subjection and that he is not to bestow any benefice upon any that is unworthy for the same either in life or doctrine with sundry other excesses of Prelates in the like sort If any begin to build a Church or Chappell to the prejudice of an other and it be denounced unto him by the Parson or Parishioners of the other Church That he goe no further in the said worke untill the Law hath determined it whether it be a nusance or not Of the Priviledges of Prelates and wherein they exceed their priviledge Of Canonicall purgation which is injoyned when as yet there is no certaine proofe of the crime but there is a common voyce and fame of the fact which is to be cleered by the oath of him who is charged by the fame that he hath not committed the fact and the oath of his good neighbours who sweare they beleeve that he hath taken a true oath * Other kinds of this vulgar Purgation were observed by the Ancients as the triall by Water by the Crosse and by the Body of our Lord c. and these were of ordinary use amongst our owne Ancestours especially in the darker times The Saxons besides the triall by Combate which they called Campe-fight commonly used their fire and water Ordeals Their triall by water was performed either in hot or cold In cold water the parties suspected were judged innocent if their bodies were not borne up by the water contrary to the course of Nature In hot they were to put their bare armes up to the elbowes which if they brought out without hurt they were concerved to be cleere of the crime They that were tryed by the Fire-ordeall were either to passe bare-footed over a certaine number of hot glowing plough-shares or otherwise to carrie burning irons in their hands a certaine number of paces and according as they sped they were judged nocent or innocent This horrible experiment of Fire-Ordeall in the first kinde was tryed upon Queene Emma the Mother of Edward the Confessour with a successe worthy of her chastiue An example of the second kinde and the like event is recorded by Eadmerus who relateth that in the reigne of William the second A company of fellowes being suspected to have destroyed the Kings Deere were enjoyned for then triall to carrie burning irons which accordingly they did without hurt the issue thereof being reported to the King was entertained with such a remarkeable indignation that he suriously replyed Quid est hoc Deus est justus Iudex pereat qui deinceps hoc crediderit How solemnly and superstiuously these Ordeals were performed see Lambard out of his ancient Authour in the word Ordalium Reade also the Saxon Lawes of King Aethelstane chap. 23. where it is said that the party suspected three dayes before his tryall must goe to the Priest and heare Masse and feed for that time upon bread and salt and water and wurts c. See the rest in the Law These kinds of Purgations remained in use amongst our Ancestours till the time of Hen the 3. in whose reigne they began to be abolished rather by desuetude and in reverence to this Canon Law than by any Statute of the Realme as learned Mr Selden hath observed in the Notes upon his forementioned Eadmerus P. 204 where also the Reader may see how farre forth they were forbidden Onely the tryall by Combate though it be abrogated by the Canon heere is notwithstanding permitted by the Law of this Land but of very rare and considerate practice Of vulgar purgation which was performed by combate and passing by burning fire which is worthily rejected for that thereby the innocent many times was condemned and God thereby did seeme to be tempted Of injuries and wrongs done Of Ecclesiasticall punishments due to offences among which one is That so often as one offendeth so often hee is to be punished And that Prelates doe not take reward to winke at men in their sinnes or turne corrections into pecuniary paines for gaine of filthy lucre Of Penances and Pardons or remissions Of Excommunication which is the greatest punishment in the Ecclesiasticall jurisdiction and who and in what cases men are to be strucken thereby PART II. CHAP. I. SECT 1. What uses the Civile and Canon Law have in this our Realme and that the Civile Law respecteth matters of ordinarie and extraordinary Cognisance OF all those goodly and excellent Titles of the Civile and Canon Law so full of wisdome so full of variety so well serving for every moment and state of the common-wealth in peace or in warre as nothing can be more the Professours thereof have very little use here within this Realme For first for the Civile Law beside the two Universities of this land that of Oxford and the other of Cambridge to whom the Kings of this Realme have granted a larger libertie in the practise of these Lawes than to any other place of the Kingdome for that their purpose was to have young men trayned up there in a more ripe knowledge of these professions that when they came abroad they might be more ready in all matters of negotiation and commerce that the Prince or state should have need of thē to deale in with forrein Nations when they were thereto called to which the Lawes of this Land serve nothing at all by reason of the difference that is betweene their Law which is either wholy the Civile Law or for the most part grounded on it and the Law of our Nation a very few Titles are left to the practisers thereof to deale in and most of them seldome and rare in use as shall be hereafter shewed so that I may well divide all the profession of the Civile Law here with us into matters Ordinarie and Extraordinarie SECT 2. That the matters of ordinary Cognisance are Marine of which some are Civill others Criminall and what the Civill Marine matters are and what manner of proceedings they have THe matters of ordinary cognisance of the Civill Law here in this Land are Marine matters of which some are Civill some are Criminall Civill matters are those which concerne either the free use of the Sea it selfe or the rights that men have to trade and traffique thereupon or the bargaines sales or contracts or as it were contracts that are made or done beyond or upon the maine Sea or any creeke thereof or within asmuch space from the Sea as the greatest winter wave runneth out for any matter belonging to any negotiation or merchandize or any other thing to the Ship or trade appertaining And first for the use of the Sea it self the Law holds it to be ff adlegem Rhodian de Jactu tot tit common and that every one hath right to trade traffique upon the same so that it be without the prejudice of that Prince or Land to whom the Sea is adjoyning The like may be said for the shore it selfe so that it be either for the refreshing of themselves
a question hath beene where the King hath had sons both before hee came to the Kingdome and after which of them is to succeed hee that was borne before the Kingdom as having the prerogative of his birth-right or he that was borne after as being brought into the world under a greater planet than the other neither hath there wanted reason or example for each side to found themselves on for Xerxes the son of Darius King of Persia Herodot lib. 4. Justin lib. 11. Plutarchus in vita Artaxerxis being the eldest birth after his father was enthronized in the Kingdome carried away the Empire thereof from his brother Artemines or Artobazanes borne before his father came to the royall possession thereof so Arseces the son of another Darius borne in the time of his fathers Empire carried away the garland from his brother Cyrus borne before the Empire so Lewes Duke of Millan borne after his father Guicciard l. 1. Histor Blondus Decad. 2. lib. 6. Mich. Ritius l. 2 de regib Hungar Sigeb in Croniâ— was Duke was preferred to the Dukedome before his brother Galliasius borne before the Dukedome But these examples notwithstanding and the opinion of sundry Doctors to the contrary common use of succession in these latter dayes hath gone to the contrary and that not without good reason for that it is not meet that any that have right to any succession by the prerogative of their birth-right such as all elder brethren have should be despoiled thereof except there be some evident cause of incapacity to the contrary Besides sundry contentions have risen in kingdomes between Bartol l si viva matre c de bâ—â—is maternis primogeniti silâ—â— non excludunt secundogenitum in regno ff de liberis posthumis l. in suis the issue of the eldest sonne of the King dying before his father and the second brother surviving the father who should reigne after the father the Nephew challenging the same unto him by the title of his fathers birthright and so by the way of representation for the eldest sonne even the father yet living beares the person of the father how much then rather his father being dead Whereupon the Law cals as well the sonne Filiusfamilias as the father Paterfamilias for that the sonne even during the fathers life is as it were Lord of his fathers state the other claiming as eldest sonne to his father at the time of death upon which title in old time there grew a controversie betweene Areus the sonne of Acrotatus eldest sonne to Cleomines King of Lacedamon Pausanias lib. 3 Histor and Cleomines second sonne to Cleomines and uncle to the said Areus but after debate thereof the Senate gave their sentence for Areus right against Cleomines besides Eunomus King of Lacedaemon having two sonnes Polydectes and Lycurgus Polydectes dying without children Lycurgus Plutarch in vita Lycurg succeeded in the kingdome but after that he understood Polydectes widow had a childe he yeelded the Crown to him wherein he dealt farre more religiously than either did King John who upon like pretence not onely put by Arthur Plantaginet his eldest brothers sonne from the succession of the kingdome but also most unnaturally tooke away his life from him or King Richard the third who most barbarously to come unto the kingdome did not onely slay his two innocent Nephewes but also defamed his owne mother in publishing to the world that the late King his brother was a bastard Our Stories doe not obscurely note that a controversie of like matter had like to have growne betweene Richard the second and John of Gaunt his uncle and that he had procured the counsell of sundry great learned men to this purpose but that hee found the hearts of sundry Noble-men of the Land and specially the Citizens of London to be against him whereupon hee desisted from his purpose and acknowledged his Nephewes right Yet notwithstanding when as Charles the second King of Sicile Vicerius in vita Hen. 7. departed this life left behinde him a Nephew of Charles his eldest sonne surnamed Martellus and his younger sonne Robert and the matter came in question which of them should succeed Clement the fifth gave sentence for Robert the younger sonne of Charles deceased against the sonne of Martellus being Nephew to his Grandfather and so caused the said Robert to bee proclaimed King of Sicile which Clem. c. pastoralis de re judicata was done rather upon displeasure that Pope Clement conceived against the Emperour Frederick than that there was just cause so to doe And yet Glanvill an old reverent Lawyer Glanvil l. 7. c. 3 of this Land and Lord chiefe Justice under Henry the second seemeth to make this questionable here in England who should be preferred the Uncle or the Nephew And thus much of succcession of Kings wherein the eldest among Males hath the prerogative and the like in Females if there be no Male for that a Kingdome is a dignitie undivisible and can come but to one be he Male or Female for that otherwise great governments would soone come to small Rules and Territories And the like that is said of Kingdomes is to be held of all Dignities under Kingdomes where the eldest sonne is to be preferred before all his other brethren and they successively one before an other 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 kinred so it be not a Masculine Feud and the same intailed upon the heire Male. And thus farre as concerning the matters wherein the Civile Law dealeth directly or incidently within this Realme Now it followeth to shew how much of all those Titles of the Canon Law which have beene before set downe are here in practice among us CHAP. II. SECT 1. Concerning the use which the Canon Law hath in this Realm That some Titles thereof are abolished onely individually and some others are altogether OF those Titles of the Canon Law which before have beene recited some are out of use here with us in the singular or Individuum by reason of the grosse Idolatrie they did conteine in them as the Title of the Authoritie and use of the Pal the Title of the Masse the Title of Reliques and the worship of Saints the Title of Monks and Regular Canons the Title of the keeping of the Eucharist and Creame and such other of like qualitie but yet are reteined 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
of them both but left them severed as they found them onely 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 Governour of the whole and entire body of his Realme For this was exemplaried unto them in all former ages since the Church and common-wealth had any loving and kind cohabitation together as hath beene 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-government to the overthrow of the same as though the Positive Lawes of the Kingdome could not stand if the Lawes of the Church continued and stood up right SECT 4. That the limits and bounds of Parishes are of the Ecclesiasticall cognisance onely VPon the same words of the same Statute if perhaps at any time there grow any controversie about the limits or bounds of Parishes they draw the same by like importunitie from the triall of the Ecclesiasticall Law unto the Common Law avouching the same also to be of the Temporall cognisance and yet Linwod who lived in the dayes of Henry the fifth making a Catalogue of the principall matters that in his dayes belonged unto the Ecclesiasticall Courts reckoneth the bounds of Parishes for one And very like it is that it should so be for that Ecclesiasticall men first in this Kingdome made divisions of Parishes as by our owne Chronicles it appeareth and the first practice thereof within this Realme came from Honorius the fourth Registro Eccl. â—pâ— Cant. Stew. Archbishop of Canterbury after Augustine who himselfe died in the year of our Lord God 693. * He that shall trace the Writers for that which concernes the originall of Parishes may finde some probable issue if the course of Antiquitie runne cleere Those that first gave example to others in this matter are conceived to bee the ancient Roman Bishops for it was recorded in the Pontifical of Damasus as some would have it But in Anastasius Bibliothecar wee finde it that when Peter had appointed ordained Priests c. and Cletus had reduced them to a certaine number Pope Euarest assigned to each of them his Parish or as they then said his Title For so a Title is understood by Onuphrius and so in effect it may be taken though otherwise Paroecia is Accolatus ad sacram Aedem Titulus autem Aedes ipsa And it may seeme that Titulus might bee taken for Paroecia because this hath beene taken for that For in the Councels wee shall sometimes finde a Parish put for a Parish Church which is the meaning of Titulus See Baronius ad annum Christ 112. where the learned Cardinall setteth downe at large what these Titles were and why they were so called As for the time when these Parishes were assigned by Euarist it must be about the beginning of the 2 Centurie This done and the number of new Converts increasing Higinis placed severall Priests in singular Parishes and the chiefe of those he called Cardinales Presbyteros and heere we must beleeve that the Romish Cardinals began if at least wee will bee guided by their Historians In after-times Pope Denis improoved these conveniences invented by his Ancestours and set limits to Parishes And this was done about the yeare 260. If these things bee answerable as they are generally received by the Romish Antiquaries then it may seeme that other Nations made the like provision sooner or later according to their example And this is the rather to be beleeved because this Pope Dionyse wrote an Epistle to Severus Bishop of Corduba to observe this order in his Diocesse and looke what course himselfe tooke that hee should direct other Bishops to doe in like manner What was else-where done doth not so neerely concerne but here at home the first division of Parishes is ascribed to Honorius Archbishop of Canterbury as the Author here hath cited out of the Register and it is approved by Cambden Sedcavendum c. saith Marsil in his Booke de â—od Eccles cap. 12. But heed must be taken to the Equivocation of the word Parish for it hath not alwayes had one and the same acception Somtime when nothing is named but a Parish the whole Diocesse is understood and this notion of the word often occurres in the Councels and else-where According to this sence Barbatia spake a wide word for the Pope where he saith that in respect of him the whole world was but one Parish tract de praestant Cardinal Otherwise A Parish is taken for such a part of the Diocesse which is assigned to some Priest arbitrarily sent and maintained by the Bishop for it is to bee noted that such a Parish paid all dues to him and he to his Clergie for the primitive communitie of living because of inconvenience ceasing in the Church this custome was introduced that all Church dues should be at the Bishops disposing so that being geometrically divided into foure portions he should have one part and his Clergie an other the third to be disstributed to the poose and strangers and the last part to be reserved to the Parishioners for the repairing of Churches And that this was the use especially of the Romish Church plainely appeareth by the answer of Gregorie to our Austin in Bede lib. 1 cap. 27. The collection of these dues was committed to the care of the Chorepiscopus as appeareth by an Arabick Canon of the first Councell of Nice which together with other Occumenicall Councels and those Canons which are called the Apostles and some history of the primitive times out of Clement c. wee enjoy and esteeme as a most peculiar monument transported hither out of the Easterne world and placed in our publick Librarie by the bouatie of a worthy Benefactor Sir Thomas Roe The latter end of that Canon saith thus but for our great want of Arabick Characters it must be read in Hebrew 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 where the Canon provi 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 deth that it should belong to the charge of the Chorepiscopâ— to see that in every of their severall Cities and Countrey-villages these dues should be collected proportionably as every place should be found able and that these dues so collected should bee every yeare brought to the Bishops place of abode that there they might bee disposed of toward the maintenance of the Bishop the reliefe of the poore and strangers and the encouragement of his Clergie that so there might be concord and unanimity betweene him and them c. The Latine Translation of these Canons is set forth by Turrian and Alphons Pisan and is to bee found in the 1. Tome of the Councels set forth by Binius In the Translation this Canon is the 54. but hee that mindeth to see it in the Arabick must looke for the 58. Some say that these Canons are
so taken and reputed And this is the last and lowest order of them to whom Law doth allow any challenge of precedencie SECT 8. Concerning the Succession of great Personages in their places of Honour NOw it followeth that I speake somthing also how great personages one succeede an other in their places of honour And first to begin with the Empire it selfe as the greatest earthly dignitie under God albeit in the beginning it were raised up by no right but by usurpation Julius Caesar changing the former government of the State and challenging to himselfe the whole managing of the same yet after it came to an orderly course insomuch as hee that had the present possession of it disposed it to his best liking by his last Will and Testament So Julius himselfe devised it to Octavius his sisters sonne and albeit that devise tooke not effect by reason of the treason that was wrought against Julius owne person so that Octavius was faine to recover it by an other right even by the death of Lepidus and Antonius his colleagues in office yet that very Will of Julius gave a pretence to Octavius who after was called Augustus because hee did increase the Empire with many worthy Victories to stand for the inheritance of the Empire in consideration of which title the Senate and people of Rome more easily submitted themselves unto his government Augustus in like sort bequeathed it to Tiberius and Tiberius to Caius and so it came from one to an other untill some of them by cruelty and licentiousnesse of life became so odious to God and man that the people rose against them and bereft them of that libertie which they had prescribed in appointing of their Successors and somewhiles themselves and somewhiles the Souldiers made choise of whom they thought good or by whom they thought best to be rewarded And thus the right of Succession unto the Empire was tost up and down many hundred yeares betwixt Inheritance Bequest and Election untill at the last it came unto that established state as now it is in and setled Electours of the Empire so often as it happened to be voide Succession in Kingdomes in most part of the world in former time hath beene and at this day is by right of bloud a few onely excepted which are Elective as the Kingdome of Poland is at this day and in Succession the eldest sonne taketh place before the rest and if there be no heire male then the eldest daughter succeedeth in the kingdome and her issue for Kingdomes as also succession in other dignities are impartible And yet France to exclude Edward the third from the inheritance of the Crowne thereof who descended of Isabel the sister of Charles the faire and so was next heire male unto the kingdome of France alleaged for themselves the Law Salick pretending none which claimed by the woman albeit he were the next heire male in bloud was to succeed as long as there were of the male line alive how farre soever they were off in degree from the last King deceased But this is but a meer device of the French fathered upon some rotten Record of that part of their Nation called Salii of whom otherwise they have nothing memorable to speake of as being the basest Nation among them all of whom they report their people to have bin compounded but this devise served their turne then whether it were anciently invented or newly coyned But howsoever they oppose themselves against womens government as Bodine their countrey-man Bodin lib. 6. de repub hath of late stretched out the strength of his wit to devise reasons against the government of that sexe certaine it is that the Law of God hath allowed it as it appeareth in the example of Debora who being a Prophetesse governed Israel fortie yeares and by her direction got the Israelites a mightie victorie over Sisera the Captaine of the hoast of Jabin and wee among other Nations have found by experience gunaicocratie or womens government is nothing so unfortunate as Bodine would make us beleeve it is For both in our late Queene and also in her sister except only the case of Religion wherin she followed the error of the time and was carried away more with zeale than knowledge and thereby is more to be pittied than to be envied what is in their government the wisest Man-Prince in the world would not desire to be in his owne Regiment for what is either in their private carriages so you give no eare to virulent and malitious tongues who report surmises for substances and tales for truths or in their publicke government so you lay not other mens faults to their charges that any man may justly blame For that I may passe over the rest of their Heroicall vertues fit for women of their State specially the late Queene who was peerelesse among all Queenes that ever went before her and unmatchable as I verily doe beleeve by any that ever shall succeed her as their magnanimity whereby they subdued not only their domesticall enemies but vanquished even their forraine foes were their designements never so dangerous not shewing any token of discouragement either in the treasonable attempts of the one or in the malitious complotments of the other What an excellent worke of hers was that that then when all her neighbour Kingdomes round about her were drunke with the cup of the fornication of the whore of Babylon she alone came out of Babylon and so continued constant to the end mauger the threats of the red fierie Dragon and the floods of water he cast out of his mouth after her How excellent did she shew her selfe in those two vertues which doe chiefly preserve Princes States that is Mercy and Judgement the Records of her time doe shew so that I may spare to remember any by name which happily would not be well taken And yet truth it is that mens government is more agreeable to Nature than womens is whom God in the beginning put in subjection under man and who for the most part are by nature weake in body and thereby unable to put in execution the great affaires of a Kingdome and unsetled in Judgement and so hardly can determine that which is right and settle themselves thereupon yet by the numeration of certaine ill governing Queenes to conclude a generalitie against all government of women is but an ill kind of arguing for even by the like reason a man might conclude against Kings of which sort although there hath beene many good whom God hath used as instruments to worke great good unto people in every Kingdome yet more of them have beene evill as the Stories of every country will shew and to abridge God of his power that hee cannot as well governe by a woman as by a man when it is his good pleasure so to doe were great injurie to God and a great discredit to all woman kind but to returne thither where I left In succession of Kings
validity of the Will it self the Legacies and devises therein whether they were of lands or tenements or of goods or chattels the Probate it selfe worketh nothing but leaveth that to the Law Common or Ecclesiasticall according as the bequest belongeth to either of them whether it be good vailable in Law or no for it oftentimes falleth out notwithstanding the Wil be lawfully proved before the Ordinary yet the bequests are not good either in respect of the person to whom the bequests are made or in respect of the thing that is not devisable in all or in part as by the Common Law lands in Capite cannot be devised more than for two parts but in Socage the devise 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 deaths part and if hee doe his bequest is void for the rest but in other places of the land a man may bequeath all By the Civile Law a man can bequeath nothing to a Traytor or an Heretick or an unlawfull Colledge or Company unlesse perhaps it be for the aliment or maintenance of them in extreame poverty that they die 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 neither helpeth nor hindereth the right of the devise it selfe but is a declaration onely of the dead mans doome uttered before such such witnesses which taketh his strength not so much from the Probate as from the Law and is testified onely by the Probate that the same was declared by the Testator in the presence of the witnesses therein named to be his true and last Will. So that no man herein is to be offended with the Ordinary as presuming of a matter not appertaining unto him for his testification in all Law and conscience doth belong unto him to give allowance so farre unto the defuncts Will as it is avouched before him to be his last act deed in that behalfe but rather they are in this case to thanke the Ordinary that he by that act of his hath preserved the memorie of that which otherwise perhaps would have been lost and perished to the great hurt of the Common-wealth and others which have private interest therein CHAP. II. SECT 1. Of the Care that Princes of this Realm have had for the due payment of Tythes unto the Church and the preserving of the cognisance thereof unto the Ecclesiasticall Courts of this Land both before the Conquest and since OF all matters that appertaine to the Ecclesiasticall Courts there is no one thing that the Princes of this Land have made more carefull provision for since there was any Church government in this Land than that all maner of Tythes due by the word of God should bee fully and truely paid unto their Parish Churches where they grew and if they were denied should be recovered by the Law of the Church * The great pietie Princely care of our ancient Kings before the Coquest is worthily noted by the Authour and because it argueth the rare devotion of those times wee will consider it more perfectly About the seventh Centurie Ina King of the West Saxons made this Law 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 hpa 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ne 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is That the Church-sceat be paid in at Martlemas if any refuse to pay it that his penaltie be fortie shillings and the payment of Church-sceat twelve times That which the law here calleth Church-sceat according to the varietie of reading hath bin diversly interpreted Fleta as if it were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 readeth Church-seed and therefore he saith it was Certa mensura bladi Trâ—tics c. So the old Lawyer in Lambert fuit un certein de ble batu que chescun homme devoit en temps des Britons des Engles porter a lour Esglise le jour Seint Martin Others reade 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Churchescet that is the Church shot or Church due Which way soever we reade the word there will bee no great injurie done to the sense yet because other things besides Corne have gone under the name of Church-sceat as the Cocks Hennes at Christmas therefore it seemeth that the last reading is the best heere it must signifie a quantitie of Corne due to the Church and to be paid in at Martlemas Why these dues and others were tendred at this Feast Hospinian thinketh he hath given a good reason but see Gretser in his Booke de Festis upon S. Martins day In the ninth Centurie King AEthelstane made this Law Ic 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 callum minum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 calle mine 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 on 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nama 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mine 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 hi 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is I AEthelstane King by the advice of Wulfhelme my Archbishop and my other Bishops command all my Reves thorough all my Kingdome in the Lords name and of all Saints and for my love that in the first place they pay the Tythe of my owne revenues as well in living Cattell as the yearely fruites 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is And this to be done at the day of the beheading of S. Iohn the Baptist And that the Subject might the more earnestly intend the observation of this Law the King addeth a pious exhortation 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Iacob 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ic 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mine 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mine 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mâ—n 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 hi 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 eac 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 on 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 bocum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mid 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ecelic 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is Furthermore thinke wee with our Our selves what Iacob the High Father to the Lord said I will give thee my Tythe and my peace-offering And the Lord himselfe in the Gospel saith To all that have it shall be given and they shall abound We might also bethinke Our selves of the penaltie which is written in this booke that if wee will not pay our Tythes then the nine parts shall bee taken away and the tenth onely shall be left us And Gods Lore putteth us in minde that for these earthly things eternall are to be had and everlasting for the transitorie Thus the religious Prince goes on and earnestly pursues the argument in the Rhetorick of those times seeming to intimate to his people that though no humane Law had interposed it selfe yet the divine equitie of this cause might be eminently enforced out of sacred Writ King Edmund in a Synod holden at London at which was present 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Oda and Wulfstan
tend to the discredit or disadvantage of most necessarie Prayer equall to the dignitie of Preaching which God hath ordained to bee the onely meanes to come to Salvation by For Faith comes by hearing and hearing by the word of God and without Faith it is impossible to be saved for Faith is a gift that purifies the heart and makes a mans prayers acceptable to God and therefore neither of them ought so to take place as that the one should shoulder out the other but they ought so to goe hand in hand together as that one should helpe assist and countenance the other SECT 4. Whether Appropriations came first frō Princes or Popes it is questionable BUt how these annexations of Benefices first came into the Church whether by the Princes authoritie or the Popes licence it is very disputable and there are reasons on both sides for to shew the same For whereas there are reported by Ingulphus Abbot of Crowland before mentioned to have beene eight Churches beside the Patronage of some other annexed and appropriated to the said Abbey by sundry Saxon Kings it doth not appeare by ought I can finde whether they were done by the soveraign authoritie of the Kings alone to the imitation of that that was done by Martellus who made all Christian Kings to sinne in this point or that it was done by any other Ecclesiasticall authoritie for that there is nothing extant for the allowance thereof save the severall Charters of those ancient Kings only that I should bee the rather induced to beleeve that it was done by those Kings authoritie only I am thereto persuaded for that I finde William the Conqueror immediatly upon the great victory that hee got over this Kingdome to have appropriated three Parish Churches to the Abbey of Battaile which hee built in memory of his Conquest And whereas William his sonne had depopulated and overthrowne sundry Churches in the new Forrest Henry his brother by his Letters Patents gave the Tythe therof to the Cathedrall Church of Sarum annexed thereto twenty other Churches in one day if the copie of that record that I have seene as concerning these appropriations be true yea the matter was gone so farre in those daies that even Noble persons and other meaner men would command Corodies and pensions to their Anno 1. Edw. 3. c. 10. Chaplaines other servants out of Churches and this could not be redressed untill such time as there was made a Statute to reforme it On the contrary side that I should take it to be a devise of the Pope I am moved thereto for that I finde every of these orders of Religious men were confirmed by one Pope or other as they confirmed them so it is like they made provision for them that most especially this way that chiefly after the Laws of Amortisation were devised Linwood c. licet bona memoria Gloss in verb. asserunt non logari de locato conducto put in ure by Princes thereupon it is that we find sundry sorts of annexation made by Popes Bishops under them every one in their Diocesse as some were made so far as concerned the Patronage only then had the Monks therein presentatiō only some other were made pleno jure then might the Monkes both institute destitute therein without the Bishop and turne all the profit thereof to their own use reserving onely a portion to him that should serve the Cure there some other Churches did they grant simply to them without any addition of full right or otherwise then if the Church were of their owne foundation they might chuse the Incumbent being once dead whether they would put any other therein unles †By occasion of that which the Authour here saith and that which hee hath hereafter said concerning the Patrons pension from the Bishop Chap. 5. Sect. 1. of this 3. Part. It shall be here enquired what Right and Title the Diocesan had to a new Church or Monasterie and how it stood in comparison of the Patron and because this Right seemeth originally to discover it selfe in the Founding Erecting and Endowment of a Church or Monasterie by all or either of which the Law saith a Patron may be made the Bishops consent alwaies presupposed as hereafter shall appeare therefore in the first place it must be considered how farre forth the Bishop was concern'd in these that it may the better be understood how truly hee was qualified to the Right of Presentation For that which concernes Foundation and Erection All that the Patron had free to himselfe in the first place was but his Thought he might thinke where he would designe the Ground or How he might Build the Church and if he entertained his owne Motion hee might make it his purpose But this was nothing without Execution and to this the Diocesan was to bee required as the most principall and most effectuall Agent therefore it is said in the 4. Canon of the Councell of Chalcedow that no man shall erect 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Monasterie or a Church without the Bishops consent And Lambertine saith that this was so necessarie that if a Church were set up in the Patrons ground without his consent the Patron could not pull it downe without the Bishops consent yet if the Patron built a Church upon his owne ground without the Bishops consent the Bishop might pull it downe without the Patrons consent and yet in this case the Patron might not doe it without the Bishops consent c. But to see further For the Greeke Church their Euchologue saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. That the Materials being provided for the foundation of the Church that shall be erected the Bishop commeth thither in person c. and having put on his Formalities the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he saith certaine Prayers 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. This done 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 〈◊〉 the Bishop fumeth the Ground worke with his incense circularwise then the Singing men say the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a kinde of Collect for the Saint to whose name the Church is dedicated and some other Services as the Chaunter shall appoint That which followeth in the Euchologue concerning the Corner-stone which the Bishop crosseth and layeth for the Foundation hath beene formerly observed by occasion of the Emperours Novell to this purpose perhaps the same Church had people belonging unto it for then must they of necessity still maintaine a Curate there of this sort were their Granges Priories those which at this day we call Donatives but if it were of another mans foundation then was it otherwise To this also I adde that the Pope every where in his Decretals arrogateth this right unto himselfe as a Prerogative of the Apostolike See to grant these priviledges to Religious orders to take and receive Benefices
priviledge granted to religious orders 200 Stephen Pasquier censured 165. 166. 170. his mistake in a quotation 169 Passage-money 62 Patricii who 45 Patrons may present not ordaine Clerkes 57. their power to erect a Church 191. 193. dependeth upon the Bishop ibid. to endow and fill it 194 195 196. the abuse of their authority 198 199. taken notice of by severall Councels ib. Peeres 105 Pearles by whom to bee worne 42 Perpetuall right betweene passengers 90 Peter-pence when first paid 139 Philosophers why no stipend allowed to them 30 Physicians by Constantine made Earles 47 Pipin buried with his face downwards 165 Piracie what 94. onely punishable by the Admirall Law 273 Pirates 95 Plaintifes office 79 80 Plea of Tenements and of Dowrie have beene of Ecclesiasticall cognisance 118 Plough-almes what 140 141 Pluralities in what case tolerated 85. the abuse of pluralitie of Executors 269. with the remedie 270 Poets denied the priviledge of other professors 40 Popes precedencie 66. whether first granters of Impropriations 190 Popular Actions 22 Possessorie right what 94 Post-horses 49 Postulation of Bishops what 76 Practice of the Civile Law necessary in this Land 272. of such cases as are not provided for by the Common 262 263 Prayer and Preaching conferred 188 189 Preaching preferred ib. Precedencie of States 104 105. of Knights and Doctors 106. of the Pope 66 Priests why called Sacerdotes 34. why Presbyters ibid. why prohibited marriage 253 Prelates excesses 86 Premunire what 122. the originall of it ib. 125. the litle use of it 123. the Statute expounded 124. wrested by our Common Lawyers ib. in force against Priests and Jesuites 125 Prenotary his place 46 Prescriptions the kinds and effects of them 17. for Lay-men to hold Tythes in fee how ancient 163. prescription supposeth possession 216. lyeth not against a mans selfe ib. Presentation originally the Bishops right 196 197. why devolved to lay-patrons ibid. how abused by them 198 199. and therefore a resumption attempted by the Bishops ib. Pretor who 45 Primicerius whence 46 Princes not to bee traduced 85. their name to be put in all Instruments 56. their titles and supremacie 103 104. they should befriend the Church 211. whether the first granters of Impropriations 190 Principall what and what Accessorie 233 Prison-breakers how punished 21 Priviledges what 182. of Religious Persons 188 Prizing of goods oft-times partiall 266 Probates of Wils how farre effectuall 137 Proces in Ecclesiasticall Courts 78 79. by Accusation Denunciation or Inquisition 84 Prodigals estates how provided for by the Civile Law 268. who so accounted 11 Professours excused from services 40. made Earles 47 their stipends 29 Promises to be kept 29 Promoters office 37 Property of things what 93. how got ib. Protocols what 56 Publick workes by whom to bee made 29 Punishment by death foure-fold 25. of souldiers 99 Pupils estates how to be ordered during their minority 9. 10. Purgations Canonicall and Vulgar 86 Purple a weare peculiar to Princes 42 Purser of a ship 90 Q Queene next in ranke to the King 104 Quotitie of Tythes Morall 203. not Judiciall 205 R Racking when to be used 25 Ranks of the Nobilitie 104 105 Receivers of Theeves how punished 20 21 Reformation at the first wherein defective 212. Refutatio feodi what 73 Reliefes of the Civile Law proposed 255. seq Religious persons of what life they should be 184 Reprisals whether lawfull 56. how differenced from piracie 95 Residencie required 81. except in case of sicknesse ib. Retractation of sentence within what time it may bee made 37 Rhodians ancient marriners 90 Right what 2. to any thing how gotten 15 Rolles what they comprehended 47 Rulers of Provinces their office 54 S Sabbath partly naturall partly positive 204 205 Sacraments by whom not to be administred 85 Sacred Mysteries not to be celebrated in private 57 Salick Law 109 Salomons Temple 219 Sanctuarie to whom advantagious 36 Sarum Church by whom and how endowed 190 Satisdation what 94 Saxon Lawes 138 139 Schooles for Henchmen what 48 School-mens curiositie wherein prejudiciall to the Clergie 162. 202 Sea-affaires determinable by the Civile Law 88. Sea common ibid. Secretaries place 46 Secundocerius what 46 Senate of Rome why they refused to admit Christ into the number of their Gods 235 Senators who 46. 48 Seperatorum seperata est ratio 222 Sepulchers violated the punishment 20 Services of the Common-wealth of three sorts 28. exemption from them how procured ib. services to the Exchequer 39. who exempted from personall services 40. Divine Service not to be disturbed 66. not celebrated by Laymen ib. Souldiers priviledges wages discipline c. 48 49. they only permitted to carrie weapons 54. their diet and apparell 98. their faults ib. and punishments 99 Sonne not to succeede the Father in Spirituals 76 77 Spousals what 9. Spurii who 244 Stage-players incapable of some immunities 43 Starre in Cassiopea prodigious 170 Statute of Premunire expounded â—24 those concerning matters Ecclesiasticall imperfect 127. of Henry 8. and Edw. 6. how to be interpreted 256. how supplied 258 259. The word Statute doth not inferre Temporall cognisance 158. Statute of Mortmaine why made and by whom 183 Stealing before the Will be proved how punished 21. of Children or men 24. of women 67 Stellionatus crimen 21 Stipends for liberall Sciences 29. none for Lawyers nor Philosophers 30 Strangers how to be intreated 60 Students excused from personall services 40 Subjects of how many sorts 27 Subsidies 38 Successions 63. 71. in Spirituals 76. of great personages 109. whether the Sonne borne before his Father was King ought to succeed in the Kingdome 111. whether the grand-Childe or second brother be to succeed 112 Suerties not to be sued before the principall 51 Suertiship of women how to be releeved 7 Suing out ones Liverie 71 Superimpositions when used 38 Supervisors of Wils whereto usefull 270 Surveyors office 44 Swearing capitall 59 Sylva caedua in the Statute canvassed 229 230 Symonie 64. 84. T Templars exempted from Tyth-paying 200 Tenth Number the perfection of the rest 203. whether a Figure of Christ. 204 Tenure vid. Feud For terme of life or yeares 70. perpetuall ib. Testaments by whom they may be made 11. a priviledge granted by Princes 265. The kinds proofe and publication of them 11. if doubtfull how to be understood 12. though imperfect yet stand good for Children 61. how much may bee bequeathed 12. how many witnessesrequired to the making 135. when lands are devised 137. a part of Ecclesiasticall Jurisdiction 134. but in part rent from it 135 Testimonie of one witnesse dangerous 136 Theft the definition division and punishment of it 18 Theodosius Author of the Statute of Mortmaine 183. and therefore disliked by â—erome and Ambrose ib. Tiberius requesteth that Christ might be admitted into the number of the Roman Gods 235 Timber by nature Tytheable but exempted by Statute 230 Titles which have beene triable in Ecclesiasticall Courts 114. 115. 116. c. Title of lands varieth not with