right of Patronage of Synodals and Procurations of consecration of Churches of Celebration of Diuine seruice and the Eucharist of Baptisme and the effect thereof of a Priest not baptized of Fasting Purification of women and other like Ceremonies pertayning to Ecclesiasticall discipline Of buylding and repayring Churches and of their Church-yards and the immunitie that belongs to them both and of sundry other things in like sort pertayning to the Church That Clerks and other Ecclesiasticall men trouble not themselues about Ciuile matters contrarie to their office and profession The fourth Booke disposeth of matters of Espousals and Matrimonie sheweth what words make espousals what Matrimonie of the Betrothing of such as are vnder age of clandestine Espousals and Contracts and of what accompt they are to be had of in the Church and how they may be made good Of her that hath betrothed her selfe to two men whose wife shee shall be what conditions may be put in Espousals and what not what Clerks or Votaries may marry and what not of him that hath married her with whom before he hath committed Adulterie and whether the same second Matrimonie be good whereupon the resolution of the Law is that if the women knew not that he had an other wife he cannot leaue her his fiâ—st 〈…〉 under pretence he had an other wiâ—e 〈…〉 that if shee knew of it and did ioyne with him 〈…〉 â—â—king away his wife he cannot 〈◊〉 her 〈…〉 he were seperated from the other as 〈…〉 Whether Leprose men other which are 〈…〉 with like contagious diseases may marry and whether being married the marriage may not be dissolued vpon this point Of kindred spiritual or legall and in what sort they hinder marriage of him that hath knowen his owne wiues sister or his owne cosen german whether this offence do break the Matrimony that is contracted or do hinder the Matrimony that is to be contracted Within what degrees of consanguinitie or affinitie a man may marrie Of such as are cold of Nature or inchanted by Sorcery whether they may marrie The like respect is of Women who are vnfit for men Of such as marrie against the Interdict or prohibition of the Church and what penalty they incur What Children be held legitimat who they be that may be accusers or witnesses in cases of dissolution of Marriages betweene man and wife Of Diuorces betwéene man and wife which are called of the diuersitie of mindes that are then betweene them for that one seeketh to go apart from the other and in what cases diuorces are allowed and how many kinds there be of them of gifts betweene man wife what securitie they haue in Law and that the Dowrie after the diuorce be restored to the woman so that it be not in case of Adultery and other such like filthynesse Of second Marriages in what cases they are to be permitted in what not The fifth Booke treateth of such Criminall matters as are handled in Ecclesiasticall Courts wherein the proceeding is eyther by accusation whereto the Accuser doth subscribe his name because it tendeth to punishment or else by denunciation whereto the Informer doth not subscribe his name because it tendeth only to the amendment of the party or by Inquisition which for the most part is not vsed but vpon fame precedent albeit sometimes it be without fame if once the fame be proued then may inquirie be had of the trueth of the fact but yet without malice or slaunder The Criminall matters which are prosecuted in the Ecclesiasticall Courts and censured by Canonicall punishments are Symonie and selling of Ecclesiasticall graces and Benefices wherupon Prelates are forbyd to let out their Iurisdictions vnder an annuall rent and Masters and Preachers to teach for money The punishment of Iewes and Saracens and their seruants that is if a Iew haue a seruant that desireth to be a Christian the Iew shall be compeld to sell him to the Christian for xij pence That it shall not be lawfull for them to take any Christian to be their seruant that they may repaire their old Synagogues but not build new that it shall not be lawfull for them vpon good Friday to open either their dores or windowes that their wiues neither haue Christian Nurces nor themselues be nurces to Christian women that they weare diuers apparell from the Christians whereby they may be knowen and other ignominies of like sort Who be Heretickes what be their punishments who be Schismatickes what be their punishments Of Apostataes Anabaptists their punishments of those that kill their owne Children their punishments of such as lay out yong children and other féeble persons to other mens pitie which themselues haue not and how they are to be punished of voluntarie or casual murders of Tilts Barriers Tornament of Clerkes that fight in combat of Archers that fight against Christians of Whoredome and adultery and how they are to be punnished of such as rauish women and theyr punishment of Théeues and Robbers of vsury and the payne thereof of deceipt and falshood of Sorcery of collusion and Cosonage and the reuealing of the same of Childrens offences and that they are not to be punished with the like seueritie as mens offences are of Clerks hunters or hawkers who if they often times vse and sport themselues therein if they be Bishops they are to be suspended from the Communion thrée moneths if Ministers or Priests two but if he be a Deacon he is to be suspended from his office If a Clerk often times strike other men and being admonished to forbeare such kind of violence doe neuerthelesse continue in his folly he is to be deposed If a Bishop cause any man rigorously to be whipt he is to be suspended from saying seruice two monethes Such as speake ill of Princes and other like great persons spirituall or temporall are to be punished so that other by their example may take héed to speake ill specially such as blaspheme the Maiestie of the almighty God If Clerks excommunicated deposed or interdicted in that they came to the highest order without passing thorough the inferior orders or that they came to the same order couenously and deceiptfully or being not ordered at all or at the lest not ordered lawfully dare take vpon them eyther to Minister the holy Sacraments or to say diuine Seruice are to be deposed from their office and from their benefice and neuer after to be ordered Prelats are not to gréeue their subiects eyther with rash suspension or excommunication of their persons or interdicting of their Churches but they are to execute all those censures of the Church in iudiciall order they are not easily to suffer any man to hold two Benefices where one may suffice or to reteine any thing to his owne vse in a Church wherein he hath collation or subiection and that he is not to bestow any benefice vpon any that is vnworthy for the same eyther in life or doctrine with
al should be ended in one and the selfe same Court which would be a great ease to the subiect who to his intollerable vexation and eycessiue charges is compelled to run from Court to Court and to gather vp 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 mightie disorder in a common wealth thus to iumble one Iurisdiction with another the very confusion as well of the one law as the other for as kingdomes are preserued by knowing their bounds and kéeping their lymits so also Iurisdictions are maintained and vpheld by containing themselues within the lists or banks of their authoritie Further vnlesse they will graunt there is an Ecclesiastical custome as there is a Seculer Custome and that the one is as well to be tryed in the one Court as the other is in the other they will make their owne Doctrine in the before-rehearsed Prohibition void where they certaine vs there is a Seculer Custome and if there be a Seculer custome then doubtlesse there is also an Ecclesiasticall or spirituall custome for the word Seculer is not put in that place absolutely Glos in Clem. vnâ—â—a in verbo aterna â—teâ— de summa trinit f de catholica but relatiuely and the nature of Relatiues is one to put another one to remoue another but by the Seculer custom they but the Ciuilian therfore they grant him the spirituall for of contrarie things there are contrarie reasons and contrarie effects and what that which is proposed doth worke in that which is propounded the same againe that L. Fin. § pâ—us â—â—tem de legatis 3. ibi Angel 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 intermedle therin so also Ecclesiasticall Lawyers are to deale in Ecclesiastical causes and that temporal Lawyers are not to busie themselues thereabout And that this was the intent of the king when he first receiued the Church into his protection with all the priuiledges therof may appeare hereby that hauing vnited both the Iurisdictions in his owne person hee did not iumble them both together as now they are but kept them distinct one from the other not only in authorising the Ecclesiasticall Courts that were before but also in vsing the verie words and phrases that the Iurisdictionaries Ecclesiasticall did vse euery where in their writings euen these words whereupon men now take hold to frame Prohibitions vpon viz. according to the laudable customs vsages of the parish and places where such Tythes growe which were the words of Innocent the third in the Decretals vpon the title of Tythe long before these statuts were made or any other statuts concerning the true payment of tyths and Linwod in the same title of tithes often vseth the very selfe same words and phrases that the other doth so that if these words made no Prohibition before the statute as I think it cannot well be shewed to the contrarie neither ought they to do it now since the statute for that they are taken still in the Church businesse and not in a temporall matter whose gouernment although it be vnder one and the selfe same Prince that the Temporall state is yet is it distinct from the same as euer it hath bin since there hath bin any setled forme of Church gouernment many common 1. Corinth 5. wealth as may appear both by the example of S. Paul which neuer goeth to any temporal power to punish the incestuous person although there were sundry lawes then both in Gréeke and Latine written of these matters but doth it by the spirituall sword alone and also by that that in matters of Iar for worldly causes betwéen brother and brother he forbids such as were new Christians to go to law before 1. Corinth 6. Infidels but aduiseth them rather to appoint Iudges among themselues to decide such controuersies which albeit in those daies was ment as wel 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 another 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 Iurisdiction was againe diuided and as there were Seculer Courts appointed by Princes wherin Temporal mens causes and Lay businesses were heard so there were also by the same authoritie erected Ecclesiasticall Courts and Bishops C. de episcopall audienta tâ—rtis audiences wherin either Ecclesiasticall mens causes alone or such as they had against Lay men or Lay men against them were treated of and determined So that this was no new deuise of Henry the eight or Edward his sonne that when they tooke vpon them the supremacie ouer the Church as they had before ouer the common wealth they did not mishmash both the states together and made one confused heape of them both but left them seuered as they found them only affording either of them an equall proportion of protection for that by these two parts the kings Monarchie is compleat and himselfe is the head and chiefe Gouernour of the whole and entire bodie of his Realme For this was exemplaried vnto them in all former ages since the Church and common wealth had any louing and kind cohabitation together as hath béene before remembred And therefore doe they wrong to the ashes of those kings deceased which by subtill sence and strained interpretations draw these Lawes which they intended for the benefit of the Church and Church gouernment to the ouerthrow of the same as though the Positiue Lawes of the kingdome could not stand if the Lawes of the Church continued and stood vp right Vpon the same words of the same Statute if perhaps at any time there grow any controuersie about the limits or hounds of Parishes they draw the same by like importunitie from the triall of the Ecclesiasticall Law vnto the Common Law auouching the same also to bee of the Temporall cognisance and yet Linwod who liued in the daies of Henry the fift making a Catalogue of the principall matters that in his daies belonged vnto the Ecclesiasticall Courts reckoneth the bounds of Parishes for one And very like it is it should so be for that Ecclesiasticall men first in this Kingdome made diuisions of Parishes as by our owne Cronicles it appeareth and the first practise thereof within this Realme came from Honorius the fourth Archbishop of Canterbury after Augustine who himselfe died in Registro Eccle. XpÌ„i Cant. Stow. the yere of our Lord God 693. although otherwise the thing it selfe be more auncient and discends from the councell of Saint Paul he gaue to Titus to appoint Elders in euerie Citie but that Cities and Countries againe are
that ten is the pefection of the other numbers vnder ten for that all the rest of the Digits when they come to ten returne backe againe to ten and are multiplyed by the coupling of themselues with ten yet where is this proportion betwéene Christ and ten in the Scripture that should make this Ceremony which if it cannot be found any where nor any consent of the primitiue Church shewed for it as I thinke it cannot bee then may it with as good authoritie bee reiected as it is receiued For albeit Thomas Aquinas himselfe were tâ—aâ—med a Seraphical Doctor that is such a one as had a sence in the vnderstanding of the holy Scripture aboue all others of his age and that he did much profit the study of Diuinitie with his wittie distinctions yet is not his authoritie such that it must prcuaile in cases of Diuinitie without the authoritie of the scripture the consent of the ancient fathers of the primitiue Church interpreting this péece of Scripture in that sence as he doth which wold make aswéet harmony if it might be had And therefore as to my poore sence better said a learned Iunâ—us in 2. c. 3. Genâ—sâ—â—s man of our time to this point writing vpon the Sabbaoth day in the second of Genesis which may be also proportionably vnderstood of the tenth for that they were both before the Law in their very number and were but repeated by Moses vnder the Law because they had bin approued by God before the Law in the selfe same numbers and that which he saith of the Sabbaoth is this that albeit it hath a Ceremoniall designation of the day that is that it doth figure vnto vs our perpetual rest which we shal haue in heauen after that there is a new heauen a new earth yet there is therin two parts the one naturall the other positiue as that God should haue a seuenth day of worship this is Naturall therfore doth remaine because it is perpetuall but that this seuenth day of the Lords worship shold be the seuenth day after the Creation of the word this was positiue therfore was changed by the Apostls blessedmen of the prsmitiue church into the seuenth day after the resurrection of our Sauiour Iesus Christ which as it is verified by him in the Sabbaoth so may it be in like sort vouched by like reason in the tenth wherein also by like semblance there are two parts the one naturall the other positiue The naturall is this that God out of all the fruits of the earth the increase of cattell that are worthy of him and fit for mans vse should haue a tenth both in the acknowledgement of his vniuersall gouernment ouer vs and also for the prouision of his ministers therfore this remaineth and in that sence imediatly after the dissolution of the Iews policie the good Christians of the Primitiue Church as soone as they could get any outward forme of a Church peace from persecution receiued it in the very quotitie as a thing no lesse belonging to their ministers than it did appertain to the priests and Leuites of the Law But that the Lord annexed these tyths by Moses to the Priests Leuits for their maintnance during the time of the dispensing of the mysteries vnder the law this is positiue therfore changed by the good christians in the primitiue church from the Iews Ecclesiastiques to the Christian Ecclesiastiques Neither can it be thought this number came from the Iudiciall part of the Law as a fit proportion to maintaine one Tribe out of the reuenewes of the other eleuen Tribes for that this number or quotitie was reuealed to be Gods long before the Law and before there was any such diuision of Tribes among the people of Israell which yet were not but were parted afterward by Moses into families according to the number of the Twelue sons of Iacob And therefore it is not to be presumed that the Law which came long after imprinted a forme vpon that which was so long in being before there was any Law or ceremonie But as the Apostles or prime-Christians whenas they did first change the day of the Sabbaoth by diuine inspiration or otherwise from the day of the Creation to the day of the Resurrection durst not substitute any other day into the place of the first day than a seuenth for that the Lord had reuealed his pleasure in many places of the Scripture as concerning that number for his day of worship so that no other day could be appointed for his day of worship than a seuenth So neither durst the good Christians of the Primitiue Church moued no doubt with no other instinct than the other were when they translated this prouision of tythes for their ministerie from the Iewish Church vnto their owne Church change the number of ten into another number beside more or lesse For that God had no lesse manifested his will in sundry parts of the Scripture as concerning this number to be a number for the maintenance of his ministerie than he had declared his pleasure as concerning that other number to be a day for his honour chalenging it euerywhere in the Scripture in the very quotitie for his owne right and counting it robberie if it were at any time withholden from him And therefore it may be well thought the Schoole-men herein did great wrong to the Church who by their quaint distinctions brought this certaintie to an vncertaintie which is no where to be found in the Scripture Which I am more bold to speak for that I sée some haue trod this path before me and shewed by good demonstration that the turning of this quotitie into a competencie is a thing nothing warrantable by the word of God but that the quotitie ought stil to stand as a perpetuall right due to God and his Church But hereof hitherto And so hauing passed ouer this whole prouiso of Law Statute Priuiledge Prescription and Composition I might well leaue the turning of this stone any more but that yet there remaineth one Prohibition of prescription to be handled which in my fancie is worse than all the rest for that it draweth away from the Parochian Church her maintnance and transferreth it vpon lay men and that which worse is it makes Bishops to be instruments hereof who are to be Patrons and defenders of Churches and not pillers or powlers of the same And yet the authors thereof doe imbrace it and kisse it as a golden birth or as if that Iuno her selfe had béene present at the Natiuitie thereof And the deuise is this A Bishop being owner of a Manor yet not diuided into Tenancies nor hauing any Parsonage erected vpon it ordeineth the one and diuideth out the other here the Bishop being seised in the whole Manor before the said diuision because he is a clergie man is supposed to be in possession aswel of the Tythes as of the Manor it selfe and therefore after creating a
daies after Sentence giuen or within ten daies after the Notice is come to the partie against whom the Sentence did passe vnlesse there attend thereon a continuall griefe in which case a man may appeale so long as the griefe indures the time to aske Dunissorie Letters is thirtie daies from the Sentence giuen the time to present the same to the Iudge is at the discretion of the Iudge from whom the time of prosecuting the same is a yeare or vpon iust cause two yeares in which time if the sute bee not ended the cause is deserted and to be sent back vnto the Iudge from whom the Appeale was first made while the Appeale hangeth nothing is to be innouated because by the Appeale the Iudges hands are as it were bound but if the former Sentence were void by law as in sundry cases they are then there néedeth no Appeale for such Sentences neuer passe into a case Iudged Appeales in criminall cases cannot be iustified by a Proctor but it is otherwise in Ciuile causes An Appeale in one cause doth not exempt the partie appellant from his own Iudge in other causes If the appellant die during the time of the Appeale and leaue no heire behind him the Appeale ceaseth but if he leaue an heir behind him the matter of the Appeale concernes none but himselfe he is not to be compelled to follow it for euerie one may renounce his owne suite but if it concerne the Exchequer or any other bodie then may hee be compelled to follow it The Exchequer is the Princes Treasurie and the patrimonie of the common wealth and hath many singuler prerogatiues which priuat men haue not Such as are taken captiue by the enemy become their seruants who haue taken them vnlesse eyther they escape home againe themselues or be ransomed by their friendes in both which cases they recouer all right and priuiledges they had in their owne common wealth before By the Law all Subiects whatsoeuer are bound to serue the common wealth in warre insomuch that if any being prest withdraw himselfe or his child from it he is to be counted as a rebell and for his punishment is to be banished and mulcted or fined in the greatest part of his goods As the priuiledges and rewards of Souldiors were many to incorage them to vertue and manhood so their shames and punishments were great to feare them from cowardice and vice But among the rest of the priuiledges of Souldiors the old Souldiors were the greatest Of Subiects some dwelt in Shires and liued after their owne Lawes and yet neuerthelesse were made partakers of the honors of the Citie some other were inhabitants onely in the common wealth and had onely a house in the same place to dwell in and had no right to beare office some other were straungers brought in which were ruled by the Law of them among whom they dwelt Amongst those that dwelt in Shires the chiefest Magistrate was he whom they called Decurio who was not sent by the people of Rome thither for he was a Magistrate of Magistrates but elected by the people there and his office was to kéepe the treasurie of the Countrey to prouide victuall exact tribute and gouerne the state there in maner as our Shirifes doe here His office was onely annuall least by libertie and lust of gouernment and continuance thereof it might grow into a tyrannie Such as are Subiects are to serue the common wealth in such offices places and seruices as their abilitie is fit for and the necessitie of the common wealth requires The seruices of the Common wealth were of thrée sorts Patrimoniall such as belong to euery mans patrimony to performe which stood chiefly vpon payments and charges which were to go out of euery mans inheritance towards the performance of such burthen as lay vpon him by law custome or commaund of him that had power thereto Personall which were to be performed by the care and industrie of the partie and his corporall labour without expence of his purse Mixt which required both care of the mind and labour of the bodie and expence of the purse and are imposed aswell in consideration of the thing as the person which euery subiect is to vndergo vnlesse by the Law or by the indulgence of the Prince they are excused as some are excused by reason of olde age some by yong age some for their dignitie some for their calling some for their state of bodie some for that they serue in the necessarie seruices of the Common wealth at home or abrode as Imbassadors doe some for that they are necessary places of seruices for Gods Religion as cathedrall Churches other Churches are some for that they are good and necessarie places for Seminaries for the Common wealth for learning and such other imployments as Colledges Societies and Schooles of learnings and nurture are Legates and Imbassadors had immunitie from all publike seruices not only the time of their embassage but also two yeare after their returne They were called Legates in that they were chosen as fit men out of many their person was sacred both at home and abrode so that no man might lay violent hands on them without breach of the Law of Nations Such as are Magistrats of cities ought so to gouerne that no negligence may be iustly imputed vnto them otherwise they are to answere it and that when their office is expyred they giue vp a iust accompt both of what they haue receiued what they haue laied out pay in the residue if there be any Gouernors of Cities together with the consent of the Burgesses therof may set downe such orders and decrées as are for the benefit well ordering thereof which are to be obserued of all those which are Inhabitants therof and being once wel and duely set downe are not to be reuersed but to the good of the Citie or Comminalty New publike works such as are good for the Common weale euery one may make without the leaue of the Prince vnlesse it be done for emulation or cause of discord but for old works in which stands the securitie of the Common wealth as Castles towers gates and wals of Cities nothing is to be done or innouated in them without the Princes warrant neyther is it lawfull for any man to graue his name in any publike work vnles it be his at whose cost the work is done Faires are authorized by Princes only are inuented for trade of marchandize vttering of wares which Countrymen haue cause to buy or sell and haue their priuileges that no man in any Faire can be arrested for any priuat debt they are called Nundinae therupon that euery ninth day they were holden either in one place or other He that for x. yeares space intermitteth to vse his Fayre loseth the priuiledge therof If any make any promise to a Citie or Common wealth to do any thing vpon certain cause as that he might be made Consul or that
whereof I said there was no special Tractat in the Digest sauing that it deuideth the publike right into that which concernes the Church and Church men the Magistrates of the Common wealth prosecuting the latter branch thereof only omitting the first because out of that heathenish Religion which was vsed in those ancient Lawyers daies and those supersticious Rites whereof their Bookes were full nothing could be taken that might serue for our Religion wherupon he instituted a new discourse thereof in the Code beginning first with the blessed Trinitie one in essence and thrée in person wherein he sets downe a briefe summe of our Christian faith agréeable to the doctrine of the Prophets Apostles and the fower first generall Counsels the Nicene Constantinopolitan Ephesine and Calcedon forbidding any man publikely to dispute or striue thereabout taking occasion vpon the Nestorian Heresie which not long before had sprung vp and had mightily infected the Church which Iustinian by this confession of Fayth so published to the whole world and penall Edict ioyned thereunto hoped to represse After he hath set downe a full and sound confession of the Christian faith conformable to the Primitiue Church next he addeth a title of the holie Church it selfe and of her priuiledges which either concerne Ecclesiasticall mens persons themselues 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 degrées 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 saue the worth of the person onely and the rights of holie places Priests are so called because they were consecrated and as it were seuered from the rest of the people and giuen vp to God which also were called Elders eyther because they were so in age or ought to be in such manners and carefull cariage of themselues Amongest Priests or Ministers Bishops haue the first place who are as it were the Ouerseers and Superintendents of the rest so called of their watchfulnesse care labour and faithfulnesse in teaching the people and doing other dueties which they owe vnto the Church The lowest degrée of men among the Ecclesiasticall hierarchy were the Clarkes so called of their lot by which they were chosen and allotted to Gods seruice To Bishops Priests and other of that rank did appertaine 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 other like miserable persons therefore together with the title of Bishops Clarks is ioyned the title of Hospitals or Almes-houses In place next after the Bishops themselues comes their power audience for albeit the chiefest office of a Bishop is to instruct the people in the doctrine of the word in good example of life yet forasmuch as all will not be obedient vnto the word neither brought by the persuasion thereof to good nurture to be kept in order the eminency of the degrée wherin the Bishops are placed is not sufficient to kéepe the people in obedience without some power iurisdiction and because the Church it selfe is the mother and maintainer of Iustice therefore there is by the Emperor himselfe and his predecessors as many as professed Christianitie certaine peculiar iurisdictions Ecclesiasticall assigned to the Bishops more worthy then the Ciuill ouer persons and causes Ecclesiasticall such as touch the Soule and Conscience or do appertaine to any charitable or godlie vses and ouer the Laitie so far forth as eyther the Laitie themselues haue bin content to submit themselues vnto their gouernment that is so far as eyther it concernes their Soules health or the outward gouernment of the Church in things decent or comly or that it concernes poore and miserable persons such as widowes orphans captiues and such other like helplesse people are or where the Ciuile Magistrates cannot be come by or doth voluntarily delay iudgement in all which anciently a Bishop was to performe double fayth and sanctitie first of an vncorrupt Iudge and then of a holy Bishop But in many of these matters in these dayes the Laitie will not suffer themselues to be controld and therefore hath taken away most of these dealings from them yea euen in charitable causes Immediatly followeth a title of Heretickes Maniches Samaritans Anabaptists Apostataes abusers of the Crosse of Christ Iewes and worshippers of the hoast of heauen Pagans and of theyr Temples and Sacrifices whom the Bishop is not only to confute by learning but also to suppresse by authoritie for he hath not the Spirituall sword in vaine The Heretickes Iewes and Pagans shall not haue Christian men and women to be their seruants that such as flie to the Church for Sanctuarie or claime the ayde thereof shall not be drawen from thence vnlesse the offence be haynous and done of a pretensed and purposed malice in which case no Immunitie is to be allowed them but wicked people are to be punished according to their desert agréeable to the word of God it selfe which would not haue his Altar be a refuge vnto the wicked And so far of that part of publike right which appertayneth to the Priestes or Ministers and their Function which was omitted in the Digest but prosecuted in the Code Now it followeth that wyth like breuitie I run ouer the thrée last Bookes of the Code which themselues were rather shadowed in the Digest in the title of the right of the Exchequer then in any iust proportion handled 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 vnto them or that they are forfeyted by any offence worthie 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 carrieth it away and how the same may be reuoked vnlesse all rights and ceremonies bee solemnly performed therein How things that are in Common betwéen the Exchequer and priuat men may be sold and that the Exchequer euict nothing that it hath once sold for that it were a thing against the dignitie of the Exchequer would terrifie priuat men for bargaining with it Of those that haue borrowed money out of the publicke receipts and what penaltie they incurre if they repay it not at their daies couenanted sometimes the forfaiture of foure double of that they haue borrowed sometimes danger of life it selfe That in cases of penalties the Exchequer be not preferred before such as the Offender was truely indebted vnto but that they be first serued and then the Exchequer haue onely that which is left What vsurie the Exchequer may take that is for money lent and not for such sums as grow out of Mulcts and
and change of life and who is to succéed them in their goods and inheritance Of Bishops and Clerks that is that Byshops and Clerks be of good fame of competent learning and age and that they be ordeyned and promoted without Symonie or briberie or the iniurie of the present Incumbent And that there bée a set number of Clerkes in euery Church least the Church and Parishioners thereby be ouer charged The second Collation treateth of the Churches state that the lands of the Church be neyther sold aliened nor changed away but vpon necessitie or that they be let to farme for a time or vpon other iust cause no not with the Prince himselfe vnlesse the change be as good or better than that which he receyueth from the Church and if any man presume contrarie to this forme to change with the Church hée shall loose both the thing hee changed and the thing he would haue changed for it and both of them shall remayne in the right of the Church And that no man gyue or change a barren peece of the ground with the Church That Iudges and Rulers of Prouinces be made without gifts of their office power authoritie and stipend and that they sweare they shall so sincerly and vprightly execute their office as knowing they shall giue an accompt thereof to God and the King which oath they shall vndergo before the Bishop of the place and the chiefe men of that Prouince whether they are sent to be Iudges or Gouernors Of the Masters of Requests and their office which offer to the Prince suters Petitions and report them back from the Prince vnto the Iudges Of wicked and incestuous Marriages and that such as marrie within those degrees forfeit all that they haue vnto the Exchequer for that when they might make lawfull Marriages they rather choose to make vnlawfull Marriages The third Collation contayneth matter against Bawdes that they be not suffered in any place of the Romane Empire that being once warned to forbeare their wicked profession if they offend therein againe they die the death therefore If any man let any house to a bawd knowing him to be a bawd that he shall for fait x. li. to the Prince and his house shall be in danger to be confiscated Of Maiors and Gouernors of Cities that such be chosen that be honest people and men of credit and that no man of the Citie being thereto chosen refuse the same and that such as are therto chosen shall swears they will procéed in euery matter according to Law and conscience That there be a certaine number of Clerkes in euery Church and that it be neyther diminished nor increased and therfore that there be a translation of those that abound in one Church into an other Church that wanteth The precepts which Princes gaue to Rulers of Prouinces were these in offect that whereas themselues were fréely chosen thereunto they should in due sort and order go into their Prouinces that they should kéepe their hands pure from bribes that they should carefully looke vnto the Reuenues of the Exchequer and the peace and quiet estate of the Prouince represse outrages and rebellions procure that causes be ended with all indifferency and ordinary charges to foresée that neyther themselues nor any of their officers or vnderministers doe iniurie to the people least those that should help them doe hurt them To prouide that the people want not necessarie sustenance and kéepe the walls of the Citie in reparation that they punish offences according to the Law without respect to any mans priuiledge neyther admit any excuse in the examining or correcting of the same saue innocency only that they kéepe their Officers in order that they admit to their Counsell such as are good men and are milde towards such as are good and sharpe towards such as are euill that they afford not Protections to euery man neyther to any one longer than it is fit and conuenient it should be That where they remoue they vex not the Countrey men with more carryages then is néedfull that they suffer Churches and other like holy places to be a Sanctuarie to murtherers and other such like wicked men that they suffer not Lands to be sold without fine made to the Exchequer that they regard not Letters or rescripts contrarie to Law against the weale publicke vnlesse they be seconded That they suffer not the Prouince to be disquieted vnder pretence of Religion heresie or sch sme but if there bee any Canonicall or ordinarie thing to be done they aduise thereabout with the Bishop that they do not confiscat the goods of such as are condemned that they patronize no man vniustly that no man set his Armes or Cognusance vpon another mans Lands neither that any carrie any weapon vnlesse he be a Souldier What is an hereditarie porcion and how children are to succéed of such as deny their owne hand writing and how they are to be punished as well in personall as in reall actions and that such deniers after their deniall be not admitted to other exceptions and the taking away the thing in controuersie from him which denied the true owner to be Lord therof The fourth Collation handleth matters of Marriage and that marriage is made only by consent without either lying together or instruments of dowrie Of women that marry againe within the yeare of mourning which by Law in sundry sorts was punished for confusion of their issue that there be an equal proportion in the Dowrie and the Ioynture Of Diuorce and separation of marriages and for what causes by consent for impotencie for adulterie and that Noble women which after the death of their first husband being noble personages marrie to inferiour men shall loose the dignitie of their first husband and follow the condition of their second husband Of Appeales and within what time a man may appeale and from whom and to whom the appeale is to be made That none which lends money to an husbandman take his land to morgage and how much vsury money a man may take of an husbandman Of her that was brought to bed the eleuenth moneth after her husbands decease and that such as are borne in the beginning of the same moneth are to be accompted for Legitimat but such as are borne in the end therof are to bee holden for bastards Of instruments and their credit and that in euery instrument there be protochols left that is signes and notes of the time when such a contract was made and who was notarie and witnesses to the same and that after it bee written faire and ingrossed in a lidger or faire mundum Booke The fift Collation forbiddeth the alienacion or selling away of the immoueable possessions of the Church vnlesse it be done vnder certaine solemnities and then only when the moueable goods are not sufficient to pay the debts of the Church or holy place Further it prouideth that the name of the Prince for the time being be put
man more than for 30. yeares or 3. liues vnlesse eyther the houses be so ruynated that they cannot be repayred without great charges of the Church or other religious houses or that it be ouercharged with any debts or dueties belonging to the Exchequer and thereby there commeth small reuenue to the Church or Religious place thereout in euery of which cases it is lawfull to let out the same for euer reseruing a yearely competent rent other acknowledgements of other souerainties therein That the holie vessels of the Church be not sold away vnlesse it be for the ransoming of Prisoners or that the Church be in debt in which case if they haue more holy vessels than are necessary for the seruice of the Church they may sell those which are superfluous to any other Church that néedeth them or otherwise dispose of them at their pleasure for the benefit of the Church or other holy place whose they are Where Vsurie in processe of time doth double the principall there Vsurie for the time to come doth cease and those particuler payments which afterwards do follow are reckoned in the principall What kind of men are to be chosen Bishops such as are sound in faith of honest life conuersation and are learned that such as choose them sweare before the choice they shall neyther choose any for any reward promise friendship or any other sinister cause whatsoeuer but for his worthynesse and good parts only That none be ordeined by Symonie and if there be that both the giuer taker and mediator thereof be punished according to the Ecclesiasticall Lawes and they all made vnworthie to hold or inioy any Ecclesiasticall liuing hereafter That if any at the time of any Bishops election obiect any thing against him that is to be elected the election be staid till proofe be made of that which is obiected by the aduersarie against the partie elected so that he prooue the same within 3. Moneths and if any procéeding be to the consecration of of the same Bishop in the meane time it is void That the Bishop after he is ordeyned may with out any danger of Law giue or consecrate his goods to the vse of the Church where he is made Bishop and that he may giue such fées as are due to the electors by Law or custome That Clerks be not compelled to vndergoe personall functions and seruices of the common wealth and that they busie not themselues in seculer affaires so thereby be drawen from theyr spirituall function That Bishops for no matter or cause be drawen before a temporall Iudge without the Kings speciall commaundement and if any Iudge presume to cal any without such speciall warrant the same is to loose his office and to be banished therefore That no Bishop absent himselfe from his Dioces without vrgent occasion or that he be sent for by the Prince and if any doe absent himselfe aboue one yeare that he shall lack the profit of his Bishopricke and be deposed from the same if he retorne not againe within a competent time appointed for the same What manner of men are to be made Clerks such as are learned are 〈◊〉 good Religion of honest life conuersation and are frée from suspition of incontinency that no Minister be lesse then 35. yeares of age and that no Deacon or Subdeacon be vnder 25. that all Clerks and Ministers be ordeyned fréely If any build a Church and indow the same that he may present a Clerk thereto so that he be worthy to be admitted therto but if he present an vnworthy man then it appertaineth to the Bishop to place a worthy man therein If any Clerke be conuicted to haue sworne falsely he is to be depriued his office and further to be punished at the discretion of the Bishop That Clerks be conuented before their owne Bishops and if the parties litigant stand to the B. order the Ciuill Iudge shal put it in execution but if they agrée not vpon the iudgement then the Ciuill Iudge is to examine it eyther to confirme or infirme the B. order if he confirme it then the order to stand if not then the party grieued to appeal If the cause be criminall and the Bishop find the party guiltie then the Bishop is to degrade him and after to giue him ouer to the seculer power the like course is to be held if the cause be first examined before the temporall Iudge and the partie found guiltie for then he shall be sent to the Bishop to be depriued and after againe shall be deliuered to the seculer powers to be punished That Bishops be conuented before their Metropolitans That such as in Seruice time do abuse or iniure the Bishop or any Clerk in the Church being at diuine Seruice be whipt and sent into banishment But if they trouble thereby the diuine Seruice it selfe they are to dye the death for the same That Lay men are not to say or celebrate diuine Seruice without the presence of the Minister and other Clerkes thereto required That such as goe to Law sweare in the beginning of the suit that they haue neyther promised or will giue oght to the Iudge and that vsuall fées be taken by the Aduocates Counsellers Procters or Attournies if any man take more than his ordinary fées he shall be put from his place of practise and forfeit the foure double of that he hath taken That the 4. generall Councels be holden as a Law and that which is decréed in them That the B. of Rome hath the first place of sitting in all assemblies and then the B. of Constantinople That all Clergie mens possessions be discharged from all ordinary and extraordinary payments sauing from the repairing of Bridges and High wayes where the said possessions do lye That no man buyld a Church or holy place without the leaue of the B. and before the Bishop there say Seruice and set vp the signe of the Crosse That no man in his owne house suffer Seruice to be said but by a Minister allowed by the Bishop vnder paine of confiscating of the house if it be the Lord of the house that presumeth to doe it or banishment if it be done by the tenant If any bequeath any thing to God it is to be paied to the Church where the Testator dwelled If any deuise by his last Will a Chappell or Hospitall to be made the Bishop is to compell the Executors to performe it within fiue yeares after the decease of the Testator and if the Testator name any gouernor or poore thereto they are to be admitted vnlesse the Bishop shall find them vnfit for the roome That the Bishop sée such Legacies performed as either are giuen for the redemption of Prisoners or for other godly vses That Masters of Hospitals make an accompt of their charge in such sort as Tutors doe That such as lust against nature and so become brutish receiue condigne punishment worthy their wickednesse That such as
Nephew And thus much of succession of kings wherein the eldest among Males hath the prerogatiue and the like in Females if there be no Male for that a Kingdom is a dignitie vndiuisible and can come but to one bee hee Male or Female for that otherwise great gouernments would soone come to small Rules and Territories And the like that is said of Kingdoms is to be held of all Dignities vnder Kingdomes where the eldest son is to bee preferred before all his other brethren and they successiuely one before another if there be no issue left of them that goe before and the Male line is to be preferred before the Feminine and the Feminine before all the rest of the kindred so it be not a Masculine Feud and the same intailed vpon the heire Male. And thus far as concerning the matters wherein the Ciuile Law dealeth directly or incidently within this Realme Now it followeth to shew how much of all those titles of the Canon Law which haue bin before set downe are here in practise among vs. Of those Titles of the Canon Law which before haue béene recited some are out of vse here with vs in the singular or Indiuiduum by reason of the grosse Idolatry they did containe in them as the Title of the authoritie and vse of the Pal the title of the Masse the title of Reliques the worship of Saints the title of Monks and Regular Canons the title of the kéeping of the Eucharist and Creame such other of like qualitie but yet are retained in the generall for in stead of them there are substituted in their places holy worships tending to the like end of godlinesse those other did pretend but void of those superstitious meanes the other thought to please God by and so in stead of the Masse hath come in the holy Communion and in place of worshipping of Saints hath succeeded a godly remembrance and glorifying of God in his Saints and so of the rest whereof there is any right vse within the Church Some other are out of vse as well among the Ciuile 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 Giuing by déed of gift of Detecting of Collusion and Cosenage of Murder of Theft and receiuing of Théeues and such like And yet I doubt not but euen these matters as well Ciuile as Criminall or most of them were aunciently in practise and allowed in Bishops Courts in this Land among Clerkes to the which I am induced by three reasons First that I find not only the forraine Authors of the Decretals but also the domesticall Authors of the Legantines being all most excellent wise men as the Stories of their seuerall ages do report to haue inacted these seuerall constitutions and to haue inserted them not onely in the bodie of the Canon Law but also in the bodie of the Ecclesiasticall Lawes of this Land and that some wise men sundry years after their ages did write and comment vpon the same as things expedient and profitable for the vse of the Church and the gouernment of the Clergie in those daies neither of which I doe presume they would haue done if in those ages there had not béene good vse and frée practise of them Secondly that I find in the Code of Iustinian by sundry Laws some of his own making some other of other Emperors before his time euen from the daies of Constantine the great bishops in their Episcopall audience had the practise of these matters as wel Criminal as Ciuile and to that end had they their Officials or Chauncellors whom the Law calleth Ecclesiecdici or Episcoporum Ecdici that is Church Lawyers or Bishops Lawyers men trained vp in the Ciuile and Canon Law of those ages to direct them in matters of Iudgement as well in Ecclesiasticall Criminall matters as Ecclesiasticall Ciuile matters And that these which now are Bishops Chauncellers are the verie selfe same persons in Office that aunciently exercised Ecclesiasticall Iurisdiction vnder Bishops and were called Ecclesiecdici it may appeare by that which Papias an old auncient Historiographer cited by Gothofred in his Annotations vpon the foresaid Law Omnem in the Code and title de Episcopis and Clericis and vpon the § Praeterea writeth of them who saith thus that Ecclesiecdici or Ecdici were those that were ayders and assisters to the Bishops in their Iurisdictions not astrict or bound to one place but euery where through the whole Diocesse supplying the absence of the Bishop which is the very right description of the Bishops Chauncellers that now are who for that they carrie the Bishops authoritie with them euery where for matters of Iurisdiction and that the Bishop and they make but one Consistorie are called the Bishops Vicars generall both in respect their authoritie stretcheth it selfe throughout the whole Diocesse also to distinguish them from the Commissaries of Bishoppes whose authoritie is onely in some certaine place of the Diocesse and some certaine causes of the Iurisdiction limitted vnto them by the bishops and therefore are called by the Law Iudices or Officiales foranei as if you would Clem 2. ca. foraneos de rescript say Officiales astricti cuidam foro diocesis tantum So that it is a very méere conceit that a certaine gentleman very learned and eloquent of late hath written that Chauncellers are men but of late vpstart in the world and that the sloth of bishops hath brought in Chauncelors wheras in very déed Chauncellers are equall or néere equall in time to Bishops themselues as both the Law it selfe and Stories do shew yea Chauncellers are so necessarie Baldus l. aliquando ff de officio Proconsulis officers to Bishops that euery Bishop must of necessitie haue a Chaunceller and if any Bishop would séeme to be compleat within himselfe that he néeded not a Chaunceller yet may the Archbishop of the Prouince wherein he is compell Couar lib. 3. variarum resolut c. 20. num 4. S. Brâ—zâ— lâ—b 1. de vicaâ—â—o 〈◊〉 q. 46 nâ—m 1. 4. 12. 13. him to take a Chaunceller or if he refuse so to doe put a Chaunceller on him for that the Law doth presume it is a matter of more weight than one man is able to susteine to gouerne a whole Diocesse by himselfe alone and therefore howsoeuer the nomination of the Chaunceller be in the Bishop yet his aucthoritie comes from the Law and Hostiensis in sum made officio Vicarij numoro 2. in sine nomirationem ab 〈◊〉 potestatem vero a iure recipiuntur therefore he is no lesse accompted an Ordinary by the Law than the Bishop is But trueth it is not the sloth of the Bishops but the multitude and varietie of Ecclesiasticall causes brought them in which could not be defined by
Law or no for it oftentimes falleth out notwithstanding the Will be lawfully prooued before the Ordinarie yet the bequests are not good eyther in respect of the person to whom the bequests are made or in respect of the thing that is not deuisable in all or in part as by the Common Law lands in Capite cannot be deuised more than for two parts but in Socage the deuise is good for all And by the Custome of the Citie of London some other places of the land a man can bequeath no more than his deathes part and if he do his bequest is void for the rest but in other places of the land a man may bequeath all By the Ciuile Law a man can bequeath nothing to a Traytor or an Hereticke or an vnlawfull Colledge or Companie vnlesse perhaps it be for the aliment or maintenance of them in extreame pouertie that they dye not for hunger which is the worke of charitie and if he doe the legacie thereof is void to all intents purposes So then the Probate of the Ordinarie in matters of land neyther helpeth nor hindreth the right of the deuise it selfe but is a declaration only of the dead Mans doome vttered before such and such witnesses which taketh his strength not so much from the Probat as from the Law and is testified only by the Probat that the same was declared by the Testator in the presence of the witnesses therein named to be his true Last Will So that no man herein is to be offended with the Ordinary as presuming of a matter not appertayning vnto him for this testification in all Law conscience doth belong vnto him to giue allowance so far vnto tho defuncts Will as it is auouched before him to be his last act and déed in that behalfe but rather they are in this case to thank the Ordinary that he by that act of his hath preserued the memorie of that which otherwise perhaps would haue bin lost perished to the great hurt of the Common wealth and others which haue priuate interest therein Of all matters that appertain to the Ecclesiastical Courts ther is no one thing that the Princes of this land haue made more carefull prouision for since there was any Church gouernment in this land than that all maner of Tythes due by the word of God should be fully truely paid vnto their Parish Churches where they grew if they were denied should be recouered by the Law of holy Church For first before the Conquest king Athelstone made a Law that euery man Polychronicon should pay his Tythes to God in maner as Iacob did who made a vow to God If God would bring him back againe to his countrie he would when he retorned home pay tythes to God of all that God should giue him the like did king Edgar king Edmund commaunding that those which wilfully refused to pay their tithes should be excommunicated William Conqueror as Roger Houenden reporteth in Houenden part 2. cap. de Decimis ecclesiae the 4. yeare after his conquest hauing got some time of rest from warre setling of rebellious spirits who kicked at his gouernment at home entred into a consideration of the well ordering of the Church and Common wealth by wholsome Lawes therefore by the aduise of his Counsell let call all the great Prelates Potentates of this Land with twelue other sufficient men of euery Shire experienced in the Laws and customes of the Land that he might by them learne by what Lawes customes the land was gouerned before himselfe came to the Crowne thereof straitly charging commaunding them vpon his high displeasure they should make true report to him therof without adding any thing thereto or taking any thing therefro who beginning of the Lawes of holie Church because by it the King and his throne are established among other Lawes and liberties of the Church recorded this for one which I will verbatim set downe in Latin as it is penned by the Author De omni Annona decima garba est Deo reddita ideo reddenda Si quis gregem Equarum habuerit pullum reddat decimuÌ„ qui vnam tantum vel duas habuerit de singulis pullis singulos denarios praebeat Similiter qui plures Vaccas habuerit decimum vitulum qui vnam vel duas de singulis vitulis singulos denarios qui caseum fecerit det decimuÌ„ Deo et si non fecerit lac decima die Similiter Agnum decimuÌ„ vellus decimuÌ„ Butyrum decimum PorcelluÌ„ decimum De Apibus vero similiter decimuÌ„ commodi quinetiam de bosco de prato de aquis de molendinis viuarijs piscarijs virgultis hortis negotiationibus omnibus rebus quas dederit Dominus decima pars ei reddenda est qui nouem partes simul cum decima largitur Et qui eam detinuerit per iustitiam EpÌ„i Regis si necesse fuerit ad solutionem arguatur Haec enim S. Augustinus praedicauit docuit et haec concessa sunt a Rege Baronibus populo Sed postea instinctu diaboli multi eam detinuerunt Sacerdotes negligentes non curabant inire laborem ad perquirendas eas eo quòd sufficientér habebant vitae suae necessaria Multis enim locis sunt tres vel quatuor Ecclesiae vbi tune temporis vna tantum fuit sic caeperunt minui This Augustine to whom the Conqueror here referreth himselfe was Augustine the Monke whom Gregory the great about the yeare of our Lord God 569. sent here into England to réestablish the Faith decayed by the Saxons who set down sundry ordinances for the Church framed it in vniformitie of Prayer gouernment to that as then was vsed in the Church of Rome but long before Augustins time as it may by our Stories appeare euen in the daies of king â—â—heâ—ward lib. â—nico Lucius who sent to Elutherius a Bishop of Rome for learned men to instruct him and his people in the Faith which was about a hundred and fortie yeares after the Ascention of our Lord Iesus Christ the Faith of Christ was here preached in Brytaine and fiftéene Archbishops are by our Stories Ioâ—elin of Furnes in hâ—s booke of Brittish Bishops reported one to haue succéeded an other in the Sea of London before the irruption of the Saxons into this land All which time it is not like the Churches of God that were in the land were void of this prouision for the Ministerie so Marianus Scotus that I assure my selfe the payment of Tythes was far more auncient than the time of Augustine albeit the Conqueror citeth there the authoritie of Austen rather than any former precedent of the Britans both for that the doctrine of Austen was better knowen vnto the Saxons among whose auncestors Austen taught gouerned as an Archbishop than any of the Fathers of the Brytish Church to whom the Saxons
of the Primitiue Church receyued them would néedes séek out how and in what right and in what quantitie this prouision belongs vnto the Church wherein they did by their ouermuch subtiltie rather confound the trueth than make that appeare they intended to doe By the first of these was brought in that great prescription which is called the Prescription beyond the Lateran Councell whereby Lay men held Tythes in sée wythout paying any thing therefore vnto the Church and out of that issued the rest of those pettie Prescriptions which we now haue which are nothing else but imitations of the first By the second came in Priuiledges Customes and Compositions or if they came not in wholly by them yet surely were they much strengthned by them but of eyther of these after in their places But for that of all these forenamed greeuances in the Church as far as my trading serues mée Prescription is the eldest and first rusht into the Church and violated the Liberties thereof I will first begyn thereby and shew vpon what occasion it first seysed vpon the Church and preuailed against her and then will I speak of the rest in order It is out of question that from the time of Origen who lyued within fower score yeares after the death of Saint Iohn the Euangelist as also did Cyprian who was his coequall in tyme and so along by the ages of Chrysostome Ambrose and Augustine and some of the purer Popes as Vrban the second Dyoâ—isius and Gregoue the great there was good vse of Tythe in the Churches where Christian Religion was imbraced as may appeare by euery of their testimonies that God had not appointed it to be a prouision onely for such as serued at the Altar vnder the Law but also was purposed by him from the beginning to be a maintenance for the Ministerie vnder the Gospell and therefore Origen in his xi Hemily vpon Numbers speaking of Tythes sayth thus I hold it necessarie that this Law or precept be obserued according to the letter and vpon the 22. of Mathew he thinketh Christs words vttered there as concerning Tythe to be a precept no lesse necessarie for the vse of Christians than they had bin for the Iewes and therefore he accounteth Tythe neyther ceremoniall nor Iudiciall but morall and perpetuall Cyprian in his lxvj Epistle aduiseth the Clergie of his time since they had Tythes allotted vnto them for their maintenance they should not absent themselues from Gods seruice Chrysostome vpon the viij of the Actes vseth this argument to persuade husbandmen to pay theyr Tythes truely vnto the Church that it is good for them so to doe for that there are continuall prayers and intercessions made for them by the Ministerie Ierome vpon Tymothy sayeth The precept of payment of Tythes is aswell to be vnderstood in the Christian people as in the Iewes Reade Ambrose vpon his Lent Sermon and Augustine vpon his xliiij Homily and Gregory vpon his xvj Homily and you shall finde no lesse plaine places for the continuance of the payment of Tythes among the Christians than the former were Adde to these the practise of Dionisius himselfe who by Ieromes account flourished in the yeare 266. who not only diuided out Parishes drawing the example thereof from Saint Paul who first appointed Bishops in Cityes but also assigned orderly to euerie Parish his Tythes All which held in the Christian common wealth in a decent and comely sort vntill the irruption of the Hunnes Goathes and Vandals vpon the Christian world who first inuading Italy vnder the Emperour Iustinian did for many yeares so harrow the whole Countrie and specially Lumbardie as that they left not almost a man of excellent Religion any where vnpersecuted ouerturned Churches burnt Libraries ouerthrew Schooles of learning and to be short what wickednesse did they not insomuch as Gregorie the great being otherwise a verie good man and one that did relye himselfe vpon the prouidence of almightie God verily thought and taught that the end of all things was then come but after those fierce and barbarous Hospinlandâ—â—r g. nâ—m 〈◊〉 people once set theyr face to goe against France which had beene hitherto free from that mundation which happenned in the daies of King Theodorick who liued about the 650. yeare of the Incarnation of our Sauiour Iesus Christ Charles Martel the father of Pippin after king of France being then great master of the kings house would not although otherwise he were a very victorious man and valiant Captaine oppose himselfe against them vnlesse the vnder-clergie of France would be content to resigne euery Gagniâ—â—â— lib. 4 Histor Fraâ—â— man his Tythes into his hands that thereby he might reward the Souldiour and support the charges of the war then present which the poore Clergie in respect of the eminent danger and for that Charles Martell himselfe did solemnly vow and promise that they should bee forborne no longer than for the time of the war and that they should be restored vnto them againe at the end of the war with a further gratuitie for their good wil yeelded most willingly thereunto specially the Bishops not contradicting it leauing to themselues a small portion of their liuing only during the time of the daunger Whereupon Charles Martell vndertaking the enterprize get a mightie great victorie against the enemies insomuch that hee slew in one battaile 34500. of the Infidels which battaile being happily atchiued and the danger of the war being past the poore Clergie men hoping to receiue againe their Tythes according as it was promised them by Charles Martell they were put from the possession thereof and say or doe what they could their benefices were diuided before their face in recompence of their seruice to such of the Nobilitie as had done valiantly in that action and the same assured to them and theirs for euer in fée And this is the first violence that euer Tythes suffered in the Christian world after they left the Land of Iurie and came to inhabite among the Christians which albeit was a nefarious act and nothing answerable to the late mercie that God had vouchsafed them in conquering of their enemies yet there wanted not like sacrilegious mindes in all Christian Lands which did imitate this wicked fact of Martellus insomuch as the example hereof passed ouer the Alps into Italy and mounted aboue the Pyrenie Hils into Spaine and within short time after sailed here into England in such sort as that euen to this day sundry Monuments thereof appeare euerywhere in the Land where any tytle of immunitie is challenged from payment of Tythes reaching beyond the Lateran Councell whith can descend from no other head than from this fact of Charles Martell neither was there any redresse thereof vntill the said Lateran Councell before mencioned which notwithstanding came néere fiue hundred yeares after for this fact of Martellus was done about the six hundreth and threescore yeare after the Natiuitie of our Sauiour Iesus Christ but
howsoeuer the refusal be or be not they grant out their Prohibition in these cases And yet if the Iudges Ecclesiasticall procéedings might be séene and vouchsafed to be read before them it would bee plaine there were no such cause of their hard opinion against them for euerywhere they doe allow such like allegations And if perhaps one inferiour Iudge shold make refusal as they pretend yet could it not be reformed by another in an ordinarie course of appeale but that there must néeds be brought a Prohibition out of the Common law to redresse the same vnlesse happily they can shew it is a generall conspiracie in the Ecclesiasticall Iudges or a Marime in their learning that they will not or cannot admit any Plea of discharge in this case which they can neuer doe And therefore they are to be intreated to change their opinion in this point and doe not the Ecclesiasticall Iudges that wrong as to charge them with such an imputation whereof their whole practise is witnesse to the contrarie for it is vnworthy such mens grauitie as theirs is who propound vnto themselues the inquirie of the truth in all matters thus to be misconceiued and masked in an errour and that for so many yeares and not to bee willing to heare the contrarie which is an obstinacie in policie no lesse indurat than the Papists is in Religion who see the truth and will not beleeue it And so far as concerning Prescriptions and the first cause and beginning thereof Now it followeth I speake of Priuiledges which are immunities graunted vnto priuat men beside the Law Of these some are very auncient such as true zeale toward the Church bred and the iust admiration of the holy men of God for their sanctimonie of life their great knowledge in the word of God their great patience in persecution for Christ and his Gospell the vigilancie and care they had in their Office stirred vp both in Prince and people So Constantine the great being rauished with the loue of Religion and the good opinion he had of the Ministers of his time erected Churches and endowed them with large possessions and graunted them sundry immunities whereby they might more securely intend to the preaching of the word of God and the winning of soules to the Christian congregation wherein they laboured with all their might and power God still adding to the number of the Elect. Neither did he this alone in his owne person but he also gaue leaue to all other of his subiects that would doe the like whereupon L. 1. C. de sacros Ecclesiis §. si quiâ— authent de Ecclesia the Church was so inriched within a short time that as Moses in the building of the Arke was faine to make Proclamation no man should bring in more towards the building thereof the people bringing in continually such great abundance of all things necessarie towards the furnishing thereof as that there was enough and much to spare So also Theodosius the thirtéenth Emperour after Constantine although otherwise a most louing and fauourable Prince towards the Church was faine to make a Law of Amortisation or Mortmaine to moderate the peoples bounty towards the Church as did also many wise Princes in other Nations vpon like occasion and in imitation of this Act of Theodosius many yeares after and among the rest diuerse Magna charta cap. â—6 W. 1. 〈◊〉 31. an 13. Eâ— 1. Princes of this Land did the like vpon the dotage of the people towards the Religious Parsone specially towards the foure Orders of Friers that were then newly sprung vp in the world But yet this Act of Theodosius was done with the great dislike of these blessed men Ierom and Ambrose who liued in those daies for that Ierom thus complaineth of that Law to Nepotian I am ashamed to saie it the Priests of Idols Stage-players Coach-men and Common Harlots are made capable of Inheritance and receiue Legacies onely Ministers of the Gospell and Monkes are barred by Lawe thus to doe and that not by persecutors but by Christian Princes neither doe I complayne of the Lawe but I am sorie wee haue deserued to haue such a Law made against vs In like manner and vpon the same occasion doth Ambrose deplore the state of the Clergie in his one and thirtieth Epistle Wee count it saith hee no iniurie in that it is a losse wee are not grieued that all sorts of men are made capable of Wils none excepted how base prophane or lauish of his life or honestie soeuer hee bee but I am sorie that the Clergie men only of all sorts of people are bard the benefit of the Law that that is common to all who notwithstanding onely pray for all and doe the common celebration of the Seruice for all So far they And yet whosoeuer lookes into this constitution whereby it was forbidden that any man should passe any Lands or other immoueable possession vnto the Church without the Princes leaue for that thereby the things that are so passed come as it were into a dead hand which holdeth surely fast that it once apprehendeth neither easily parteth with it so that it cannot without much difficultie bee reduced and brought againe to the commerce and common vse of men shall find it was rather for the benefit of the common wealth than for the dislike of the Church it was so ordered For if that course had béene holden on still the greatest part of the liuelyhood of the common wealth woule in short tune haue come vnto the Church and so Lay men should not haue béene able to haue borne the publicke burthens of the common wealth which it concerns Seculer Princes to be carefull of and to foresée that by ouermuch bountie towards the Church they impouerish not their owne state and loose the rights of Escheats Primer season and other Priuiledges of the Crowne in cases of forfaiture and specially make bare their Lay subiects vpon whom a great seruice of the common wealth doth lye And yet otherwise the beneficiallest state of this Realme vnto the Prince is the Clergie as from whom the King hath a continuall reuenew in Tenths and is déepest in Subsidie and not the least in all other extraordinarie charges according to the proportion of their place And therefore as the King is to maintaine the one so he is also to cherish the other and not to suffer their state in any sort to be diminished for that all other states are made for the seruice of the Church and the Church again for the benefit of them But this was none of those Priuiledges I spake of for these are more auncient than they and graunted out vpon better deuotion than the other but after this the zeale of Religion being almost extinguished in the Christian world partly by the great vproars and tumults that were in euery Country by the influence of one barbarous Nation or other into them who pulled downe Churches faster than euer they were built
Emperours are most worthy of commendations that when they had any occasion to make change of Lands with the Church would still allow them the like in value or better for a small gaine it is vnto a Prince for a few thousands of increase of temporarie benefices vnto his Exchequer to draw a perpetuall losse vpon a Church or Bishoprick for so déere ought the Spirituall state to be vnto a Prince vpon whom God hath bestowed so many Kingdomes and other things of price as hee hath done and put such an infinite number of people in subiection vnder his féete that he would not in any case be hard with God but thinke euery greatest liberalitie towards God the Church to be the best For certaine it is the Empire and Church doe not much Die § si minus Authent vt supÌ„ differ the one from the other for as the Empire doth gouerne the outward man and frameth him by outward policie to be a good and loiall subiect to the state So also the Church frameth the inward man by the word of God and causeth him not only to be a dutifull subiect vnto his Prince but also to be an acceptable seruant vnto his Maker So that there must be aswell had an awfull care of those things that are consecrated to God as there is a héedfull regard had of those things that belong to the good of the Common state for the Church was not made of God for the Common wealth but the Common wealth for the Church And therefore most Anno prâ—â—â— Iacob Regis cap. 3. gratious hath bin the consideration of our deare Soueraign who to stop all importunate suits made to Bishops for the graunting away of any of their reuenues to himselfe or any other and to méete with the too too easie facilitie of many Bishops in yéelding vnto such suits of his Christian and Princely pietie and care hath made a Law whereby to protect the Churches possessions from alienation or diminution that they may remaine and continue according to the true intent of their foundation to their successors for euer to the vses and purposes therein limitted But here is occasion offered by the example of our gratious King to wish that such as were authors to the King for the dissoluing of Monasteries and other houses of Religion had bin likewise councellors to him for the restoring of all appropriated parsonages of Tithes which were as it were in captiuitie vnder those houses of Religion vnto their proper parishes from whence they were taken Which had bin a memorable worke easie to haue bin persuaded the King hauing so many great mountaines of temporalities and Seas of goods chattels come vnto his hand so that these spiritualties would haue séemed matters of smale account vnto him in comparison of those other great riches and possessions that came vnto him Which if it had bin done how blessed a state and Church had this bin when euery congregation should haue had a sufficient prouision to mantaine a learned Preacher among them for so was it by the first institution and so continued till violence and superstition changed it But I feare those men which began this worthy worke had not such a sincere minde towards Almightie God in this reformation as they ought to haue had but that they sought therin their owne aduancement more than they did the glorie of of God which I doubt me lest God hath remembred in some of their posteritie which being left in great state haue eyther so vanisht away as that their place is scarse to be found or else doe so continue as that their posteritie euer since hath bin as it were in a minoritie so that they are as though they were not great in place but smal in reputation yea the thrée fayrest branches or boughes that euer were in the world issuing out of that trée vnder whose shadow all these things were done are quite gone and liue by no other posteritie but by their owne worthy fame and glorious acts which they did in their life time which also now being gone doe follow them so shall doe vnto the worlds end for they were all thrée memorable worthies in their place So dangerous a thing it is to mixt our owne ambition or any other carnall consideration with Gods glory But God be thanked such is the careful consideration of our most gratious Gouernor that now is in this behalf that it may be hoped that God will remember him and his posteritie in goodnesse according to all that good that he hath done for the Church that he and his posteritie after him may sit vpon his seat so long as the Sunne Moone indures for certeinly his godly and gratious comportment hath béen such hitherto as that he may be verily thought to be a man according vnto the hart of God as Dauid was But now to the losse that comes to the Church by these impropriations Whilest the Parochian Churches stood in their essentialities that is while they did enioy the naturall indowments due vnto their place that is all manner of Tythes and other Ecclesiasticall dueties growing arising within the compasse of their Parish due by the word of God they preached vnto their congregation they prayed for them they mynistred vnto them the Sacraments they kept hospitalitie among their Parishioners and reléeued the poore so far as their portion would reach vnto which was a comly thing to behold acceptable to God comfortable to their Parishioners conuenable to their calling but after the same were appropriated to Religious houses these good courses were much disguised for albeit those Religious men to whom these Parochian Churches were annexed did much pray for those congregation as they pretended from whom they had the fat of the Benefices yet they preached little to them kept smal hospitality among them or did any other spiritual work belonging to any Pastorall charge yet notwithstanding the whole institution for which benefices in the beginning were erected was not altogether extinct in them but there was some outward shape or forme of the first ordinance left them so far forth as that they made continual prayers intercessions to God for them but when it came once into the Laities hands there was not so much as a footestep left of the first institution for they neyther preach vnto the people pray for them nor kéepe any hospitalitie among them but spend all the whole reuenues of the Church vpon their priuate vses which many times are vnfit for such Spirituall prouision to be spent in so that for the benefit of the Church the returne of them might be well wisht albeit in so far as they are perplexed and intricated by the Lawes of this land with priuat mens states it would be hard to be performed for the changing of them would be much like as if a man should moue one stone in a vauted worke such as the stonie roofes of many Cathedrall Churches and Colledges are
presumed to kéep company with an other her husband yet being aliue 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 Raph and Aneline as the Decretall it selfe shewes Neyther was there any authoritie that opposed it selfe against that procéeding but held it to be good and lawfull though it were in tearmes of speciall Bastardy for then that which they now call speciall Bastardy was not borne Besides hereby it appeareth that the Ordinaries then did not only procéed in cases of Bastardy incidently that is when a suit was before begun in the Common Law vpon a triall of inheritance that by writ from the Temporall Courts but euen originally that to prepare way vnto inheritance or any other good that was like to accrue vnto a man by succession or to auoyd any inconuenience that might keep him from promotion as may appeare by this practize following Priests in the beginning of the Raigne of Henry the 3. Constitut Othâ—n innotuit de vxovatiâ— Ã Beneficijs amouendis yet married secretly their Children were counted capable of all inheritance and other benefits that might grow vnto them by lawfull Marriage so that they were able to proue that their parents were lawfully married together by witnesses or instruments which manie Children did eyther vpon hope of some preferment that by succession or otherwise was like to come vnto them or to auoid some inconuenience that otherwise might light vpon them for the want of that proofe some their parents yet liuing others their parents being dead and the procéedings before the Ordinarie was holden good to all intents purposes euen in the Common Law for otherwise they would not haue so frequented it for as yet there was made no positiue Law against Marriages of Priests or Ministers but the Church of Rome then plotting against it for that by that they pretended the cure of Soules was neglected the substance of the Church wasted and dissipated did by Otho then Legate a Latere to Gregory the 9. order by a Constitution that all such Ministers as were married should be expelled from their Benefices that their Wiues Children should be excluded from all such liuelyhood as the Fathers had got during the time of the Marriage either by themselues or by any middle person that the same should become due vnto the Church wherein they did reséed and that their children from that time forth should be disabled to inioy holy orders vnlesse they were otherwise fauorably dispenced withall which Constitution although it wrought to that effect to barre Priests for that time of their Marriage vntill the light of the Gospell burst out and shewed that that doctrine was erronious yet to all other effects the procéeding 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 he 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 â—ar as concerning those things wherein the Ecclesiasticall Law is hindered by the Temporall in their proceedings contrarie to Law Statute and custome aunciently obserued which was the third part of my generall diuision Now it followeth that I shew wherin the Ecclesiastical law may be relieued so both the laws know their own bounds and not one to ouerbeare the other as they doe at this day to the great veration of the subiect and the intollerable confusion of them both which is the last part of this Treatise The meanes therefore to relieue the profession of the Ciuile Law are two The first is by the restoring of those things which haue bin powerfully by the Common Law taken from them the bringing of them back againe vnto their old and wonted course The other is by allowing them the practise of such things as are grieuances in the Common wealth and fit to be reformed by some court but yet are by no home-Law prouided for The first of these stands in two things whereof the one is the right interpretation of those Lawes statutes and customes which are written and deuised 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 defectiue in the penning made in the behalfe as it is pretended of the Ecclesiasticall profession but yet by reason of the vnperfect penning thereof are construed for the most part against them The right interpretation of the Lawes Statutes and Customes pertaining to the practise standeth as is pretended in the Iudges mouth who notwithstanding hath that authoritie from the Soueraigne and that not to iudge according as him best liketh but according as the right of the cause doth require The supply or reforming of that which is ouerplus or defectiue is in the Parliament so notwithstanding as that the Prince euermore breatheth life into that which is done Lawes Statuts or Customes are then best interpreted whenas the verie plaine and naturall sence of them is so sought after and no forraine or strained exposition is mixt with them for that turneth Iustice into wormewood and Iudgement into gall then that the Iudge be noÌ„t to subtill in his interpretation but follow such exposition of the Laws as men of former age haue vsed to make if they be not plainly absurd and erronious for oft shifting of interpretations bréedeth great variance in mens states among such as haue busie heads much discrediteth the Law it selfe as though there were no certainty in it with which although the sage Iudges of our time cannot bee charged for oght that I know yet I cannot tell how men much complaine that lawes are far 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 in the spirituall Courts where the interpretation vpon the thrée Statutes of Tiths made by King Henry the eight and Edward his son among sundry other inconstancies of other Lawes hath such great varietie of sence and vnderstanding in sundry points thereof as that if the makers thereof were now aliue and the first expositors therof sate in place of Iudgement againe the Statutes being measured by the interpretation they now make of them would hardly acknowledge them either to bee the Statuts that they made or the other did after expound and declare for euery of these Statutes and the sence that was giuen of them was wholy for the benefit of the Church according to the tenor thereof but as they now receiue explication they are not onely not beneficiall vnto the Church but the greatest hynderance to the same that may be for the words are made to iar with the sence and the sence with the words neither is there kept any right