divided into * In the Latine translation for the Greeke text acknowledgeth not this division into Collations 9. Collations Constitutions or Sections and they again into 168. Novels which also are distributed into certaine Chapters They were called †quòd novissimè promulgatae sint post Cod. Justin. Repetitae Praeâ—ectionis and therefore the Greeke calleth them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 so likewise the constitutions of the Emperours which were newly published after the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 were called the Novels of Leo Nirephorus Michael c. Novels because they were new Lawes compared to the Lawes of the Digest or the Code Of these Constitutions some were generall and did concerne all who had like cause of doubt some other were private and did concerne only the place or persons they were writ for which I will overpasse with silence SECT 2. The summe of the first Collation OF the generall the first title and first Novell of the first Collation is that Heires Feoffees Executors Administrators and their Successors shall fulfill the Will of the deceased and within one yeare after his decease shall pay his Legacies and Bequests and if they be once sued for it they shall forthwith pay that which is due upon the Will deducting onely a fourth part which is due unto the heire by the Law Falcidia or else to lose such bequests as themselves have in the Will That it shall not be lawfull for a Widow comming to a second marriage after her first husband is dead to sequester one of her children from the rest upon whom shee will bestow such things as her first husband gave her before marriage but that the benefit thereof shall be common to them all Neither that shee convey it over to her second husband or his children and so defraud her first husbands children And that a man in like sort surviving his wife shall doe the like toward his first wives children as concerning such Dowry as the first wife brought to her husband Of Suerties and Warranties that the Creditors shall first sue their Debtors and take execution against their goods and finding them not payable shall then take their remedy against the Suerties Of Monkes that they build no Monasteries but with the leave of the Bishop who is there with prayer to * lay But the Emperour maketh no mention of this Rite for thus saith the Law None shall presume to erect a Church or Monasterie till the Bishop of the place beloved of God having beene made acquainted with it shall come and lift up his hands to heaven and consecrate the place to God by prayer 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and there erect the Symbole of our Salvation wee meane the venerable and truely pretious Rood In Auth. De Monach. § Illudigitur Coll. 1. See also Novell 123. 131. And the like is commanded in the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Yet that this Ceremony of laying the first stone hath beene of ancient use in the Greeke Church may be observed out of their Euchologue where it is said that the Bishop after some other Rites performed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 standing in the place where the holy Altar shall be set saith a prayer which being ended he giveth the Ite Missaest and then taketh up one of the stones and having cut a Crosse upon it himselfe with his owne hands layeth it upon the Ground-worke then hee pronounceth the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. and so the work-men begin the building That which followeth in the Euchologue discovereth the forme and manner of setting up the Crucifixe which the Law calleth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Reader may see 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of the Euchologue The like Ceremonies are used in the Latine Church at this day as may bee seene in their Pontificale page the 281. of that which Clement the 8. set out at Rome in the yeare 1565. the first stone And that the Bishop shall appoint such an Abbot over the Monkes as in vertue and in merit excels the rest And besides of their habit conversation professions and change of life and who is to succeed them in their goods and inheritance Of Bishops and Clerks that is that Bishops and Clerks be of good fame of competent learning and age and that they be ordeined and promoted without Simonie or briberie or the injury of the present Incumbent And that there be a set number of Clerkes in every Church lest the Church and Parishioners thereby be over-charged SECT 3. What is conteined in the second Collation THe second Collation treateth of the Churches State that the lands of the Church be neither sold aliened nor changed away but upon necessity or that they be let to farme for a time or upon other just cause no not with the Prince himselfe unlesse the change be as good or better than that which hee receiveth from the Church and if any man presume contrary to this forme to change with the Church hee shall lose both the thing he changed and the thing he would have changed for it and both of them shall remaine in the right of the Church And that no man give or change a barren peece of ground with the Church That Judges and Rulers of Provinces bee made without gifts of their office power authoritie
holy place Further it provideth that the name of the Prince for the time being be put in all instruments and the day and yeare when the instrument was made That the Oath of the deceased as concerning the quantitie of his goods so farre as it toucheth the division of the same among his children be holden for good but that it be in no sort prejudiciall to the creditors Of women tumblers and such other of like sort which with the feats of their body maintaine themselves that no oath or suertie be taken of them that will not leave that kind of life since such oath is against good manners and is of no value in Law That such gifts as are given by private men to their Prince need no record but are good without enrolling of them and in like sort such things as are given by the Princes to private men That no person thing or gold of an other man be arested for an other mans debt which they now call reprisals and that he which is hurt by such reprisals shall recover the foure double of the damages that he hath suffered thereby and that one man be not beaten or stricken for another That he that cals a man into law out of his Territorie or Province where he dwelleth shall enter caution if he obteine not in the sute against him hee shall pay him so much as the Judge of the Court shall condemne him in And that he who hath given his oath in Judgement shall pay the whole costs of the sute but after shall be admitted to prosecute the same if he will so that he put in suerties to performe it That such women as are unindowed shall have the fourth part of their husbands substance after his death and in like sort the man in the womans if the man or woman that surviveth be poore That Churches or Religious persons may change grounds one with an other for that one priviledged persons right ceaseth against an other that is in like sort priviledged That such changes of Mannors Lands Tenements and Hereditaments as are made by Church-men to the Prince be not fained matters and so by the Prince come to other mens hands who have set on the Prince to make this change and that the change be made to the Princes house onely and if the Prince after convey or confer the same upon any private man it shall be lawfull for the Church to reenter upon the same again and to repossesse it as in her former right That in greater Churches Clerks may pay something for their first admittance but in lesser Churches it is not lawfull That such as build found or endow Churches which must goe before the rest doe the same by the authoritie of the Bishop and that such as are called Patrons may present their Clerks unto the Bishop but that they cannot make or ordaine Clerks therein themselves That the sacred mysteries or ministeries be not done in private houses but bee celebrated in publick places lest thereby things be done contrary to the Catholick and Apostolick faith unlesse they call to the celebrating of the same such Clerks of whose faith conformitie there is no doubt made or those who are deputed thereto by the good will of the Bishop But places to pray in every man may have in his owne house if any thing be done to the contrary the house wherein these things are done shall be confiscated and themselves shall be punished at the discretion of the Prince That neither such as be dead nor the Corse or Funerall of them be injured by the creditors but that they be buried in peace That womens Joyntures be not sold or made away no not even with their owne consent In what place number forme maner and order the Princes Councell is to sit and come together That hee that is convented in judgement if hee wilfully absent himselfe may be condemned after issue is joyned That no man build a Chappell or Oratorie in his house without the leave of the Bishop and before hee consecrate the place by prayer and set up the Crosse there and make Procession in the place and that before he build it he allot out lands necessarie for the maintenance of the same and those that shall attend on Gods service in the place and that Bishops be not non-residents in their Churches That all obey the Princes Judges whether the cause bee Civile or Criminall they judge in and that the causes be examined before them without respect of persons and in what sort the Proces is to be framed against such as be present and how against those that be absent SECT 7. What is the matter of the sixth Collation THe sixth Collation sheweth by what meanes children illegitimate may be made legitimate that is either by the Princes dispensation or by the fathers Testament or by making instruments of marriage betweene the Mother and Father of the children so that the Mother die not before the perfecting of them or that shee live riotousâ—y with other men and so make her selfe unworthy to be a wife That Noble personages marrie not without instruments of Dowrie and such other solemnities as are usuall in this behalfe that is that they professe the same before the Bishop or minister of the place and three or foure witnesses at the least and that a remembrance thereof be left in writing and kept with the Monuments of the Church but that it shall not be needfull for meaner persons to observe the former solemnities That such as were indebted to the Testator or they to whom the Testator was indebted bee not left Tutors or Guardians to their children that if any such be appointed a Tutor a Curator be joyned to him to have an oversight of his dealing that Tutors or Curators are not bound by Law to let out the Minors money but if they doe the interest shall be the Minors and the Tutor shall have every year two moneths to finde out sufficient men to whom he may let the money out to hyer for that it is let out at his perill that if the Minors state be great so that there will be a yearely profit above his finding the Tutor shall lay up the residue for a stock against he comes to age or buy land therewith if he can finde out a good bargaine and a sure title but if the childes portion be small so that it will not find him then the Tutor or Curatot shall dispose of the Minors state as hee would dispose of his owne to which also hee is bound by oath How such instruments as are inrolled before Judges concerning matters of borrowing and lending and such like may have credit how men may safely bargain either with writing or without writing if themselves be ignorant men and of the comparison of Letters and what credit there is to be given to an instrument when the writings and witnesses doe varie among themselves Of unchaste people and such as riot against nature whose punishment
is death Of such as despitefully on every light trifle sweare by God and * The crime of Blasphemy was so odious to the Emperour that he thought God would never suffer a blasphemer to goe unpunished for sins of this nature saith he the world is visited with famines plagues and pestilences therefore the Law heere provideth that a blasphemer shall undergoe ultimum suppltoium If thou meetest saith Chrysostome a man blaspheming 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 S 〈…〉 ke him a boxe on the eare give him a dash in the mouth and sanctifie thy hand with a 〈…〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a. free Hom. 1. ad Pâ—p A 〈…〉 chenum pag. 46â— edâ— Sancti blaspheme his holy name against whom also is provided the sentence of death That the Justices of Peace or other Officers to that purpose appointed speedily dispatch the businesse of those which are of their Jurisdiction that such as come as strangers and forreiners out of other countries having no just cause of their comming be sent back againe with their substance to such places as they came from but if they be idle vagabonds and rogues or other like valiant beggers they either drive them out of the place or compell them to labour yet evermore having regard to provide for such as are honest poore old sick or impotent That Clerks be first convented before their Ordinarie and that the Ordinarie doe speedily end the matter that they may not be long absent from their benefices and that they be not drawne before temporall Judges unlesse the nature of the cause doe so require it as that it be a meere civile cause or a criminall cause belonging wholely to the Temporall court wherein if a Clerke shall be found guilty he shall first be deprived from his ministerie and then shall be delivered over into the Secular hands but if the crime be solely Ecclesiasticall the Bishop alone shall take knowledge thereof and punish it according as the Canons doe require That where one dieth without issue leaving behind him brethren of the whole bloud brethren of the halfe bloud the brethren of the whole bloud have the preheminence in the lands and goods of the deceased before the brethten of the halfe bloud whether they be of the fathers side or the mothers side That no man make Armour or sell it without the Princes leave unlesse they be knives or other such like small weapons SECT 8. What is the matter of the seventh Collation THat proofe by witnesses was devised to that end that the truth should not be concealed and yet all are not fit to be witnesses but such alone as are of honest name and fame and are without all suspition of love hatred or corruption and that their dispositions be put in writing that after the witnesses be published and their depositions be knowne there be no more production of witnesses unlesse the partie sweare those proofes came a new unto his knowledge If Parents give profusely to one of their children the other notwithstanding shall have their lawfull portions unlesse they be proved to be unkinde towards their parents That women albeit they be debtors or creditors may be Tutors or Curators to their children and that there is not an oath to be exacted of them that they will not marry againe so that they renounce their priviledge granted unto them per Senatûs consultum Velleian and performe all other things as other Tutors doe That Governours of Provinces are not to leave their charges before they are called from thence by the Prince otherwise they incurre the danger of Treason That womens Dowries have a priviledge before all other kinds of debt that what Dowrie a woman had in her first marriage shee shall have the same in her second marriage neither shall it be lawfull for her father to diminish it if it returne againe unto his hand That a man shall not have the propertie of his wives dowrie neither a woman the property of that which is given her before marriage but the property of either of them shall come unto their children yea though they marry not again SECT 9. What is comprised in the eigth Collation WIls or Testaments made in the behoofe of children stand good howsoever imperfect otherwise they De Testament imperfect § Nos â—g 〈…〉 are but they are not availeable for strangers but strangers are they which are not children neither mattereth it whether the Will or Testament be writ by the fathers hand only or by some other body by his appointment and as the father divideth the goods among the children so they are to have their parts Of Hereticks and that such are Hereticks which doe refuse to receive the holy Communion at the Ministers hand in the Catholick Church That Hereticks are not to be admitted to roomes and places of honour and that women-Hereticks may not have such priviledge as other women have in their Dowries That is called marriners usurie that is wont to be lent to Marriners or Merchant-men specially such as trade by sea which kind of lending the Law calleth passage-money in which kinde of usury a man cannot goe beyond the 100. part That Churches enjoy a 100. yards prescription That such things as are litigious during the controversie are not to be sold away A litigious thing is that which is in sute betweene the plaintife and defendant That while the sute dependeth there be no Letters or Edict procured from the Prince concerning the cause in question but that the cause be decided according to the generall Lawes in use That in Divorces the children be brought up with the innocent partie but at the charges of the nocent and that Divorces be not admitted but upon causes in Law expressed That no woman whose husband is in warfare or otherwise absent shall marrie againe before she have certaine intelligence of the death of her former husband either from the Captain under whom he served or from the Governour of the place where he died and if any woman marry again without such certaine intelligence how long soever otherwise her husband be absent from her both shee and he who married her shall be punished as adulterers and if her former husband after such marriage returne back againe shee shall returne againe to her former husband if hee will receive her otherwise shee shall live apart from them both If any man beat his wife for any other cause than for which he may be justly severed or divorced from her hee De haered 〈◊〉 inteslat § Si quis autem shall for such injurie be punished If any man conceive a jealousie against his wife as that she useth any other man more familiarly than is meete shee should let him three severall times admonish him thereof before three honest and substantiall men and if after such admonition he be found to commune with her let him be accused of adultery before such a Judge who hath authority to correct such offences SECT 10. What is the
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
somtimes at Rome in Italy somtimes at Avignion in France sometimes in other places as by the date of the Bulls and other processe of that age may be seene which severall removes of his gave occasion to the Parliament of inserting the word Elsewhere in the body of those Statutes that thereby the Statutes providing against Processe dated at Rome they might not bee eluded by like Processe dated at Avignion or any other place of the Popes aboade and so the penaltie thereof towardes the offender might become voyde and bee frustrated Neither did the Lawes of this Land at any time whiles the Popes authoritie was in his greatest pride within this Realm ever impute a Praemunire to any Spirituall Subject dealing in any Temporall matter by any ordinary power within the Land but restrained them by Prohibition onely as it is plaine by the Kings Prohibition wherein are the greatest matters that ever the Clergie attempted by ordinary and domesticall authority and yet are refuted onely by Prohibition But when as certaine busie-headed fellowes were not content to presse upon the Kings Regall jurisdiction at home but would seeke for meanes for preferment for forrain authority to controule the Judgments given in the Kings Courts by processe from the Pope then were Praemunires decreed both to punish those audacious enterprises of those factious Subjects and also to check the Popes insolencie that hee should not venter hereafter to enterprise such designments against the King and his people But now since the feare thereof is past by reason all entercourse is taken away betweene the Kings good Subjects and the Court of Rome it is not to bee thought the meaning of good and mercifull Princes of this Land is that the cause of these Statutes being taken away the effect thereof should remain and that good and dutifull Subjects stepping happily awry in the exercise of some part of their jurisdiction but yet without prejudice of the Prince or his Regall power shall bee punished with like rigour of Law as those which were molesters greevers and disquieters of the whole estate But yet notwithstanding the edge of those Praemunires which were then framed remaine sharpe and unblunted still against Priests Jesuites and other like Runnagates which being not content with their owne naturall Princes government seeke to bring in againe that and like forraine authoritie which those Statutes made provision against but these things I leave to the reverend Judges of the Land others that are skilfull in that profession onely wishing that some which have most insight into these matters would adde some light unto them that men might not stumble at them and fall into the danger of them unawares but now to Prohibitions SECT 2. The impeachment thereof by Prohibition and what it is A Prohibition is a commandement sent out of some of the Kings higher Courts of Records where Prohibitions have beene used to be granted in the Kings name sealed with the seale of that Court and subscribed with the Teste of the chiefe Judge or Justice of the Court from whence the said Prohibition doth come at the suggestion of the Plaintife pretending himselfe to be grieved by some Ecclesiasticall or marine Judge in not admittance of some matter or doing some other thing against his right in his or their judiciall proceedings commanding the said Ecclesiasticall or marine Judge to proceed no further in that cause and if they have sent out any censure Ecclesiasticall or Marine against the Plaintife they recall it and loose him from the same under paine of the Kings high indignation upon pretence that the same cause doth not belong to the Ecclesiasticall or Marine Judge but is of the temporall cognisance and doth appertaine to the Crowne and dignitie Of Prohibitions some are Prohibitions of Law some other are Prohibitions of Fact Prohibitions of Law are those which are set downe by any Law or Statute of this Land whereby Ecclesiasticall What are Prohibitions of Law Courts are interdicted to deale in the matters therein contained such as are all those things which are expressed in the Kings Prohibition as are also those which are mentioned by the second of Edward the sixth where Judges Ecclesiasticall are forbid to hold plea of any matter contrary to the effect intent or meaning of the Statute of W. 2. Capite 3. The Statute of Articuli Cleri Circumspectè agatis Sylva Caedua the treaties De Regia Prohibitione the Statute Anno 1. Edwardi 3. Capite 10. or ought else wherein the Kings Court ought to have Jurisdiction Prohibitions of fact are such which have no precise word or letter of Law or Statute for them as have the other but What are Prohibitions of fact are raised up by argument out of the wit of the Devisor These for the most part are meere quirks and subtilties of law and therefore ought to have no more favour in any wise honourable or well ordered Consistorie than the equity of the cause it selfe doth deserve for such maner of shifts for the most part breed nought else but matter of vexation and have no other commendable end in them though they pretend the right of the Kings Court as those other Prohibitions of the Law doe but the Kings right is not to be supposed by imagination but is to be made plaine by demonstration and so both the Statute of the 18. of Edward the third capite 5. is where it is provided that no Prohibition shall goe out but where the King hath the cognisance and of right ought to have and also by the fore-named Statute of Edward the sixth which forbids that any Prohibition shall be granted out but upon sight of the libell and other warie circumstances in the said Statute expressed by which it is to be intended the meaning of the Law-givers was not that every idle suggestion of every Attourney should breed a Prohibition but such onely should bee granted as the Judge in his wisdome should thinke worthy of that favour and if right and equitie did deserve it although as I must needs confesse the Statute is defective in this behalfe for to exact any such precise examination of him in these cases as it is also in other points and is almost the generall imperfection of all Statutes that are made upon Ecclesiasticall causes but I feare mee as emulation betweene the two Lawes in the beginning brought in these multitudes of Prohibitions either against or beside law so the gaine they bring unto the Temporall Courts maintaineth them which also makes the Judges they cesse not costs and damages in cases of consultation although the Statute precisely requires their assent and assignement therein because they would not deterre other men from suing out of Prohibitions and pursuing of the same The Prohibitions of the law as have beene before shewed are neither many nor much repined at because they containe a necessary distinction betweene Jurisdiction and Jurisdiction and imply the Kings right and Subjects benefit but the
translate unto themselves matters of Marine triall if they be squared to these Rules of Fictions can bee maintained for first to speake of equitie which the Law requires in these manner of proceedings what equitie can it be to take away the triall of such businesse as belongeth to one Court and to pull it to an other Court specially when as the Court from whence it is drawne is more fit for it both in respect of the fulnesse of knowledge that that Court hath to deale in such businesse and also of the competencie of skill that is in the Judges Professours of those Courts correspondent to these causes more than is in the Judges and Professours of the other Courts for the deciding and determining of these matters For albeit otherwise they are very wise and sufficient men in the understanding of their owne profession yet have they small skill or knowledge in matters pertaining to the Civile profession for that there is nothing written in their Bookes of these matters more than is to be gathered out of a few Statutes of former time whose drift was not to open any doore unto them to enter upon the admirall profession but to preserue the Kings Jurisdiction from the Admirall incroachment as may by the said Statutes appeare whereas contrarily the Civile Law hath sundry titles included in the body thereof concerning these kindes of causes whereupon the Interpreters of the Law have largely commented and others have made severall Tractates thereof So that by all likelihood these men are more fit and better furnished to deale in this businesse than any men of any other profession as having besides the strength of their owne wit other mens helpes and labours to relie upon Besides this businesse many times concerns not only our owne countrey-men but also strangers who are parties to the suit who are borne and doe live in countries ordered by the Civile Law whereby they may bee presumed to have more skill and better liking of that Law than they can bee thought to have of our Lawes and our proceedings and therefore it were no indifferencie to call them from the triall of that Law which they in some part know and is the Law of their countrey as it is almost to all Christendome besides to the triall of a Law which they know in no part and is meere forraine unto them specially when the Princes of this Land have anciently allowed the Civile Law to be a Common Law in these causes as well to their owne subjects as it is to strangers Further the avocating away of causes in this sort from one Jurisdiction to another specially when the cause hath long depended in the Court from whence it is called insomuch as now it is ready for sentence or rather is past sentence and stands at execution cannot be but great injurie to the subject after so much labour lost and money spent in waste to begin his suit anew againe which is like to Sysiphus punishment who when he hath with all his might forced his stone up to the top of the hill and so is as himselfe hopes at an end of his labour yet the stone rowles downe again on him and so his second labour his strength being spent with the toyle of the first is more grievous than the former was which being semblably true in a poore Clyent who hath his cause in hearing there can be no equity in this fiction whereby a cause so neere ended should againe be put upon the Anvill as though it were still rough worke and new to be begun And surely as there is no equity in it so there is no possibility such a fiction should be maintained by Law for that it hath no ground of reason to rest his feete on For if this be granted that such a fiction by Law may be made then one of these absurdities must needes follow either that a shippe may arive in a place where no water is to carry it or if that it arive according to the fiction either the people their houses and their wealth shall be all overwhelmed in the water as the world was in Noahs Floud Ducalions Deluge and so no body there shall be left alive to make any bargain or contract with the Mariners Shipmen that arive there or that the people that dwell there shall walk upon the water as people doe on land which Peter himselfe was not able to doe but had suncke if Christ had not reacht his hand unto him and therefore far lesse possible for any other man to doe So that it may bee well said these things standing as they doe no such fiction can hold and that no action can be framed upon it for as there is no Obligation of impossible things so there is no Action of things that neither Nature nor Reason will afford to be done neither is it to the purpose that the maintainers of these fictions doe say that in this case the place where the contract is made is not considerable which I take to be farre otherwise for that when that themselves will convey a Marine cause from the Sea unto the Land they will lay it to bee done in some speciall place of a Countrie bee the place never so unproper for such an action for that the foundation of these actions is the place where they were done as namely that they were done in the body of such a Country or such a Country and not upon the maine Sea or beneath the lowest bridge that is upon any great river next the Sea And therfore in two emulous Jurisdictions when they are so divided as that one is assigned the sea the other the land the place of the action can in no sort be suppressed and another supplyed in the roome thereof Quod enim una via prohibetur alia via non est permittendum quod prohibitum est directo prohibetur etiam per obliguum for if this were granted then matter enough would bee offered to one Jurisdiction to devour up the other and the Law would be easily eluded which to restraine either of these Jurisdictions to their owne place and to provide that one in his greatnesse doe not swell up against the other hath set either of them their bounds and limits which they shall not passe which as it is the good provision of the Law so ought either Jurisdiction in all obedience to submit it selfe thereunto for that the diminishing of either of them is a wrong to the Prince from whom they are derived who is no lesse Lord of the Sea than hee is King of the Land and therefore in no sort such liberty must be allowed to the one directly or indirectly as that it should be a spoile unto the other which would easily come to passe if when as the Law alloweth not any man to sue a Marine matter by the ordinary course of the Lawes of this Land yet a man will follow it by an extraordinary But where there is an
hold plea of any thing that is in the said Proviso conteined but it is rather directive and sheweth where the Ecclesiasticall Judge is to give way to immunities and to pronounce for them so that for any thing is conteined in this Proviso to the contrary the cognisance of these matters especially Priviledge Prescription and Composition still remaineth at the triall of the Ecclesiasticall Law as they did before this Proviso was made for Deprascript lib. 2. tit 26. De Privileg lib. 5. tit 33. Tythes and other Ecclesiasticall dueties as may appeare by the severall titles in the same Law hereon written And for the other words Law and Statute therein mentioned when as the King hath two Capacities of government in him the one Spirituall the other Temporall and his high Court of Parliament wherein Lawes are made doth stand as well of Spirituall men as Temporall men and so ought to stand in both houses if the ancient Booke De modo tenendi Parliamenti be true and authenticall which makes the upper House of three States the Kings Majestie the Lords Spirituall and the Lords Temporall and the lower House in like sort of three other the Knights the Procurators for the Clergie and the Burgesses and his Majestie hath within this Realme aswell Ecclesiasticall Lawyers as Temporall which are no lesse able to judge and determine of Ecclesiasticall matters then the Temporall Lawyers of temporall businesse It is not to be imagined but as his sacred Majestie will have those Lawes to be held Temporall and to have their constructions from Temporall Lawyers which are made and promulged upon Temporall rights and causes So also his Highnesse pleasure is and ever hath beene of all his predecessours Kings and Queenes of this Land that such Lawes and Statutes as are set out and published upon Ecclesiasticall things and matters shall be taken and accounted Ecclesiasticall and interpreted by Ecclesiasticall Lawyers although either of them have interchangeably each others voyce in them to make them a Law And that the King doth infuse life into either of the Lawes when as yet their substance is unperfect and they are as it were Embryons is in temporall matters by his temporall authoritie and in spirituall matters by his spirituall authoritie for to that end he hath his double dignitie in that place as also the Ecclesiasticall Prelates sustaine two persons in that place the one as they are Barons the other as they are Bishops So that even the orders of the House doe evince that there are two sorts of Lawes in that place unconfounded both in the head and the body although for communion sake and to adde more strength to each of them the generall allowance passeth over them all And as they rest unconfounded in the creation of them so ought they to be likewise in the execution of them as the Temporall Law sorts to the Temporall Lawyers so the Spirituall Lawes or Statutes should be allowed and allotted unto the Spirituall Lawyers And as the nomination of these words Law or Statute in this precedent Proviso makes not the Law or Statute Temporall but that it may remain wholly Ecclesiasticall by reason of the Spirituall matters it doth containe the power of him that quickneth it powreth life thereinto so much lesse can the inserting of these tearmes Priviledges Prescriptions or Composition reall intitle the Common Law to the right thereof or the Professours of the said Law to the interpretation thereof for that matters of these titles so farre as they concerne Tythes and other Ecclesiasticall dueties have beene evermore since there hath beene any Ecclesiasticall Law in this Land which hath beene neere as long as there hath beene any profession of Christianitie with us of Ecclesiasticall ordinance neither ever were of the Temporall cognisance untill now of late that they transubstantiate every thing into their owne profession as Midas turned or transubstantiated every thing that hee touched into gold CHAP. III. SECT 1. How it comes to passe that when tythes were never clogged with custome prescription or composition under the Law they are clogged with the same under the Gospel and the causes thereof BUt here it will not bee amisse to inquire since Tythes came in the beginning of the primitive Church within a little time after the destruction of Jerusalem and the subversion of the Jewes policie unto the Christian Church and common-wealth void of all these incumbrances as shall appeare after by the testimonie of sundrie of the ancient Fathers which were neere the Apostles time how it comes to passe since Tythes are no lesse the Lords portion now than they were then and in the Patriarches time before them that these greevances have come upon them more under the Gospel than ever they did under the Law for then never any Lay man durst stretch out his hand unto Malach. 3. them to diminish any part thereof but hee was charged with robberie by the Lords owne mouth and in punishment thereof the heavens were shut up for giving raine unto the earth and the Palmer-worme and Grashopper were sent to devour all the greene things upon the earth And for Ecclesiasticall men it is not read any where in the Scripture that ever they attempted to grant out any priviledge of Tythes to any person other than to whom they were disposed by the Law or to make any composition thereof betweene the Lay Jew and the Lords Levites every of the which have beene not onely attempted against the Church in Christianitie but executed with great greedinesse so farre worse hath beene the state of the Ministery under the Gospel than was the condition of the Priests and Levites under the Law SECT 2. That the causes are two fold First The violent intrusion of Lay men and secondly The over-much curiositie of Schoole men and first of the first cause and therein concerning Charles Martels Infeudations and the violent prescriptions ensuing thereupon THe beginning whereof although it be hard for mee to finde out because there is small memory thereof left in Stories yet as farre as I can by all probabilities conjecture this great alteration in Ecclesiasticall matters came by two occasions the one by the violence of the Laitie thrusting themselves into these Ecclesiasticall rights contrary to the first institution thereof for when they were first received into the Christian world they were received and yeelded to for the benefite of the Clergie onely as in former time under the Law they had beene for the use of the Priests and â—evites onely The other was the too too much curiositie of Schoolmen who being not content with the simple entertainment of Tythes into the Church as the ancient Fathers of the primitive Church received them would needes seek out how and in what right and in what quantitie this provision belongs unto the Church wherein they did by their overmuch subtilty rather confound the truth than make that appeare which they intended to doe By the first of these was
Church of any right or make of holy Church any Layfee that is halowed or sanctified And all thoe that withold the rites of holy Church that is for to say offerings tythes rents or freedomes of holy Church let or distrouble or breake that is to say if any man flee to the Church or Church-yard who so him outdraweth and all thoe that therto procure or assent And all thoe that purchasen letters of any Lordys Court that processe of right may not bee determined or ended And the Canterbury booke saith All thoe ben accursed that purchasen writtes or letters of any leud Court or to let the processe of the Law of holy Church of causes that longen skilfully vnto Christen Court the which shuld not bee demed by none other Law c. And all that malycyously biriveâ— holy Church of her ryght or maken holy Church Lay-fee that is halowed blessed And also all thoe that for malice or wrathe of Person Vicare or Preiste or of any other or for wrongfull covetyse of himselfe with-holden rightfull Tythes and Offerings rents or mortuaryes from her owne parish Church and by way of coveryse fallelyche againe taking to God the worse and to hem selfe the better or else turne hem into another vse than hem dweth or done hem in other place after the rowne will so that they he not done to the same place that they should bee or let by word or by deede any man or woman for to doe her good will and her devotion to God and to holy Church For all christen men and women bene harde bound vpon paine of deadly sinne not oneliche by the ordinance of man but both in the old Law and also in the new Law for to pay truitche to God and holy Church the tythe part of all manner of increase that they winnen truliche by the grace of God both with her travell and also with her craftes whatsoe they be truliche gotten Alsoe the tythe part of all manner fishes and foules and beasts both wilde and tame And all manner of frutes that growen out of the earth Alsoe all that wittingly or wilfully tythen falsly that is to say that geven not to God and holy Church the tenth part of every wynning leefully woâ—nen in merchandise or in any other craftes withdrawen only that expence and the costage that needfully must be made about the thing whereof the winning is getten not tything the winning of one marchandise with the losse of another And all thoe that of the fruites of the earth or of beast or of any thing that neweth in the yeare geven not the tythe wholy withouten any costage All thoe that falsly tythen taken to God the worse and holden the better to her owne profite against the ordinaunce of Boniface sometyme the Archbyshope of Cantorbury by the which ordinaunce throughout the Province of Cantorbury shuld be one manner axing of tythes in this manner wise Of all manner of frutes of earbis of gardens withouten any manner of cost abating of hey where ever it groweth in greate medes or in smale as oft as it neweth of neweing of all manner of besteal of calfe or of lambe fro seaven vpward into the tenth and fro syx downeward for everyche of hem an halfe penny but if the Person or Vicarye will abide till another yeare and tell thilke that leeven and take the other beast that followeth of woole that is woxen of fellis fro purification of our Lady of milke all the while that it dureth as well in Winter as in Sommer but if they will doe gree therefore to the Person or to the Vicary for the profite of holy Church Of fishing of 〈…〉 eing of veneson oâ— beene of all other good rightfully wonnen that newen by the yeare of profite of mills and weris of fishing noe cost abate but to the very value shall the tythe be payd of lesewys communys severelis shall the tythe trulyche bee payd after the number of the beeseis or the dayes as it is most profite to holy Church all werkemen and chapmen that wynnen on her craftes and on her marchandise shulen trulyche pay her lythe to God and to holy Church Alsoe Carpenters and Smithes and Weeveris and all other crafty men and all other hired men and wimen shulen Tythen of all they getten but if they wulle giue any certayne thereof to holy Church at the Persons or Vicaryes will Alsoe of fowles of Calues of Piggs of Gees of Hennes of flaâ—e of Hempe of Corne and of all thing that neweth by the yeare Alsoe of shryding of Trees and of all manner of vnderwood woring or hewed Alsoe men of holy Church moune curse by name hem that wolen not pay her Tythes as it is written in many places of the law of holy Church At the repeating of these Articles the Prelate standeth in the Pulpit in his Albe the Crosse being lifted up and the candles lighted After the Repetition these or the like formall words of Execration are denounced Ex Authoritate Dei Patris Omnipotentis beatâ— Mariae Virginis omnâ—â—m Sanctorum excommunicamus and thematizamus Diabolo commendamus omnes supradictus malefactores Excommunicati sunt anathematizati Diabolo commendati Maledicts sunt in villis in campis in vus in semitis in domibus extradomes iâ—omnibasâ—atâ—is locu stando jacendo surgendo ambulando currendo vigilando dormiendo comedendo bibendo aliud opus faciendo Or as the Canterbury Booke saith But thorow authoritie of our Lord God Almightye and our Lady S. Mary and all Saints of Heuen of all Angels or Archangers Patriarchs and Prophets Euangelists Apostles Martyrs Confessors and Virgines alsoe by the power of all holy Church that our Lord Iesus Christ gaue to S. Peter we denounce all thoe accursed that wee haue thus receiued to you and all thoe that maintaine hem in her sins or geuen hem hereto either helpe or councell soe that they bee departed from God and all holy Church and that they haue noe of the passion of our Lord Iesu Christ ne of noe Sacramentes that bene in holy Church he noe part of the prayers among christen folke but that they be accursed of God and of holy Church fro the soole of their foote vnto the crowne of her head sleaping and waking sitting and standing and in all her words and in all her workes and but if they haue grace of God for to amend hem here in this life for to dwell in the paine of hell for euer withouten end Fiat Fiat Doe to the boke Quench the Candle Ring the Bell Amen Amen This Generall Sentence was solemnly thundered out once in every Quarter that is as my old Booke saith the fyrst Sonday of Advent at comyng of our Lord Ihesu Cryst the fyrst Sonday of Leenten The Sondaye in the Feste of the Trynyte and the Sonday within the vtus octavesweesay of the blessyd Vyrgyn our Lady S. Mary damnation Neither did all such as did then
restore them restore them to the Churches from whence they were taken which had beene most agreeable to the ordinance of the Church set down by Dionysius who first devided Parishes and assigned unto them Tythes as hath beene aforesaid and also to the Scripture it selfe Deut. 18. from whence Dionysius tooke his light to divide Parishes and dispose of Tythes as hee did by which it was not lawfull for him that paid his Tythes to pay them to what Priest or Levite Thus much we have set downe concerning the Generall Curse not hoping to fright any man into devotion with this black Sentence or to propose such distempered pietie for an example but that it might bee considered how horrible a crime it was in our Forefathers account to rob the Church in the least particular And indeed they conceived no more hope of a man that died under this Damnosum Theta than of him that dyed in a mortall sinne nay much lesse for the Canterbury Booke saith that many Clerkes preuen at the day of dumme wuld our Lady Saint Mary and Saint John Baptist and all Saints that bene in heauen knele downe at once before the blessed face of Almightye God they shulen not in that tyme thorowe the prayer of them all deliver the Soule of man or woman that dyeth in deadly sinne c. And if the day of dumme shall be so heard to all thoe that dyen in any deadly synne by all reason full myche harder shall it be at that tyme with all those that bee founden openly cursed of God and of holy Church c. Thus we see what furies followed this Sacriledge in the opinion of our Forefathers who were so confident that a Church-robber could not escape the Judgement of God that they delivered him over to Satan or as they say cursed him with the More and with the Lesse Curse with Bell Booke and Candle The Clergie of the present time gives better language than thus what cause they may have I will not say It may bee accounted for wisdome that their injuries cannot bee judged by their clamours yet the Ages to come must not say that these things were done Nobis dormientibus The experience of the Emperours Charles the Great and Lewis the Godly would be noted to this purpose out of their Capitulars Novimus say they multa Regna Reges eorum propterea cecidissè quia Ecclesias spolia verunt résque earum vastaverunt abstulerunt alienaverunt vel diripuerunt Episcopisque Sacerdotibus atque quod magis est Ecclesus eorum abstulerunt pugnantibus dederunt quapiopter nec fortes in bello nec in fide stabiles fuerunt nec victores extiterunt sed terga multi vulneratt 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 plures interfects vexterunt regnaque regionem quod peâ—us est regna coelesta perdiderunt atque proprus haereditatibus caruerunt hactenus carent So they in the 7. Book of the Capâ—â—ul c. 104. fol. 214. Edit Paris 1603. Whereas the Capitular attributeth those grand enormities their ill successe to the Kings of that time it is not now to be so understood Farre be it ever from us to thinke otherwise than divinely of these our most Religious Princes by whose gratious protection the Church hath bin of late so miraculously blest As for others among us they may apply this to themselves as they shall be troubled with cause and occasion The great Impostor in his Alcoran though he cozened all the world besides yet he would not defraud the Church De Decimis sume saith he inde secundum morem consuetum operare Inscus te subtrahe semper So our Robert of Reading translateth But hee that reades Roberts Translation must not alwayes thinke he reades he Alcoran The Prophets owne text is in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Surato laaraph which in our manuscript Alcorans is the 8. c. the 17. in Roberts Translation 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is Give command concerning Tythes and beware of Clownes the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 may bee otherwise understood but if this were not Mahumet's meaning the matter is not great for we have better Prophets to preach this Doctrine him liked but hee must pay them to the Priest or Levite that dwelt in the place where himselfe made his abode but yet this libertie that was given them by the Councell then gave cause unto the errour that the Common Lawyers hold at this day not knowing the ancient proceedings of the Church in these cases that before the Lateran Councell it was lawfull for every man to give his Tythes to what Church he would which was so farre otherwise as that before this violence offered unto the Church there was a flat Canon more ancient than the fact of Charles Leo 4. 13. 9. 1 c. Eccl. Martellus which did precisely forbid any man to pay or a Bishop to give leave to any man to pay his Tythes from the * The Rites of Baptisme in the primitive times were performed in Rivers and Fountaines where the persons to be baptized stood up and received that Sacrament therefore it is that the Sonne of Azalkefat in the Arabick Gospels useth the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Amada to baptize which word also beareth the same sense in the Syriack and is often mentioned by Patriarch Severus in his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Order of baptizing the Saints The reason in both Dialects is the same for that the word Amada is by the Syrians and Arabians derived from the Hebrew Amad which signifieth to stand up This manner of baptizing the ancient Church entertained from the example of our Saviour who baptized Iohn in Iordan And some say that this was very tolerable in those Easterne parts but certaine it is that it was most coÌ„venient for that time because their Converts were many and men of yeares A reason also may be for that those ages were otherwise unprovided of Fonts and such conveniences which are now in use and this hath beene a cause why this manner of baptizing was resum'd in after-times and other places for our venerable Bede telleth us of some that were baptized heere in England in the River Swale which runneth through a part of Yorkeshire in the North Riding and hee giveth the same reason Nondum enim Oratoria vel Baptisteria in ipso exordio nascentis thi Ecclesia poterant adificari Ecclesiast hist lib. 2. cap. 14. The dayes we now live in have no other remainder of this Rite of Baptizing in Rivers and Fountaines than the very name for hence it is that wee call our vessels that containe the water of Baptisme Fonts or Fountaines This custome of Baptizing in Rivers and Fountaines being discontinued Fonts were erected in private houses but the violent persecutions of those times barr'd the Christians of that convenience therefore their next recourse was to woods and devious places and there they accommodated themselves with such Baptisterials as they could In more
Church to an other and that the contrarie was yeelded to in the Lateran Councell was not that they held it lawfull to enrich one Church in this sort with the impoverishment of an other but the cause was the hardnesse of mens hearts who scarcely could be won by this favour to restore that little againe unto the Church that their forefathers had in such abundance taken away from it and that the Fathers of the said Councell did yeeld thereunto although it were an inconvenience thus to doe was for that they did count although they did admit that it might bee for the present yet there might bee a better time found out after for the reformation thereof and so sustained the inconvenience for the present upon this reason that the universall Church of Christ is one body and every particular Church a part of that body and so it lesse mattered to what particular Church they were restored so that they were restored at all for that by the restitution to one they hoped in time they might with more likelihood come unto the other for those things wherein there is an Identitie or like representation of Nature and Condition as is betweene Church and Church have an easier passage the one from the other than those that are of different nature and disposition as a lay man and a Church SECT 3. That out of that violent Prescription many other Prescriptions arose but of lesse moment OUt of the ruines of this violent and presumptious prescription which have now obtained strength of a Statute in the world have issued out sundry petty Prescriptions which also are confirmed by law and custome as the other were as the Prescription wherein one Church prescribeth Tythes against an other Church the Law punishing therein the negligence of the one and rewardeth the vigilancie of the other Prescriptions wherein one Ecclesiasticall body corporate or politique prescribeth Tythes or other Ecclesiasticall duties against the Parson or Vicar of the Parish and the Parson and Vicar againe against them A Prescription whereby a Lay man having no right to prescribe Tythes because hee can in no right possesse Tythes Regul sine possessione de regulis juris in 6. and prescription cannot proceede without possession doth notwithstanding by pernancie or giving some part of his ground or pension in money in lieu thereof prescribe a discharge thereof A prescription wherein a Lay man doth prescribe the manner of Tything which albeit by the Common Law is counted to be good by paying a thing never so small in lieu thereof yet neither by the Canon Law neither by the Law of God it selfe could it ever be lesse than the just tenth it selfe so that the manner of Tything with them is not understood in that sence as the Common Lawyers doe take it by paying any thing whatsoever in place of the just tenth but their intendment hereby is that no countrey can bee bound to an uniformitie of payment of Tythes to bee used every where but every man is Linwod Provin quaniam verbo uniformis in Glo. de decim to pay Tythes according to the manner of the Countrey where hee dwels that is that one payes his Tythe-corne and bindes up the same in sheaves an other leaves it scattered in the furrowes an other tythes it in Cocks or Pookes and this is it that they meane that there cannot be an uniformitie of Tything prescribed to every man after which he is of necessitie to set out his Tythe but that he may prescribe some other manner of Tything against the Parson or Vicar but against that uniformitie that the whole Tythe Eod verbo consuetudines should not be paid was never any prescription allowed among them for they evermore have beene of this minde contrary to that which the Schoolemen bold that Tythes are part of the Morall Law and not of the udiciall or Ceremoniall Law and that in the Precept of Tythes there is a Cap. Ã nobis de Decimas in Glos. double consideration one of the honour of God whereby he retained tythes unto himselfe in signe of his universall Lordship over the whole world which is irremissable the other of the profit or utilitie of man in that it concernes the provision of the Minister in all ages which is undispensable SECT 4. That Ecclesiasticall Judges admit pleas in discharge of tythes and the manner of tything contrarie to the conceit that is had of them ANd yet notwithstanding all this the Ecclesiasticall Judge admitteth all kinds of prescriptions before-named and according to the proofes thereon brought giveth sentence either to absolution or condemnation albeit the Reverent Judges of the Land upon an erroneous report made in the eight yeare of Edward the fourth have a conceit to the contrarie viz. That no Ecclesiasticall Judge will admit any Plea in discharge of Tythe or the manner of Tything as it is in their sense taken and therefore they hold whatsoever the Defendant doth alledge in his suite for a consultation and namely that the Ecclesiasticall Judge did allow of the Plaintifes Plea and allegation and did admit him to the proofes thereon without deniall are idle speeches rather words of course than of effect and substance And therefore notwithstanding whatsoever is alledged by the Defendant as concerning the Ecclesiasticall Judges well acceptance thereof it is counted nothing materiall by the Temporall Judges for that they have a prejudicate opinion of the Ecclesiasticall Judge in these cases and therefore howsoever the refusal be or be not they grant out their Prohibition in these cases And yet if the Judges Ecclesiasticall proceedings might be seene and vouchsafed to be read before them it would bee plaine there was no such cause of their hard opinion against them for every where they doe allow such and like allegations And if perhaps one inferiour Judge should make refusall as they pretend yet could it not bee reformed by an other in an ordinarie course of appeale but that there must needs be brought a Prohibition out of the Common Law to redresse the same unlesse happely they can shew it is a generall conspiracie in the Ecclesiasticall Judges or a Maxime in their learning that they will not or cannot admit any Plea of discharge in this case which they can never doe And therefore they are to be in treated to change their opinion in this point and not doe the Ecclesiasticall Judges that wrong as to charge them with such an imputation whereof their whole practice is witnesse to the contrarie for it is unworthy such mens gravitie as theirs is who propound unto themselves the inquirie of the truth in all matters thus to be misconceived and masked in an errour and that for so many yeares and not to be willing to heare the contrarie which is an obstinacie in policie no lesse obdurate than the Papists is in Religion who see the truth and will not beleeve it And so farre as concerning Prescriptions and the first cause and
and carnall men seeke for very greedily humbling themselves onely to God and the rule of their Master Which thing bred such an admiration of him and of his Schollers that not only many other Ordes sprang out from them within few yeares as the Praemonstratenses Cluniacenses Templarians Hospitallers Cystertians and the order of Saint John of Jerusalem but even Popes Princes and people were wholly carried away with the wonderment of them insomuch as every of them did as it were strive who might shew themselves most kinde unto them whereupon Princes built them houses every one in his Kingdome as Clito Ethelbald King of Mercia built the Monasterie of Crowland here in England of blacke Monkes under the rule of the said Benedict in the yeare 716. Popes and Princes granted them priviledges so farre as it concerned either of their particulars the Clergie Nobilitie and People conferr'd goods and lands upon them every one according to his abilitie SECT 3. That the admiration which these Religious Men did breed of themselves in the head of Princes and Popes did procure appropriations of Parsonages and Immunities from Tythes And that the over-conceit which men had of Prayer above Preaching in the Church was an adjuvant cause thereunto IN this zealous bounty of every degree towards these new sorts of men there are two undigested Priviledges granted them both of them so hurtfull and injurious to the Church of God as never any was the like The one was the Annexation or Appropriation of presentative Benefices to these Religious Houses The other the freeing of such Lands or Hereditaments as they held in sundry Parishes from the payment of Tythes to the Parsons and Vicars thereof to both of which the School-mens Divinity gave great advantage as shall be shewed hereafter Either of these had their beginning of one roote that is to say of this false ground that Preaching which is the most true and most naturall foode of the Soule in a Congregation that is come to the profession of Religion already and knowes but onely the Articles of the Christian Faith the Lords Prayer the Ten Commandements Linwood provin eisdem de offic Archidiacont cap. Igncrantia Sacerdotum de officio Archipresbyters and other Principles and Rudiments of Christian Religion is nothing so necessary for the Salvation of a mans Soule as Prayer is Besides that Preaching oftentimes gives more cause of Schisme and dispute in Religion than it doth of profiting and edifying the Soule and therefore it was not permitted by the Provinciall Constitutions of this Realme that Parsons or Vicars of Churches should expound or preach any other matter or doctrine than the Lords Prayer the Ten Commandements the two Precepts of the Gospel that is the love of God and the love of a mans Neighbour the sixe workes of Mercy the seven principall Vertues the seven Sacraments for so many then the Romish Church held the seven deadly Sinnes with their progeny and this to be done vulgarly and plainely Absque cujustibet subtilitatis texturafautastica for so they call learned and orderly Preaching whereas notwithstanding Prayer is evermore profitable every where necessary and never dangerous Furthermore Preaching onely profiteth those that be present and doe beare it and attend upon it but Prayer is availeable even to those that be farre distant yea though they be in the remotest place of the world By which and other like arguments they translated away that maintenance that was provided for the home Pastors who by Gods owne institution were to watch over their Soules to forreine and strange Guides who never communicated to their necessitie in any heavenly comfort but onely tooke the milke of the flock and fed themselves withall But by this pretence of theirs ought not Preaching to have beene disgraced for albeit Prayer bee a necessarie peece of Gods service and so necessary that the Soule of man is as it were dead without it yet is it not †But here it will neede that the Reader use a sober judgement for it cannot but bee thought unequal that Prayer and Preaching should bee so unwarily plac'd in competition as that Prayer should lose by the comparison There may bee alwayes neede of Preaching but then most of all when the Auditorie is unchristian This reason prevailed for all places in the first times but in these last onely for some according to which it were unprofitable to goe about to convert the Indies no otherwise than by our Prayers Yet even in those primitive times which had most cause to call for Preaching we shall find that this duty was of rarer exercise lesse solemnity than that of Prayer as it may abundantly be discovered out of the Liturgies of both the Charches And it is observeable that where Preaching hath beene of the greatest account it hath bin so much beholden to Prayer that it was not onely begun and ended but also discontinued by devotion For wee shall finde the Reverend Fathers Chrysostome and Basil of Seleucia at prayers in the middle of a Sermon See the one in his 39. Orat. the other in his 3. Hom. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Moses the Sonne of Maimon that profound Doctor of the Iewes instituting a comparison betwixt their Sacrifices and the more substantiall Services required in stead of all other nameth that of Prayer and Invocation and of these hee saith that they are c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nearer to Gods first intention and that our way thereunto is bythem afterwards he saith that these are necessarie 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 at all times in all places and for every man See his More Neuoch Helec 3. C. 32. p. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And holy Antioch in his 106 Hom. which is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 saith of Prayer 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that it is of a more sublime Condition than any other vertue And how our Lord himself stood affected to this wee may acknowledge by that where hee calleth the Church his House of Prayer not Preaching which took so well in the elder times that all their Temples were known by the name of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Oratories Nay the Preacher himselfe Prov. 15. is so confident of a just mans Prayer that he dares say that God will even be obedient to it for so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is rendred by the Interpreter of the forenamed Antiochus However It may seeme to be so for when all the Preaching of Lot could prevaile no otherwise than to bring vexation to his righteous Soule the Prayers of Abraham might have saved Sodom if among so many thousands there had beene but ten just men All this while wee would not detract anything from Preaching but considering our selves to live under a State so maturely compos'd and so throughly advis'd and setled in the Faith it will be expected that we should so farre moderate our opinion of Preaching as that our magnifying thereof may no way
or forced to forbeare for want of Characters As the Bishop was to be look't after by those that would come into a Religious House so also by those that would goe out So it seemeth by the Law of Alfred 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Nunnan 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 If any leade a Nanne out of a Monasterie without the Kings leave or the Bishops hee shall pay 120 Shillings In the filling of Appropriations which were made over to the Religious Houses the Law saith that the Bishop had this power That he could binde the Proprietaries to set out for the Vicar Incumbent such a Convenable Portion of the Incomes as the Bishop in his judgement should be pleased to allot See Alexand. 3. to the * Bishop of Worcester De Prab dig C. De Monach. And there be that are well enough perswaded that the B. even now also ought in this Right to be acknowledged and the ground is for that it may be likely to stand without injurie to the Statute of Dissolution For it seemeth by the 27. of H. 8. c. 28. that these Lands are to be holden in as large and ample manner as the Proprietaries did then hold them or ought to have done And an other Clause of the same Statute Saveth to every Person and Persons and bodies politique c. other than Abbots c. all such right title interest c. as they or any of them hath ought or might have had c. But the consideration of this I restore to him from whom I had it The late learned Civilian in the Poore Vicars Plea where the Reader who desireth more of it may be further satisfied Now it is to bee observed how farre forth the Patron was to depend upon the Bishop for the filling of any other Church or Oratorie Most proper to this purpose is the Emperours Novell which was decreed litle lesse then eleven hundred yeares past about the latter end of the 5 Centurie 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is If any man shall erect an Oratorie and his desire be to present a Clerke thereunto by himselfe or his heires if they furnish the Clerke with a Competencie and nominate to the Bishop such as are worthy they may be ordain'd But if those who are intimated by them be rejected by the Canons as unworthy of the Ministrie then let it be the care of the most Reverent Diocesan of the place to present such as in his discretion he shall conceive better of That we may the more certainly know what the Emperours minde is it must be considered out of Panormitan what is the meaning and originall of the Patrons Right which by the Canon is called Ius Patronatus and by the Common Law Advouson The Abbot out of the Law saith that this is Ius honorificum onerosum utile alicus competens in Ecclesia pro eo quod Diocesani consensu Ecclesiam fundavit construxit veldotavit ipse vel is à quo causam habuit Abb. in Rubric He therefore that founded a Church that is fundum dedit gave a piece of ground De Ier. Pat. C. Nobu He also that built a Church upon it 16. q. 7. c. Monasterium Or lastly he that endowed the Church built C. Piae Mentesibid was thenceforth qualified with this Right of Patronage But all this while it is especially to be noted that all this was done Consensu Dioesanâ— which seemeth to have beene so requisite by that of Clement C. Nobis De Iur. Patron Si quis Ecclesiam cum assensu Dioecesanâ— construxit ex eo lus Patronatus acquirit that if Ex eo should be referr'd to assensu nothing makes a Patron but the Will of the Diocesan And it is to bee understood that when a man dispendeth of his temporall estate towards the Founding Erecting or Endowing of a Church whatsoever shall be so conferred after consecration is actually delivered up and made over to God himselfe therefore it must needs be that from henceforth these things cannot properly belong either to the Bishop or the Patron for the Emperour saith Quod Divini juris est id nullius est in bonis Instit de Rerum Divisione §. Nullius rate that neither of them should presse too much the one upon the other and therefore in the beginning the usuall rate that they set downe betweene the beneficed man and the Religious person was the one halfe of the Benefice for that it was not thought that the Pope would charge a Church above that rate But after by the covetousnesse of Monkes and Friers themselves and the remisnesse of Bishops who had the managing of this businesse under the Apostolique See the Incumbents part came to so small a portion that Vrban the fifth by Othobon his Legate here in England in the yeare of Salvation 1262. was faine to make a Legantine whereby he forbad all Bishops of this Land to appropriate any more Churches to any Monasterie or other religious houses but in cases onely where the persons or places to whom they were appropriated were so poore as that otherwise they were not able to sustaine themselves or that the cause were so just that it might be taken rather to be a worke of charitie than any inforcement against Law and that beside with this provisâ— as that if the new proprietaries within sixe moneths next after should not set out a competent portion for the Minister of the fruits of the Benefice themselves should assigne out a sufficience thereout according to the quantitie thereof Which constitution because it tooke not the effect that was hoped there were two Statutes Only the dispensation of those things must be referr'd to Men And to that purpose who of all men could be more fit then the Bishop It seemeth therefore that the right of Presentation may be originally in the Diocesan and wee shall finde it hath beene so by a certaine passage recorded in the life of Bishop Vlrick where the Author faith That when any would build a Church in his Territorie the Bishop freely consented both to the Erection and Consecration Si confestim ille consecrata Ecclesia legitimam dotem in terrâ—s mancip 〈…〉 s in manum ejus celsitudinis dare non differret c. which is answerable to what was before said concerning the dowrie of a Church It followeth in the Author Consecrationeque per act à doteque contradita comprobato illic Prâ—sbytero altaris Procurationem commendarit Ecclesia Advocationem firmiter legitimo hareds panno imposito commendavit that the Consecration being ended and the Endowment delivered up the care of the Altar was committed to the Priest allowed and the Advouson firmely conveighed to the lawfull heire by the putting on of a Robe Author vita Vdalrici C. 7. p. 52. edit August Vindel. 1595. It is now time to consider how farre forth the Bishop departed with this Right to the Lay Patron and for what causes Wee have said that the Bishops Right was not to the things
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 §
censured 204 Arbitrement what 79 Armes and the cases incident 99. how gotten 100. how to be borne 101 102 Armour by whom to be made 60 Artificers immunity from service 41 Auditors denied that immunity which professours enjoy 40 Aventines paines in compiling his Annals 169 Augustus why so called 108. his title to the Empire ib. Augustine the Monke 142 Avocation of causes inconvenient 131. 132 Aurum glebale what 45 Authenticks what 50. why so called ib. their contents seq B Baptisme how primitively administred 176 A Baptismall Church what 177 Barcinius the Collectour of the first Volume of the Decretals 75 Barren ground what 223. vid. Waste What ground to be accounted harren 224. Absolute and Comparative 223. how distinguished from Heath 225. Barren money what 224 Bastards by law those that are borne eleven moneths after the decease of the womans husband 55. severall sorts of Bastards 244. not to beare their Fathers Armes 245. nor to inherite ib. how they might be legitimated 146 Bastardie what 243. the effects thereof 245. to what jurisdiction the triall thereof belongeth 246 propounded either incidently 247. or principally 248. Generall bastardie defined ib. speciall defined 249. refuted 250. both of Ecclesiasticall cognisance 251. as is proved by severall precedents 251. 252 Battaill Abbey by whom founded and how endowed 190 Bawds how punishable 53 Benedict the first Founder of cloystered Monkes 187 Benefices how long they may be vacant 81. not to be impaired during the vacancie 82. some appropriated to Bishops and why 216 Bequests vid. Legacies Bertricks Will 194 Berytus the priviledges thereof 43 Bigamie 83 Bishops why so called 34. their power and jurisdiction 35. and degree 120. 121. place in Parliament 159. 160. their power in Ordination of Clerkes 57. in Consecration of Churches 191. 192. 193. seq Chappels 58. in Division of Church dues 154. in decision of controversies 54. in permission or prohibition of building Churches 191. and endowing them 194. and filling them 195. 196. seq their manners 51. 52. who to be elected 64. not hunters nor severe 85. to be resident 58. 65. not to be called before a temporall Iudge 65. nor deteine the Tythes of any Benefice by them founded 206. 207. nor passe them over to Lay men 208. in what cases they may hold them in fee. ib. their primitive endowments 209. 210. their different right in Tythes and demeanes 215. they somtime present at Patrons Wils 194 Bishop of Romes priority 66 Blasphemie capitall 59 Boniface the 8. Collectour of the second Volume of the Decretals 75 Border grounds 61 Boughes of great trees tytheable 229. 230. c. not accessories to the trees 233. Bounds of Parishes of Ecclesiasticall cognisance 151. vi Parish But of Bishopricks temporall 155 Brethren of the whole blood preferred before others 60 Briberie how punished 23 24 Burglarie how punished 21 Burners of houses how punished 19 C Cacus his fact 157. applyed 158 Canon Law what 73. divided 74. vid. Law Canons of Nice 153. of Antioch 154. of the Apostles questioned 194 Cardinals originall 152 Captives 27. feigned by the Law to be dead when they are taken 129 Cassiopea's new Starre 170 Castalia Castle-ward what 70 Castellians who 47 Censures to be judicially executed 85 Cessers for what instituted 44 Ceremonies used at the dedication of a Church 191 Chamberlaines place 46 Chancellours what 115 116. how they differ from Commissaries ib. their antiquity ib. Lord Chancellour why provided of Assessors 275 Changes of Church lands 57 Chappels how to be built 58 Charles Martel vid. Martel Children not to be punished so severely as men 85. after divorce how to be educated 62. their maintenance how it may be provided for 263 Chorepiscopi their office 153 154 Churches affinity with the Common-wealth 211. their priviledges 34 293. Prescription 62. building 65 66 not to be built without the consent of the Bishop 193. nor endowed 194. Manner of dedication 52. 191. their lands not to bee alienated 52. 54. 63. nor goods immoveable 56. nor vessels 64. yet may they be exchanged 57. at the Bishops disposall 193 194. Churches formerly both few and meane 197 Church dues how divided 153 154 Church peace-breakers how mulcted 178 Church-robbers curse 172. 173. the crime fatall to kingdomes 175 Church-shot 138 Circumstances considerable in punishing 99 Civilians disrespected 274 Civile Law vid. Law Pope Clement's sentence for the K. of Sicily 113. Clementines what 75 Clergies orders 54. most beneficiall to the Prince 186 Clerkes why so called 34. who to be admitted 65. where to pay for admittance 57. their behaviour and number 51 52 53. strictnesse of conversation 184. to be reverenced 117. not to hunt 85. nor to medle in civill affaires 82 their immunity 64. 66. how to be judged 60. by whom 65 Cloistered Monkes their originall 187. Priviledges 188 Clients compared to Sysiphus 132 Cnutes lawes 140 Code what why so called why compiled 31. how distinguished from the Digest 32. 33. contents s for whom most usefull 49 Cognisance Ecclesiasticall and Temporall 158. vid. Ecclesiasticall Collations the Sections of the Authenticks 50 Collectours of subsidies how to be punished for exacting 14. their office 38 Colours their dignitie in Armory 102 Combats permitted by the Common law 86 Commissaries what 116 Common-wealth allied to the Church 211. consistes of two parts 271. ruled by peace vid. warre ib. Competency to be allowed to the Minister 95. 196 Commutation of Church lands how formerly tolerated and how in the present age 210. 211 Confiscation in whole or in part 25. goods confiscate how to be disposed 37 Connexitie of causes not to be taken away 148. 157 Consecration of Churches with what ceremonies performed 191 Consent of parents requisite co the Marriage of Children 67 Consistories why granted 117 Constantines great bountie towards the Church 182. his law concerning Executors 267 Constantinoples priviledges 43 Consull what 45 Contracts Marine 88. 89 Contribution for ejectments 92 Controllers office 39 Controversies how decided 9 Corruptions in judgement how punished 20 Corses not to be prohibited buriall 6 Cozenage how punished 21 Councellours vid. Advocates Councels decrees as lawes 66. Councell of Nice 153. of Antioch 154. Lateran of Gangra and Antioch make Bishops disposers of Church goods 194. as also the Toletan Bracaran c. 195 Courts Spirituall abbridged of what they formerly have had 114. 115. 146. 147. why first granted 117. Court of Chancerie 275. of Requests 276 Crimes extraordinary 19. 20 Criminall matters triable in Ecclesiasticall Courts 48. 115 Crosse with what ceremonies set up in Churches 191. used for want of Churches 197 Curiositie of School-men prejudiciall to the Church 162. 202 Curse the More and the Lesse 172. The manner of Cursing 173. The forme of the generall Curse with Bell Booke and Candle 174 Customes of tything of Ecclesiasticall cognisance 147. 148 Cystercians exempted by the Pope â—00 but compelled by the Parliament to pay Tythes 143 D Damages why not cessed in cases of consultation 127. treble