who was péerelesse among all Quéenes that euer went before her and vnmatchable as I verily doe beleeue by any that euer shall succéed her as their magnanimitie whereby they subdued not only their domesticall enemies but vanquished euen their forraine foes were their designements neuer so daungerous not shewing any token of discouragement either in the treasonable attempts of the one or in the malitious complotiments of the other What an excellent work 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 Babilon shee alone came out of Babilon and so continued constantly 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 preserue Princes States that is Mercie and Iudgement the Records of her time do shew so that I may spare to remember any by name which happily would be not well taken And yet truth it is that mens gouernment is more agréeable to Nature than womens is whom God in the beginning put in subiection vnder man and who for the most part are by Nature weake in bodie and thereby vnable to put in execution the great affaires of a Kingdom and vnsetled in iudgement and so hardly can determine that which is right and settle themselues thereupon yet by the numeration of certaine ill gouerning Quéens to conclude a generalitie against all gouernment of women is but an ill kind of arguing for euen by the like reason a man might conclude against Kings of which sort although there hath bin many good whom God hath vsed as instruments to worke great good vnto people in euery kingdom yet more of them haue bin euill as the Stories of euery country will shew and to abridge God of his power that he cannot as well gouerne by a woman as by a man when it is his good pleasure so to doe were great iniurie to God and a great discredit to all woman kind but to returne thither where I left In succession of Kings a question hath béene where the King hath had sons both before hee came to the Kingdome and after which of them is to succéed he that was borne before the Kingdom as hauing the prerogatiue of his birth-right or he that was dorne after as being brought into the world vnder a greater planet than the other neither hath there wanted reason or example for each side to found themselues Herodot lib. 4. Iustin lib. 11. Plutarchus in vita Artoxerxis on for Xerxes the son of Darius King of Persia being the eldest birth after his father was inthronised in the Kingdom carried away the Empire thereof from his brother Artemines or Artebarsones 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 was Guiâ—â—ard l. 1. Histor â—lonâ—us Decad. 2. lib. 6. Mich. Ritius lib. 2. de regib Hâ—â—gar Sigeb in â—roni 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 contrarie common vse of succession in these latter daies hath gone to the contrarie and that not without good reason for that it is not meet that any that haue right to any succession by the progatiue of their birthright such as all elder brethren haue should be despoiled therof except there be some euident cause of incapacitie to the contrarie Beside sundry contentions haue risen in kingdomes betweene the issue of the eldest sonne of the king dying before his father and the second brother suruiuing the father who should Raigne after the Father the Nephew challenging the same vnto him by the title of his fathers birthright and so by the way of representation for the eldest son euen the father yet liuing beares the person of the father how much ff de liberis posthumis l in suis then rather his father being dead Whereupon the Law cals as well the sonne Filiusfamilias as the father Paterfamilias for that the son euen during the fathers life is as it were Lord of his fathers state the other claiming as eldest son to his father at the time of his death vpon which title in old Pausanias lib. 3. Historiaris time there grew controuersie betwéene Areus the son of Acrotatus eldest son to Cleomines King of Lacedemon and Cleomines second son to Cleomines and vncle to the said Areus but after debate thereof the Senate gaue their sentence for Areus right against Cleomines beside Eunomus Plutarch in vita Licurg King of Lacedemon hauing two sons Polydectes and Lycurgus Polydectes dying without children Lycurgus succéeded in the kingdom but after that he vnderstood Polydectes widow had a child he yeelded the Crowne to him wherein he dealt far more religiously then either did king Iohn who vpon like pretence not only put by Arthur Plantaginet his eldest brothers son from the succession of the kingdom but also most vnnaturally tooke away his life from him or king Richard the third who most barbarously to come vnto the kingdom did not only sley 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 Bartel l. si viâ—ae matre C. de bonis maternis primogeniti filii noÌ„ excludâ— secuÌ„dogenituÌ„ in regno doe not obscurely note that controuersie of like matter had like to growne betwéene Richard the second and Iohn of Gaunt his vncle and that hee had procured the counsell of sundry great learned men to this purpose but that he found the hearts of sundry Noblemen of the Land and specially the citizens of London to bee against him whereupon hee desisted from his purpose and acknowledged his Nephewes right Yet notwithstanding when as Charles the second Vicerius in vita Henricâ— 7. King of Cicill departed his life and left behind him a Nephew of Charles his cloâ—st son surnamed Martellus and his younger son Robert and the matter came in question which of them should succéede Clement the fifth gaue sentence for Robert the younger son of Charles deceased against the son of Martellus being Nephew to his Grandfather and so caused the said Robert to be proclamed king of both Caecils Clem. pastoralis de re iudicata which was done rather vpon displeasure that Pope Clement conceiued against the Emperour Frederick than that there was iust cause so to doe And yet Glanuill an old reuerent Lawyer of this Land and Lord chiefe Iustice vnder Henry the second séemeth to make this questionable here Glanuil l. 7. c. 3. in England who should bee preferred the Vncle or the
like former precedents but needed euery one almost a newe decision And the cause why Princes in the beginning granted to Clergy men these causes and their Consistories for from Princes were deriued in the beginning all these authorities as also the Religion it selfe is setled and protected in Kingdomes by Princes before there can be had a frée passage thereof was one that the Clergie men thereby might not be drawen from their prayer and exercise of diuine seruice to follow matters of suites abroad secondly that they were like to haue a more speedy and better dispatch and more indifferency before a Iudge of their owne learning than before a Iudge of an other profession for this is true and euer hath bin and I feare euer wil be vnto the end that is said in the glosse and is in common saw Laici opido semper infesti sunt Clericis Lastly that Clerks suits quarrels should not be diuulged and spread abroade among the lay people that many times to the great discredit of the whole profession specially in crimminall matters wherein Princes aunciently so much tendered the Clergie that if any man among them had committed any thing worthy death or open shame he was not first executed or put to his publike disgrace before he was degraded by the Bishop and his Clergie and so was executed put to shame not as a Clerk but as a lay malefactor which regard towards Ecclesiasticall men it were well it were still reteined both because the consideration thereof is reuerent worthy the dignity of the Ministerie whose office is most honorable also for that it is more auncient than any Papisticall immunitie is The third and last reason that moues me that I should beléeue that these Titles sometimes were here in exercise among vs in the Ecclesiastical Courts is that I find Glanuill Glanuill lib. 12. cap. 15. de Legibus Angliae who himselfe liued vnder Henry the second and was Lord chiefe Iustice of England in his daies sort to the Ecclesiasticall Courts the plea of Tenements where the suit is betwéene two Clerks or betwéene a Clerk and a Lay man and the plea is De libera eleemosina feodi Ecclesiastici et non petitur inde recognitio whether the frank fée be lay or Ecclesiasticall where also is further added that if it be found by the Idem lib. 13. cap. 25. verdict of legall and sufficient men that it is of Ecclesiastical fée it shall not be after drawen to lay fée no though it be held of the Church by seruices thereunto due and accustomed secondly whereas land is demaunded in marriage by the husband Idem lib. 7. cap. 18. or the wife or their heire and the demaund be against the giuer or his heire then it shal be at the choice of the demaunder whether he will sue for the same in the court Christian or in the secular Court For saieth he it pertaineth vnto the Ecclesiasticall Courts to hold plea of dowries which he calleth Maritagia if so be the plaintife so make choice of those Courts for the mutuall affiance that is there made betwéene the man the wife for marriage to be had betwéene them there is a dowry promised vnto the man by the womans friends neither shall this plea be caried vnto the temporall Courts no though the lands be of Lay fée so that it be certein the suit is for a Dowry but if the suit be against a stranger it is otherwise thirdly the Kings prohibition forbidding Anno 24. Ed. 1. the Clergie the dealing in many things which are of lay fée forbids them no one thing that is of Ecclesiasticall fée and to shew the Princes meaning precisely therein that it was not his intent by that Prohibition to restraine the Ecclesiasticall Iudges for procéeding in matters of Ecclesiasticall fée he sets downe in very tearmes these words Recognisances touching Lay fée as though he would hereby signifie to all men that he would not touch matters of Ecclesiasticall fée which did then wholy properly appertaine to the triall of the Christian Court as hath bin before vouched out of Glanuill who for the place he then held may be thought to haue knowen the Lawes of England as then they stood and the right interpretation thereof aswell as any man then or now lyuing And yet because there were some things of Lay fee which the Clergie then had cognisance of as yet they haue in some measure as causes and matters of Money chattels and debts rysing out of Testaments or Matrimonie because he would haue whatsoeuer belonged to the Clergie to be vndoubted excepteth them from those things which belong to the Crowne and dignitie and leaueth them to the ordering of the Christian Courts which is nothing else but an affirmance of that which Glanuill and the rest of the auncient English Lawyers Bracton and Britton said before Lastly the prouinciall Constitution Aeternae de poenis made in the dayes of Henry the 3. plainly shewes that in those dayes all personall suits betwéene eyther Clerke or Clerke or betwéene Lay men complaynants and Clerkes defendants for euer the Plaintife must follow the Court of the Defendant which to the Ecclesiasticall men then was the Ecclesiasticall Court were tried by the Spirituall Law and not by the Temporall Law which practize for that it doth accord with the iudgement of those auncient Lawyers that haue bin before cited and with the Prohibition it selfe which there restraineth only calling of Lay men to make recognisances of matters of Lay fée it may be a great argument that these things were of the Ecclesiasticall right in those dayes from which I sée not how the Ecclesiasticall Courts are falne for I sée neither Law nor Statute to the contrarie vnlesse perhaps they will say the Statute of the 25. H. 8. cap. 19. 25. of H. 8. cap. 19. toke the same away as being hurtfull to the kings Prerogatiue royall repugnant to the Lawes Statutes and Customes of this Realme which whether they be or be not taken away by the stroak of that Statute I leaue it to men of better experience in these matters than my selfe to iudge But yet this I find by experience to be true That where there are two diuers Iurisdictions in one Common wealth vnlesse they be carefully bounded by the Prince an equall respect carried to both of them so far as their places and the necessarie vse of them in the Common wealth requires as the aduancement of the one increaseth so the practize of the other decreaseth specially if one haue got the countenance of the State more than the other which is the only cause at this day of the ouerflowing of the one and the ebbing of the other but it is in his Sacred Maiestie to redresse it not by taking away any thing from that profession that is theirs but by restoring to this profession that which is their owne but hereof 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 For
the rest of the matters that belong to the triall of the Ecclesiasticall Courts some are acknowledged to be absolutely in vse some other are challenged to be but in a certein measure in vse In absolute vse are those which neuer had any opposition against them which almost are those alone which belong to the Bishops degrée or order for all things which come within the compasse of the Ecclesiasticall Law are either belonging to the Bishops degrée or his Iurisdiction To his degrée or order belong the ordering of Ministers and Deacons the confirmation of Children the dedication of Churches and Churchyards and such like none of which haue béen challenged at any time to belong to any other Law The second sort is of them that belong to the Bishops iurisdiction which is partly voluntarie partly litigious Voluntarie is when those with whom the dealing is stand not against it but litigious it is when it is oppugned by the one part or the other Of this latter sort many things in sundry ages haue bin cald in question but yet rescued and recouered againe by the wise graue Iudges themselues who haue found the challenge of them to be vniust But what doth belong to either of them in priuat or what causes do appertaine to the whole Iurisdiction in generall because they haue bin alreadie particulerly set downe by that famous man of worthy memory Doctor Cosin in his learned Apologie for certaine Cos in in his Apologie part 1. c. 2. procéedings in Ecclesiasticall Courts I will not make a new catalogue of them but send the Reader for the knowledge thereof vnto his Booke but yet in my passage will I note which of them haue bin most chiefly oppugned and as occasion shall fall out speak to them And thus much as concerning those parts of the Ecclesiasticall Law which are here in vse with vs Now it followeth to shew whereby the exercise of that Iurisdiction which is granted to be of the Ciuile and Ecclesiasticall cognizance is defeated impeached by the Common Law of this Land which is the third part of this Diuision The impeachment therefore is by one of these meanes by Praemunire by Prohibition by Iniunction by Supersedeas by Indicauit or Quare impedit but because the fower last are nothing so frequent nor so harmfull as the others and that this Booke would grow into a huge volume if I should prosecute them all I will only treat of the two first and put ouer the rest vnto some better opportunitie A Praemunire therefore is a writ awarded out of the kings Bench against one who hath procured out any Bull or like processe of the Pope from Rome or elsewhere for any Ecclesiasticall place or preferment within this Realme or doth sue in any forteine Ecclesiasticall Court to defeat or impeach any Iudgement giuen in the Kings Court whereby the bodie of the offender is to be imprysoned during the Kings pleasure his goods forfeyted and his lands seized into the Kings hand so long as the offender liueth This writ was much in vse during the time the Bishop of Romes aucthoritie was in credit in this land and very necessary it was it should be so for being then two like principal authorities acknowledged within this Land the Spirituall in the Pope and the Temporall in the King the Spirituall 25. Edw. 2. 27. Edw. 3. ca. 1. 38 Edw. 3. ca. 1. 2. 7. Rich. 2. ca. 12. 13. Rich. 2. ca. 2. 2. H. 4. cap. 3. grew on so fast on the temporal that it was to be feared had not these statutes bin prouided to restraine the Popes interprises the spirituall Iurisdiction had deuoured vp the temporall as the temporall now on the contrary side hath almost swallowed vp the spiritual But since the forreine authoritie in Spirituall matters is abolished and eyther Iurisdiction is agnised to be setled wholy and only in the Prince of this land sundry wise mens opinion is there can lye no Praemunire by those Statutes at this day against any man exercising any subordinat Iurisdiction vnder the King whether the same be in the kings name or in his name who hath the same immediatly from the King for that now all Iurisdiction whether it be Temporall or Ecclesiasticall is the Kings and such Ecclesiasticall Lawes as now are in force are called the Kings Ecclesiasticall Lawes and the Kings Ecclesiasticall Courts For that the King cannot haue in himselfe a contrarietie of Iurisdiction fighting one against the other as it was in the case betwéene himselfe and the Pope although he may haue diuersitie of Iurisdiction within himselfe which for order sake and for auoyding of confusion in gouernment he may restraine to certeine seuerall kinds of causes and inflict punishment vpon those that shall go beyond the bounds or limits that are prescribed them but to take them as enemies or vnderminers of his state he can not for the question here is not who is head of the cause or Iurisdiction in controuersie but who is to hold plea thereof or exercise the Iurisdiction vnder that head the Ecclesiasticall or temporall Iudge Neyther is that to moue any man that the Statutes made in former time against such Prouisors which vexed the King and people of this land with such vniust suits doe not onely prouide against such processe as came from Rome but against all others that came elsewhere being like conditioned as they for that it was not the meaning of those Statutes or any of them thereby to taxe the Bishops Courts or any Consistory within this land for that none of them euer vsed such malepert sawsinesse against the King as to call the Iudgements of his Courts into question although they went far in strayning vpon those things and causes which were held to be of the Kings Temporall cognisance as may appeare by the Kings Prohibition thereon framed And beside the Archbishops Bishops and other Prelats of this Land in the greatest heat of all this businesse being then present in the Parliament whith the rest of the Nobilitie disauowed the Popes insolencie toward the King in this behalfe and assured him they would ought to stand with his Maiestie against the Pope in these and all other cases touching his Crowne and Regalitie as they were bound by their allegeance so that they being not guilty of these enterprises against the King but in as great a measure troubled in theyr owne Iurisdiction by the Pope as the King himselfe was in the right of his Crowne as may apppeare out of the course of the said Statutes The word Elsewhere can in no right sence be vnderstood of them or their Consistories although some of late time thinking all is good seruice to the Realme that is done for the aduancement of the Common Law and depressing of the Ciuill Law haue so interpreted it but wythout ground or warrant of the Statutes themselues who whollie make prouision against forreine authoritie and speak no word of domesticall proceedings But
the same word Elsewhere is to be ment and conceiued of the places of remoue the Popes vsed in those dayes being somtimes at Rome in Italy sometimes at Auignion in France semetimes in other places as by the date of the Bulls and other processe of that age may be séene which seuerall remoues of his gaue occasion to the Parliament of inserting the word Elsewhere in the bodie of those Statutes that thereby the Statutes prouiding against Processe dated at Rome they might not bée eluded by like Processe dated at Auignion or any other place of the Popes aboade and so the penaltie thereof towardes the offender might become voyd and be frustrated Neyther did the Lawes of this Land at any time whiles the Popes authoritie was in his greatest pride wythin this Realme euer impute Praemunire to any Spirituall Subiect dealing in anie Temporall matter by any ordinarie power wythin the land but restrained them by Prohibition only as it is plaine by the Kings Prohibition wherein are the greatest matters that euer the Clergie attempted by ordinarie and domesticall authoritie and yet are refuted only by Prohibition But when as certeine busie-headed fellowes were not content to presse vpon the kings Regall iurisdiction at home but would séek for meanes for preferment by forrein authoritie to controul the Iudgements giuen in the kings Courts by processe from the Pope then were Premunires decréed both to punish those audacious enterprises of those factious Subiects and also to check the Popes insolencie that he should not venter hereafter to enterprise such designements against the King and his people But now since the feare thereof is past by reason all entercourse is taken away betwéene the Kings good Subiects and the Court of Rome it is not to be thought the meaning of good and mercifull Princes of this land is the cause of these Statutes being taken away the effect thereof shall remaine and that good and dutifull subiects stepping happily awry in the exercise of some part of their Iurisdiction but yet without preiudice of the Prince or his Regall power shall be punished with like rigor of Law as those which were molesters gréeuers and disquieters of the whole estate But yet notwithstanding the edge of those Premunires which were then framed remaine sharpe and vnblunted still against Priests Iesuits other like Runnagates which being not content with their owne natural Princes gouernment séek to bring in againe that and like forrein authoritie which those Statutes made prouision against but these things I leaue to the reuerend Iudges of the land and others that are skilfull in that profession onely wishing that some which haue most insight into these matters would adde some light vnto them that men might not stumble at them and fall into the daunger of them vnawares but now to Prohibitions A Prohibition is a commaundement sent out of some of the Kings higher Courts of Records where Prohibitions haue bin vsed to be graunted in the Kings name sealed with the seale of that Court and subscribed with the Teste of the chiefe Iudge or Iustice of the Court from whence the said Prohibition doth come at the suggestion of the Plaintife pretending himselfe to be grieued by some Ecclesiasticall or marine Iudge in not admittance of some matter or doing some other thing against his right in his or their iudiciall procéedings commaunding the said Ecclesiasticall or marine Iudge to proceed no further in that cause if they haue sent out any censure Ecclesiasticall or Marine against the plaintife they recall it and loose him from the same vnder paine of the Kings high indignation vpon pretence that the same cause doth not belong to the Ecclesiasticall or Marine Iudge but is of the temporall cognisance and doth appertaine to the Crowne and dignitie Prohibitions some are Prohibitions of Law some other are Prohibitions of fact Prohibitions of Law are those which are set downe by any Law or Statute of this Land whereby Ecclesiasticall Courts are interdicted to deale in the matters therein contained such as are all those things which are expressed in the kings Prohibition as are also those which are mencioned by the second of Edward the sixt where Iudges Ecclesiasticall C. 13. 2. Edw. 6. are forbid to hold plea of any matter contrarie to the effect intent or meaning of the statute of W. 2. Capite 3. The statute of Articuli Cleri Circumspecte agatis Sylua Cedua the treaties De Regia Prohibitione the Statute Anno 1. Edwardi 3. Capite 10. or oght else wherein the Kings Court ought to haue Iurisdiction Prohibitions of fact are such which haue no precise word or letter of Law or Statute for them as haue the other but are raised vp by argument out of the wit of the Deuiser These for the most part are méere quirks and subtilties of law and therfore ought to haue no more fauour in any wise honourable or well ordered Consistorie than the equity of the cause it selfe doth deserue for such manner of shifts for the most part bréed nought else but matter of vexation and haue no other commendable end in them though they pretend the right of the Kings Court as those other Prohibitions of the law doe but the Kings right is not to be supposed by imagination but is to be made plaine by demonstration and so both the Statute of the 18. of Edward the third Capite 5. is where it is prouided no Prohibition shall goe out but where the King hath the cognisance and of right ought to haue and also by the forenamed Statute of Edward the sixt which forbids that any Prohibition shall bee graunted out but vpon sight of the libell and other warie circumstances in the said Statute expressed by which it is to bee intended the meaning of the Lawgiuers was not that euery idle suggestion of euery Attorney should bréed a Prohibition but such onely should bee graunted as the Iudge in his wisdome should thinke worthy of that fauour and of right and equitie did deserue it although as I must déeds confesse the Statute is defectiue in this behalfe for to exact any such precise examination of him in these cases as it is also in other points and is almost the generall imperfection of all statutes that are made vpon Ecclesiasticall causes but I feare me as emulation betwéene the two lawes in the beginning brought in these multitudes of Prohibitions either against or beside law so the gaine they bring vnto the Temporall Courts maintaineth them which also makes the Iudges they cesse not costs and damages in cases of of Consultation although the statute precisely requires their assent and and assignement therin because they would not feare other men from suing out of Prohibitions and pursuing of the same The Prohibitions of the law as haue beene before shewed are neither many nor much repined at because they containe a necessarie distinction betwéene Iurisdiction and Iurisdiction and imply the kings right and subiectes benefit but the
were enemies and their tongue altogether vnknowen vnto them and beside for that this doctrine of Austen concerning Tythes best suted with the generall custome that was then vsed thoroughout all Europe in paying thereof The next Prince after William Conqueror that ordered any thing about payment of Tythes for oght that I haue read to the contrarie was Edward the first who at the petition of the Clergie stablished the Articles of the Clergie which his sonne Edward the second confirmed by his Letters patents vnder his great Seale and by consent of Parliament at the petition of the Clergie in the ix yeare of his Raigne In Edward the thirds time writs of Scire facias were An. 18. Ed. 3. cap. 14. graunted out of the Chauncerie to warne Prelates other Clerks to aunswere for Dismes there but after the matter was well vnderstood by the king the parties were dismissed from the Seculer Iudges for such maner of pleas sauing to the king his right and such as his Auncestors had and were wont to haue of reason During the Raigne of Richard the second Parsons of An. 1. Rich. 2. cap. 14. holie Church were drawen into seculer Courts for their owne Tythes by the name of goods taken away And it was decréed by the King that in such case the generall auerment of the plaintife should not be taken without shewing specially how the same was his Lay cattel By the Statute of the first of the same king cap. 14 it is acknowledged that the pursuing for Tythes of right doth and of old times was wont to pertayne to the Spirituall Court and that the Iudges of holie Church only haue the cognisance in these matters By the Statute of the 15. of Edward the third it is ordered 15. Edw. 3. That Ministers of holie Church neyther for money taken for the redemption of corporall penance nor for proofe and accompt of Testaments nor for trauell taken about the same nor for solemnitie of Marriage nor for any other thing touching the Iurisdiction of Holie Church should be appeached or arrested or driuen to answere the kings Iustices or other ministers thereupon they should haue writs in the Chauncery to the Iustices when they demaunded them In the second yeare of Henry the fourth the Religious of 2. Hen. 4. the order of the Cystercians that had purchased Buls from the Pope to be discharged of the paiment of Tythes were by act of Parliament reduced to that state they were in before In the 5. yeare of the same King it was ordered That 5. Hen. 4. ca. 11. all Farmers and Occupiers of any lands or possessions belonging to any Fryers Aliens should pay all maner of Tythes due to Parsons and Vicars of Holie Church in whose parishes the same were as the Law of holy Church required notwithstanding the same were seised into the K. hand or any Prohibition were made or to be made to the contrary About the 7. yeare of the same king such Religious persons as had purchased Buls from the Pope in the dayes of Richard the second to be discharged of Dismes pertaining to Parish Churches Prebends hospitals or vicarages not put in execution were forbyd from that time foreward to put them in execution or to purchase any other in time to come After king Henry the eight had dissolued the Monasteries and other like Religious houses and sold the Churches and Tythes therto belonging to Lay men who before that time were not capable of the same insomuch as after the dissolution when the Purchasors demaunded the same they were denyed to hold plea therof by reason of their incapacitie a Statute was made in the 27. yeare of the same king whereby 27 Hen. 8. cap. 20. all Subiects of the kings Dominions were to pay theyr Tythes and other dueties of Holy Church according to the Ecclesiasticall Lawes ordinances of the Church of England and after the laudable vses customes of the Parishes and places where they dwelt or occupied lands and the same to be sued for before the Ordinary or some other competent Iudge of the place according to the course processe of the K. Ecclesiast Courts of England which statute because it took little effect by reason of the obstinary of the people in yéelding these dueties to the Laitie who had purchased them that the said Purchasors could neyther by the order or course of the Ecclesiasticall Lawes sue for them in any Ecclesiasticall Court of this land neither was there found any remedy in the Common Law of this land whereby they might bee relieued against them that wrongfully detained the same In the 32. following another Statute was made wherin it was 32. Hen. 8. â—7 enacted that all singuler persons of this Realme and other of the kings dominions of what state degrée or condition souer they were should fully truely and effectually diuide set out yeeld and pay all and singuler their Tithes and Offerings to the owners proprietaries and possessors of Parsonages Vicarages and other Ecclesiastical places according to the Lawfull customes and vsages of the Parish and places where such Tythes or other duties rise and grow due And in case where any are wronged and grieued being either an Ecclesiasticall or lay person for the wrongfull deteining or withholding of the said Tithes or offerings or any part or parcell thereof the same to haue full power and authoritie to conuent the same person or persons so detaining the same before the Ordinarie or other competent Iudge of the place where such wrong was done and the same Ordinarie or competent Iudge to haue power by vertue of the said Act to heare decide and determine the same by definitiue sentence according to the course and procéeding of the Ecclesiasticall law without reseruation of any right to the Temporall Iudge to giue remedie by any suit or action for the recouery of the same sauing in case where an inheritance or fréehold in the premises is claimed and the person claiming is disseised deforced and put from the possession of the same in which cases only the Statute alloweth the Temporall Iudge to take knowledge and that onely for the regaining of the right and the possession of the inheritance so lost After the decease of king Henry king Edward his sonne 2. Edw. 6. c. 13. tendering in like sort the state of the Clergie the benefit of his subiects and the practise of the Ecclesiasticall Courts of this Land made a Statute wherby he did not onely ratify confirme and allow such statutes as his father had formerly made but did further order that euery of the kings subiects from thenceforth should iustly and truely without fraud or deceipt set out and pay all manner of prediall Tythes in their proper kinde as they did rise and happen in such manner as had béene paid within the fortie yeares next before the making of that act or of right or custome ought to haue beene paid with certaine forfeitures
sundry other excesses of Prelats in the like sort If any begin to build a Church or Chappell to the preiudice of an other and it be denounced vnto him by the Parson or parishioners of the other Church that he goe no further in the said works vntill the Law hath determined it whether it be a nusance or not Of the Priuiledge of Prelates and wherein they excéed there priuiledge of canonical purgation which is inioyned when as yet there is no certein proofe of the crime but there is a common voice and fame of the fact which is to be cléered by the oath of him who is charged by the fame that he hath not commytted the fact and the oath of his good neighbors who sweare they beléeue that he hath taken a true oath Of vulgar purgation which was performed by combate and passing by burning fire which is worthily reiected for that therby the innocent many times was condemned and God thereby did seeme to be tempted Of iniuries and wrongs done Of Ecclesiasticall punishments due to offences among which one is That so often as one offendeth so often he is to be punished And that Prelates do not take reward to winke at men in their sinnes or turne corrections into pecuniary paines vpon gaine of fylthie lucre Of Penances and Pardons or remissions Of Excommunication which is the greatest punishment in the Ecclesiasticall iurisdiction and who and in what cases men are to be stroken thereby Of all these goodly and excellent Titles of the Ciuile and Canon Law so full of wisdome so full of varietie so well seruing for euery moment and state of the Common wealth in peace or in warre as nothing can be more the Professors thereof haue very little vse here within this Realme For first for the Ciuile Law beside the two Vniuersities of this land that of Cambridge and the other of Oxford to whom the Kings of this Realme haue granted a larger libertie in the practize of these Lawes than to any other place of the Kingdome for that their purpose was to haue yong men trayned vp 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 haue need of them to deal in with forrein Nations when they were thereto called to which the Lawes of this land serue nothing at all by reason of the difference that is betweene their Law which is either wholy the Ciuile Law or for the most part grounded on it the Law of our Nation a very few Titles are left to the Practisers thereof to deale in most of them seldom and rare in vse as shall be hereafter shewed so that I may well diuide all the profession here of the Ciuile Law with vs into matters ordinarie and extraordinarie The matters of ordinarie conusance of the Ciuile Law here in this Land are Marine matters of which some are Ciuile some are Criminall Ciuile matters are those which concerne eyther the frée vse of the Sea it selfe or the rights that men haue to trade and traffique therupon or the bargaines sales or contracts or as it were contracts that are made or done beyond or vpon the maine Sea or any Créeke thereof or within asmuch space from the Sea as the greatest winter waue runneth out for any matter belonging to any negotiation or merchandize or any other thing to the Ship or trade apperteyning And first for vse of the Sea it selfe the Law holds it to be ff ad legem Rhodian de Iâ—ctâ— tot tit common and that euery one hath right to trade traffique vpon the same so that it be without the preiudice of that Prince or Land to whom the Sea is adioyning The like may be said for the shore it selfe so that it be eyther for the refreshing of themselues with water or victuall or for the repayring of their Ships or buying any thing necessarie thereunto or it be either for vttering of any commoditie they haue or buying any thing againe of the people vpon whose land they touch In which case it were barbarous to repell any comming in peaceable maner albeit it may happen vpon some iealously of the state eyther for that it hath some great forrein Enemy whose continuall inuasion they feare or that the Sea coasts are much infested with Pyrates that in this case ther be made resistance but when it is made manifest by flag of Truce or otherwise they are no other but well meaning men they are to be intertayned with all kindnesse For Contracts in Marine causes some are contracts in déed some are as it were contracts Contracts in déed are all bargaines and sales whatsoeuer made betwéene Marchant and Marchant for any commoditie fraught or traffique in the ship or any sale or bargaine made of the Ship or any thing thereto belonging as Mastes cordage anchorage victuals or any other thing of like nature necessarie for the imployment of the ship Those things which are as it were contracts are those perpetuall rights which are betwéene the Purser or Master of the Ship and the Passengers or betwéene one passenger and an other The perpetuall right which is betwéene the Purser or Master of the ship and the Passengers is that the Purser or Master be answerable for all such wares or goods as are brought into the ship whether it be deliuered to himselfe or any of his Mariners for he ought not only to be iust and honest himselfe but also vse the ministerie of honest people about him and therefore the Master of the ship is no lesse bound for their person than his owne The Passengers againe are honestly and readily to pay the Master of the ship their fraught and all such other charges of dyet and other prouision as they haue put him to wherein if there be any default of any side the Law affordes an action called Exercitoria whereby the one or the other may be relieued The Master of the ship is he who hath the charge of the L. 1. ff de exercitoria action whole anchorage and gouernment of the ship and his office is either to let the ship to hyre or to buy and sell Marchandize or to plie fares or to prouide tacle and furniture for the ship The Purser whom the Law calleth Exercitor Nauis is Dâ—aÌ„ l. prima § 16. de exercit act he to whom all the profit or reuenue of the ship doth come whether it be in his owne right or in an others The Perpetuall right that is betwéene Passengers and Passengers and Saylers and passengers is that in case of eiectments and casting out of goods and other marchandize into the Sea in time of tempests or other dangers by rocks or quick sands for the lightning of the ship because it is for the common good of all that are in the ship and the preseruation of the rest of the fraught of the ship it be made vp with
the common contribution of all for good reason it is that they whose goods are saued hereby should againe with their goods redéeme the others losse according to such proportion of goods as they haue in the ship and the Law of the Sea allowes But in cases of Eiectments the Law of the Sea is this which was taken from the people of Rodes who in oldtime were great seafaring men and discouerers of sundry Countries whose Rules euen to this day are holden for good among al Mariners for the great equitie and indifferencie that is in them that as well the Master or Purser of the ship himself shal contribute for the preseruation of his ship as also the passengers for such ware as they haue in the ship of what sort soeuer it be albeit happily it be but of smal waight as pearls pretious stones and such like and if perchance there be some passengers in the ship who haue no ware nor marchandize in it yet because themselues are a burthen to the ship estimate is to be made of his or their apparell rings and Iewels according to which he or they are to contribute towards the losse of such things as are cast out into the sea neither is there any thing in the whole ship excepted saue onely those things which are put therein to be spent for the common good of all as victuals fuell and such like for those things are not brought in for any one priuat mans vse but for the benefit and seruice of all and so much the rather for that if victuals faile or other like necessaries want euery one must contribute thereto or impart of that which hee hath for his owne priuat prouision but of mens owne bodies vnlesse they be seruants there is no rate to be set because a fréemans body cannot be estéemed In prising estimate is to be made as well of those things which are lost as those things which are saued and the price is to be set downe not for how much they were bought but for how much they might be sold and that for the present lest the contributors should be ouermuch charged Neither is it to the purpose that the goods which were lost might haue béene sold for more for that herein is not regard to bee had of the gaine but of the losse And if any thing that was throwne out were knowne to be decaied or made worse by washing with salt water it is not to be estéemed as a new fresh thing but the price thereof is to bee abated accordingly Now the contribution is to be made in this manner first the losse is to be set down then the rate of those things which are saued out of which must bee drawne an equall portion proportionable to the quantitie of euery mans goods he hath in the ship to make vp the losse deducting out of the loosers goods himselfe so much as is answerable to his proportion so that hee shall neither bee made a cléere sauer nor a cléere looser but in a certaine quantitie ratable to his part But this contribution is in that case to be made if the ship be saued for otherwise if a wrack happen either before the eiectment or in the eiectment then whatsoeuer any of the vectors or passengers catch is his owne neither is there any regard to be had of the losse of the ship or of the goods vnlesse perhaps afterwards they be drawen out of the sea But here we are to note that neither the things that are thus eiected leaue to be the first owners neither become his that taks them vp for because the first owner doth not count them for goods cast away but still hee beares that mind to them that if he may recouer them he will hold them as his owne goods and in consideration of so much as afterward he shall recouer the contribution in the rest shall cease Neither if the Master of the ship himselfe by violence of the tempest shall loose a Maste or a Saile he shall be more allowed therefore than a Carpenter to whom a house is let out to bee built shall bee allowed for his axe or sawe if he breake it Beside in matters of wracke there is as it were a contract betwéene them which haue lost their goods by shipwrack and them vpon whose Lands the said goods are driuen that the same be restored to them or their heires if they come in due time to claime the same and therfore it is precisely forbid by L. ne quid ff de incendio ruina naufragio the Law that no man shall meddle with such goods as are wrecked and such as are proued to haue stolne any thing thereout are holden for robbers for that such goods being cast on land and recouered out of the sea remaine still his who was the owner thereof and descend vpon his heire neither excheat vnto the King neither to any other whom the King L. 1. lib. 11. C. de naufragiis hath priuiledged in this behalfe And therfore the Emperor Constantine the great saith worthily in this case If any ship at any time by shipwrack be driuen vnto the shore or touch at any Land let the owners haue it and let not my Exchequer meddle with it for what right hath my Exchequer in another mans calamitie so that it should hunt after gaine in such a wofull case as this is And yet if no kindred appeare within a yeare and a day or appearing proue not the goods shipwracked to be theirs the goods come to the Exchequer euen by that Law so much that law condemneth carelesnesse which is written Vigilantibus noÌ„ dormientibus And with this agrée the Lawes of this Land as taken out of these imperial laws whereby it is ordered that such goods as are saued out of the wrack shal be kept by the view of the Sherife or some other chiefe Officer and deliuered to the hands of such as are of the place where the goods were found so that if any sue for them and proue them to be his or to haue perished in his kéeping they shal be restored vnto him without delay otherwise they escheat vnto the king or to him to whom the king hath granted the same And if any conuey away any part of the same goods contrary to the law and bee attainted therof he shal be awarded to prison and make fine at the kings wil and yeeld damages vnto the party grieued and a wrack by the lawes of this land is where all liuing things within the ship doe perish but if a man a dog or a cat doe scape out of the ship aliue it is otherwise For matters of contract they are either in the petitorie or in the Possessorie The Petitorie is that where the propertie of any thing is challenged this of all other suits is the hardest because the proofe thereof is very difficill Institut de reruÌ„ dimissione § singulo 〈◊〉 acquirendo reruÌ„ dominio â—â—â—deo toto
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
diuided into Tit. cap. 1. v. 5. seueral Parishes it was the ordinance of Pope Dionisius about the yere 266. frō him deriued into this other realms the distinction thereof was chiefely deuised that it might be knowne of what congregation euery people were and that so they might be trained vp in the Schole of godlinesse vnder their owne Pastor or Minister But that now the diuision of Parishes doth serue to other politike vses it comes not of the first institution thereof which was méere Ecclesiastical but it groweth out of a second cause that is because beeing so fitly and aptly primarily diuided by Ecclesiasticall men as they are the Princes therefore did vse the opportunitie thereof for Temporall seruices subdiuiding the same againe into many Tythings or like smaller diuisions for the more spéedie seruice of the king and better ordering of the common wealth Which our auncient Fathers well knowing neuer called the same in question acknowledging therein the good they had receiued from Ecclesiasticall men by this partition of Countries into Parishes but men of later age being lesse thankfull than they and loath to séeme beholding to Ecclesiasticall Courts for any matter of good order and disposition haue arrogated the same wholy to the Temporall Courts as though the Ecclesiastical Iudge could not as well discerne what two or thrée honest men depose and say as concerning the limits or bounds of a Parish as twelue meane men of the countrie who are vpon like depositions to giue vp their verdict But for the limits of Bishoprickes I acknowledge that they are Temporall for that they were not primarily designed out by Ecclesiasticall men and theyr direction but were assigned to Prouinces or Shires first described and distynguished by Princes but for Parishes neyther reason nor antiquitie concurs with them that they should be temporall or that they should be vsurped or challenged to be of the temporall cognisance And so much for those Prohibitions which they commonly frame out of the 27. and 32. of Henry the eight not that there are no more but these but that hauing a taste of these there may be like Iudgement made of the rest Out of the statute of the 2. of Edward the 6. cap. 13. they vpstart many Prohibitions the first whereof in order of the Statute although the last in practise is the prohibition of treble damages vpon not diuiding and setting out of Tythes or at the least for the not compounding for them before they be carried away Which forfeiture they suggest and thereupon bring a Prohibition and so draw the whole suit of Tythes into their Courts contrary to the true meanning of this Statute which would those treble dammages in case of not iustly diuiding and setting out or not compounding for the Tythes before they be carried away be no lesse recouerable before an Ecclesiastical Iudge according to the Kings Ecclesiasticall Law than the forfeyture of double value by the letting and stopping of them to be caried away whereby they are lost with the costs thereon growing is remediable at the same Law For albeit the clause which is to redresse this wrong be put after that part of the Statute which concernes the stopping and letting of Tythes to be carried away yet when there is as great reason it should stretch it selfe to the first branch of the prouision as to the second and the second branch hangeth on the first by a coniunction copulatiue and there is no hetorogeny or disparitie in the matter whereby it may not be aswell verified in the one branch as in the other I see no reason why it should not equally respect them both according to the rule of the Law Clausula in fine posita refertur ad omnia C. 6. tit 28. l. 1. precedentia maximè quando non resultaret intellectus contratius iuri as here it doth not for the intendment of eyther branch of the Statute is to procure by theyr seuerall forfeytures a iust and true payment of Tythes the recouerie whereof as the precise words of the Statute in one member restrayne vnto the Ecclesiasticall Law so the Identitie of reason in the other member doth confirme it vnto the same Law for where there is the like reason L. Illud ff ad l. Aquiliam or equitie there ought to bee the like disposition or order of Law Beside if the principall cause it selfe be triable in the Ecclesiasticall Court why should not those things which hang thereon be tried in the same Court for they are but as it were accessaries to the principall and so not only follow the nature of the principall but also belong to the Court of the principall and are determinable where the principall is for otherwise happily there might fall out contrary sentences of one and the selfe same thing the one condemning the other absoluing Further in that Court wherein the course of Iustice already is begun the cause may with lesse labour and easier expences be ended being both for the most part determinable by one sentence than that a new processe thereof should begin before an other Iudge who knoweth little or nothing of the principall matter and therefore cannot so easilie decide the accessarie Lastly those which take this course first to surmise a forfeyture then to draw the originall suit whereupon the forfeyture grew into question bring in a proceeding far different from the common style of all well ordered Courts in all Nations among whom the cognusance of the cause triall thereof goeth before and the forfeyture or execution thereof followeth after But in this Hysteron proteron the execution is in the foreward and the triall is in the rereward In which doing they deal much like as Cacus the Giant dealed with Hercules oxen who to thintent that Hercules should not find what way they were gon drew them backward by the tayle into his Caue but as that deuise setued not Cacus but that Hercules had his oxen againe so it is to be hoped the Reuerend Iudges of the land will not long suffer this subtiltie to preuaile but as it came in like a Fore and raigned as a Wolfe so in the end it shall dye and vanish away like a vaine deuise much like the destinie of Boniface the eight for the reuerend Iudges are not only to minister Iustice betweene man man so that euery man may haue his owne and none be eppressed of an other but also they are to carrie an vpright and indifferent hand betwéene Iurisdiction and Iurisdiction yea though themselues be parties to the matter in question so that one Iurisdiction eat not vp an other as the Locusts in Egipt deuoured vp all the greene things of the land An other Rendeuous they make of the words of this Prouiso Law statute priuiledge prescription or composition reall as though all which passeth vnder any or these tearmes belongeth to the triall of the Common Law and not to the cognisance of the Ecclesiasticall Law and that
forsooth because these words and tearmes are expressed in the Statute which is much like vnto that as one would needes haue a house to be Master Peacocks house because he saw a Peacock sit vpon the top thereof But it is not the naming of a thing in a Law or Statute that makes it to be of the Temporall cognisance or otherwise but it is the nature or qualitie of the thing named that rangeth it vnder the one Law or the other So that if the matter ordered in the Law or Statute be temporall the cognisance shall be Temporall if Spirituall then the case is determinable in the Ecclesiasticall Law for this Prouiso is not prohibitorie as the last Prouiso of this statute is whereby Ecclesiasticall Iudges are forbidden to hold plea of any thing that is in the said Prouiso conteyned but it is rather directiue and sheweth where the Ecclesiasticall Iudge is to giue way to immunities and to pronounce for them so that for any thing is conteyned in this Prouiso to the contrary the cognisance of these matters specially Priuiledge Prescription and Composition still remayneth at the triall of the Ecclesiasticall Law as they did before this Prouiso was made De praescripr lib. 2. tit 26. De Priuileg lib. 5. tit 33. for Tythes and other Ecclesiasticall dueties as may appeare by the seuerall Tytles in the same Law hereon written And for the other words Law and Statute therein mentioned when as the King hath two Capacities of gouernment in him the one Spirituall the other Temporall and his high Court of Parliament wherein Lawes are made doth stand aswell of Spirituall men as Temporall men and so ought to stand in both houses if the auncient booke De modo tenendi Parliamenti be true and authenticall which makes the vpper house of thrée states the Kings Maiestie the Lords Spirituall and the Lords Temporall and the Lower house in like sort of thrée other the Knights the Procurators for the Clergie and the Burgesses and his Maiestie hath wythin this Realme aswell Ecclesiasticall Lawyers as Temporall which are no lesse able to iudge and determine of Ecclesiasticall matters than the Temporall Lawyers of temporall businesse It is not to be imagined but as his sacred Maiestie will haue those Lawes to be held Temporall and to haue their constructions from Temporall Lawyers which are made and promulged vpon Temporall rights and causes So also his Highnesse pleasure is and euer hath béene of all his predecessors Kinges and Quéenes of thys Land that such Lawes and Statutes as are set out and publyshed vpon Ecclesiasticall thinges and matters shall bee taken and accompted Ecclesiasticall and interpreted by Ecclesiasticall Lawyers although eyther of them haue interchangeably each others voyce in them to make them a Law And that the King doth infuse life into eyther of the Lawes when as yet their substance is vnperfect and they are as it were Embreos is in Temporall matters by his temporall authoritie and in Spirituall matters by his spirituall authoritie for to that end he hath his double dignitie in that place as also the Ecclesiasticall Prelates sustaine two persons in that place the one as they are Barons the other as they are Bishops So that euen the orders of the house doe euince that they are two sortes of Lawes in that place vnconfounded both in the head and the bodie although for communion sake and to adde more strength to each of them the generall allowance passeth ouer them all And as they rest vnconfounded in the creation of them so ought to be likewise in the execution of them and as the Temporall Law sortes to the Temporall Lawyers so the Spirituall Lawes or Statutes should bée allowed and allotted vnto the Spirituall Lawyers And as the nomination of these words Law or Statute in this precedent Prouiso makes not the Law or statute Temporall but remayneth wholie Ecclesiasticall by reason of the Spirituall matters it doth conteine and the power of him that quickneth it and powreth life thereinto so much lesse can the inserting of these tearmes Priuiledges Prescriptions or Composition reall intitle the Common Law to the right thereof or the Professors of the said Law to the interpretation thereof for that matters of these tytles so far as they concerne Tythes and other Ecclesiasticall dueties haue béen euermore since there hath been any Ecclesiasticall Law in this land which hath been neere as long as there hath béen any profession of Christianitie with vs of Ecclesiasticall ordinance neyther euer were of the Temporall cognisance vntill new of late that they transubstantiat euery thing into their owne profession as Midas turned or transubstanciated euery thing that he touched into gold But here it will not be amisse to inquire since Tythes came in the beginning of the Primitiue Church wythin a little time after the destruction of Ierusalem and the subuersion of the Iewes policie vnto the Christian Church and Common wealth void of all these incumbrances as shall appeare after by the testimonie of sundrie of the auncient Fathers which were néere the Apostles time how it comes to passe since Tythes are no lesse the Lords porcion now than they were then and in the Patriarkes time before them that these gréeuances haue come vpon them more vnder the Gospell than euer they did vnder the Law for then neuer any Lay man durst stretch out his hand vnto them to diminish any part thereof but he was charged Malach. 3. with robberie by the Lords owne mouth and in punishment thereof the Heauens were shut vp for gyuing raine vnto the earth and the Palmer worme and Grashopper were sent to deuour all the gréene things vpon the earth And for Ecclesiasticall men it is not read any where in the Scripture that euer they attempted to graunt out anie priuiledge of Tythes to any person other than to whom they were disposed by the Law or to make anie composition thereof betwéene the Lay Iew and the Lords Leuites euery of the which haue beene not only attempted agaynst the Church in Christianitie but executed with great greedynesse so far worse hath béene the state of the Ministerie vnder the Gospell than was the condition of the Priestes and Leuites vnder the Law The beginning whereof although it be hard for me to finde out because there is small memory thereof left in Stories yet as far as I can by all probabilities coniecture this great alteration in Ecclesiasticall matters came by two occasions the one by the violence of the Laitie thrusting themselues into these Ecclesiasticall rights contrarie to the first institution thereof for when they were first receyued into the Christian world they were receyued and yéelded to for the benefit of the Clergie only as in former time vnder the Law they had béen for the vse of the Priestes and Leuites only The other was the too too much curiositie of Schoolmen who beeing not content with the simple entertaynment of Tythes into the Church as the auncient fathers
Parsonage and diuiding out his Tenancies may retaine and kéepe to himselfe and his said tenants so much of the said Manor discharged of tythes as him listeth and assigne ouer the rest for the maintenance of the Minister and that his tenants after may challenge exemption from tythe as the Bishop did for that they were exempted by his capacitie while they were in his owne hand Neither of which is so by Law for insomuch as a Bishop is an owner of a Manor and is a prime-founder of a benefice he hath no more right to the Tyth thereof than a méere Lay Patâ—on hath who for his zeale to the Church and to incourage other to be like affected to Gods Religion as himselfe is may haue some small pension assigned him and his for euer by the Bishop out of the same benefice in acknowledgement of the erecting founding or endowing thereof but for any portion of Tyths to him or his he could neuer retain any nor can to this day neither yet can the Bishop himselfe vnlesse perhaps he will be like to Ananias and Zaphira ActoruÌ„ 5. which held part of the price of their ground from the Lord and were worthily punished for the same And as they cannot detaine it themselues being spirituall men so much lesse can they passe it ouer to any Lay man for that Lay people neither by Gods Law neither by the Canons and Decrees of the Church were euer capable of them yea it was so Ca. quamuis de decimis ibi Abnum 5. far off that euer any Bishops durst infeoffe any Lay man in Tythe that who so did it was to bee deposed and excommunicated vntill such time as hee restored the same to the Church againe And to say the truth Tythes were neuer Caâ—â—a nobis de decimis at any time in Bishops as in Fee but in vetie few cases as were the Bishop had a Parish himselfe distinct from other Parishes for sundry Bishops in sundry places had so and then the Tythes of the Parish did belong vnto them in such sort as they doe now belong vnto the Incumbents thereof Or if the Tythe were not within any Parish for then in like sort it did belong vnto the Bishop of the Diocesse in whose Territorie it was albeit now within this Realme it belongs vnto the King Or where the Parishes were vndistinguished for then were they the Bishops not to conuert vnto his owne vse but to diuide among the Ministers and Clerkes which laboured in the Diocesse vnder him in Preaching Teaching Ministring of the Sacraments and executing of other Ecclesiasticall functions euery one according to his desert Or that it were the fourth part of the Tythe for then did it belong to the Bishop in Law towards his owne reliefe and the repayring of the Parish Church where they grew and not to confer or bestow the same as him thought best which notwithstanding now also is growne out of vse and nothing left vnto the Bishop from the Churches of his Diocesse beside his Procurations and Synodals to be paid by the Incumbents in the time of his Visitation Beside which cases it cannot bee found that euer any Bishop had to doe with Tythe much lesse to alyen dispose and transferre the same as him listed and to whom him listed For it is verie certaine Bishops indowments themselues in the beginning of the Primitiue Church stood not in Tythes but in good Temporall and finable Lands which gratious Princes and other good benefactors of former Ages C. de sacro sanct Eccl. de EpÌ„is clericis tot titul bestowed vpon them as it doth appeare out of the first booke of the Code whereas sundry Lawes of Constantine the great and other gratious Emperoues euen vnto the time of Iustiman himselfe are recorded both for the conserring of Lands vpon the Church and those such as should neither be barren neither charged with Statutes or other debts of the Exchequer as also for the conseruing and Authent mâ—lto magis C. de sacro sanct Eccle. safe kéeping of such Lands as were in such sort conferred and bestowed vpon them is manifest also out of our owne Stories both in Britans time during whose Raigne there Iocelin of 〈◊〉 in his booke of British Bishops Stow fol. 37. are reported to haue beene fiftéene Archbishops in the Sea of London well indowed with possessions and if they were Archbishops then must necessarily also follow there were Bishops for that these are respectiue one to the other The like is written of the Sarons Raigne vnder whom the Hen. Huntington lib. 3. Sea of Canterburie the Sea of London the Sea of Rochester and the Sea of Yorke for these foure were first set vp againe after the Sarons first receiued the faith at the Preaching of Augustine Melitus and Iustus Paulinus are namely reported to haue béene inriched with large Dominions Charta regis â—theâ—be â—i charta Wiâ—l primi Stâ—w fol. 77. and possessions giuen to euery of them for their maintenance And what course hath beene held with Bishopricks erected since the Conquest the ruinated state of them and others doe shew among whose auncient liuelod is not to bee found any indowment by Tythes but such as of late haue come vnto their hands and that for the most part by change of their good finable Lands for impropriat parsonages And therefore much to blame are some of our time who whenas their predecessors in former ages neuer admitted of any impropriat parsonage into their possessions but only in such cases as haue béene before remembred for the name and place of a Bishop will be content to make Glaucus change with Diomede that is giue Homer Illiad 6. their golden Armour for the others brasen Armour or doe like as Roboam did who in sted of the golden shields that his Regum 1. c. 1â— father Salomon did hang vp in the Temple put in their places Shields of brasse for the change is no better and so well know they that procure the same otherwise would they neuer so instantly desire it And therefore an vnsutable deuise was that and contrary to the course of former Ages which was procured in the first yeare of the late blessed Quéene not as I thinke by her owne séeking for she good Ladie did in this as she was directed but vpon some other policie that it should bee lawfull for her to take away so much fineable Lands from any of the Bishops as her pleased and to giue them back againe in lieu thereof Tenths or Parsonages impropriat which hath patcht them vp againe but with vnsutable péeces to their coate whereby they are both brought into obloquie as though they detained the due prouision of the Parochian Church from it and are set in a way ready to be ouerthrowne if euery bird haue his owne fether againe Authent de noÌ„ alienand aut permutand reb Eccl. c. § si minus And therefore those good
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