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
us in the Ecclesiasticall Courts is that I find Glanvill Glanvill lib. 12. cap. 15 de Legibus Angliae who himselfe lived under Henry the second and was Lord chiefe Justice of England in his dayes sort to the Ecclesiasticall Courts the plea of Tenements where the suit is betweene two Clerkes or betweene a Clerke and a Lay man and the plea is De libera eleemosina feodi Ecclesiastici non petitur inde recognitio whether the frank fee be Lay or Ecclesiasticall where also is farther added that if it be found Idem lib. 13. cap. 25. by the verdict of legall and sufficient men that it is of Ecclesiasticall fee it shall not bee after drawne to Lay fee no though it be held of the Church by services thereunto due and accustomed secondly whereas land is demaunded in Idem lib. 7. cap. 18. marriage by the husband or the wife or their heire and the demaund be against the giver or his heire then it shall be at the choice of the demander whether he will sue for the same in the court Christian or in the secular Court For saith he it pertaineth unto the Ecclesiasticall Courts to hold plea of dowries which he calleth Maritagia if so be the plaintife so make choice of those Courts for the mutuall affiance that is there made betweene the man and the wife for marriage to be had between them and there is a dowry promised unto the man by the womans friends neither shall this plea bee carried unto the temporall Courts no though the lands be of Lay fee so that it be certaine the suit is for a Dowry but if the suit be against a stranger it is otherwise Againe the Kings prohibition for bidding the Clergie the dealing in many things which are of Lay fee forbids them Anno 24. Ed. 1. no one thing that is of Ecclesiasticall fee and to shew the Princes meaning precisely therein that it was not his intent by that Prohibition to restrain the Ecclesiasticall Judges for proceeding in matters of Ecclesiasticall fee hee sets downe in very tearmes these words Recognisances touching Lay fee as though he would hereby signifie to all men that he would not touch matters of Ecclesiasticall fee which did then wholly and properly appertaine to the triall of the Christian Court as hath beene before vouched out of Glanvill who for the place he then held may be thought to have knowne the Lawes of England as then they stood and the right interpretation thereof as well as any man then or now living And yet because there were some things of Lay fee which the Clergie then had cognisance of and as yet have in some measure as causes and matters of mony chattels and debts rising out of Testaments or Matrimonie because hee would have whatsoever belonged to the Clergy to be undoubted excepteth them from those things which belong to the Crown and dignity and leaveth them to the ordering of the Christian Courts which is nothing else but an affirmance of that which Glanvill and the rest of the ancient English Lawyers Bracton and Britton said before Adde hereunto the provinciall Constitution Aeterna de poenis made in the dayes of Henry the third which plainly shewes that in those dayes all personall suits betweene either Clerk Clerk or between Lay-men complaynants Clerkes defendants for ever the Plaintife must follow the Court of the Defendant which to the Ecclesiasticall men then was the Ecclesiasticall Court were tryed by the Spirituall Law not by the Temporall Law which practise for that it doth accord with the judgement of those ancient Lawyers that have beene before cited and with the Prohibition it selfe which there restraineth onely calling of Lay men to make recognisances of matters of Lay see it may be a great argument that these things were of the Ecclesiasticall right in those dayes from which I see not how the Ecclesiasticall Courts are falne for I see neither Law nor Statute to the contrary unlesse perhaps they will say the Statute of the 25. of Henry 8. cap. 19. tooke the same away as being hurtfull to the Kings Prerogative royall and repugnant 25. H. 8. cap. 19. to the Lawes Statutes Customes of this Realme which whether they be or be not taken away by the stroake of that Statute I leave it to men of better experience in these matters than my selfe to judge But yet this I finde by experience to be true That where there are two divers jurisdictions in one Common-wealth unlesse they be carefully bounded by the Prince an equall respect carried to both of them so farre as their places and the necessary use of them in the Common-wealth requires as the advancement of the one increaseth so the practise of the other decreaseth specially if one have got the countenance of the State more than the other which is the onely cause at this day of the overflowing of the one and the ebbing of the other but it is in his Sacred Majestie to redresse it not by taking any thing from that profession that is theirs but restoring to this profession that which is their owne but hereof 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 SECT 5. That some titles of the Canon Law are granted to be of absolute use with us and that of some other there is question made FOr the rest of the matters that belong to the tryall of the Ecclesiasticall Courts some are acknowledged to be absolutely in use some other are challenged to be but in a certaine measure in use In absolute use are those which never had any opposition against them which almost are those alone which belong to the Bishops degree or order for all things which come within the compasse of the Ecclesiasticall Law are either belonging to the Bishops degree or his jurisdiction To his degree or order belong the ordering of Ministers Deacons the confirmation of Children the dedication of Churches and Churchyards and such like none of which have beene challenged at any time to belong to any other Law The second sort is of them that belong to the Bishops jurisdiction which is partly voluntary partly litigious Voluntarie is when those with whom the dealing is stand not against it but litigious it is when it is oppugned by the one part or the other of this latter sort many things in sundry ages have beene called in question but yet rescued and recovered againe by the wise and grave Judges themselves who have found the challenge of them to be unjust But what doth belong to either of them in private or what causes doe appertaine to the whole Jurisdiction in generall because they have beene already particularly set downe by that famous man of worthy memory Doctor Cosin in his Cosin in his Apologie part 1. c. 2. learned Apologie for certaine proceedings in Ecclesiasticall Courts I will not make a new catalogue of them but send the Reader for the knowledge thereof unto his Booke but yet in my
passage will I note which of them have beene most chiefly oppugned and as occasion shall fall out speake of them PART III. CHAP. I. SECT 1. How the Jurisdiction which is of Civile and Ecclesiasticall cognisance is impeached by the Common Law of this Land and first of the impeachment thereof by the Statute of Praemunire facias ANd thus much as concerning those parts of the Ecclesiasticall Law which are here in use with us Now it followeth to shew wherby the exercise of that Jurisdiction which is granted to bee of the Civile and Ecclesiasticall cognisance is defeated and impeached by the Common Law of this Land which is the third part of this Division The impeachment therefore is by one of these meanes by Praemunire by Prohibition by Injunction by Supersedeas by Indicavit or Quare impedit but because the foure last are nothing so frequent nor so harmfull as the others and that this Booke would grow into a huge volume if I should prosecute them all I will onely treat of the two first and put over the rest unto some better opportunitie A Praemunire therefore is a writ awarded out of the Kings What is a Praemunire Bench against one who hath procured out any Bull or like proces of the Pope from Rome or else-where for any Ecclesiasticall place or preferment within this Realme or doth sue in any forreine Ecclesiasticall Court to defeat or impeach any Judgement given in the Kings Court whereby the body of the offender is to bee imprisoned during the Kings pleasure his goods forfeited and his lands seized into the Kings hand so long as the offender liveth This writ was much in use during the time the Bishop of Rome's authoritie was in credit in this land and very necessarie it was it should be so for being then two like principall authorities acknowledged within this Land the Spirituall in the Pope and the Temporall in the King the Spirituall 25. Ed. 2. 27. Ed. 3 c. 1. 38 Ed. 3. c 1. 2. 7. Rich. 2. c. 12. 13. Rich 2. c. 2. 2. H. 4 cap. 3. grew on so fast on the Temporall that it was to be feared had not * Neverthelesse even out of these Statutes have our Professours of the Common Law wrought many dangers to the Jurisdiction Ecclesiasticall threatning the punishment conteined in the Statute Ann. 27. Edw. 3. 38. ejusdem almost to every thing that the Court Christian dealeth in pretending all things dealt with in those Courts to be the disherison of the Crowne from the which and none other fountaine all Ecclesiasticall Jurisdiction is now derived whereas in trueth Sir Thomas Smith saith very rightly and charitably that the uniting of the Supremacie Ecclesiasticall and Temporall in the King utterly voideth the use of all those Statutes Nam cessante ratione cessat lex and whatsoever is now wrought or threatned against the Jurisdiction Ecclesiasticall is but in emulation of one Court to an other and by consequent a derogation of that authority from which all Jurisdiction is now derived and the maintenance whereof was by those Princes especially purposed D. Cowel in the Interpreter these Statutes beene provided to restraine the Popes enterprises the spirituall Jurisdiction had devoured up the temporall as the temporall now on the contrary side hath almost swallowed up the spirituall But since the forreine authoritie in spirituall matters is abolished and either Jurisdiction is agnised to be setled wholly and onely in the Prince of this land sundry wise mens opinion is there can lye no Praemunire by those Statutes at this day against any man exercising any subordinate Jurisdiction under the King whether the same bee in the Kings name or in his name who hath the same immediatly from the King for that now all Jurisdiction whether it be Temporall or Ecclesiasticall is the Kings and such Ecclesiasticall Lawes as now are in force are called the Kings Ecclesiasticall Lawes and the Kings Ecclesiasticall Courts for that the King cannot have in himselfe a contrarietie of Jurisdiction fighting one against the other as it was in the case betweene himselfe and the Pope although hee may have diversitie of Jurisdiction within himselfe which for order sake and for avoyding of confusion in government hee may restraine to certaine severall kindes of causes and inflict punishment upon those that shall goe beyond the bounds or limits that are prescribed them but to take them as enimies or underminers of his state he cannot for the question here is not who is head of the cause or Jurisdiction in controversie but who is to hold plea thereof or exercise the Jurisdiction under that head the Ecclesiasticall or Temporall Judge Neither is that to move any man that the Statutes made in former times against such Provisors which vexed the King and people of this land with such unjust suits doe not only provide against such Proces as came from Rome but against all others that came else-where being like conditioned as they for that it was not the meaning of those Statutes or any of them therby to taxe the Bishops Courts or any Consistory within this land for that none of them ever used such malepert sawcinesse against the King as to call the Judgements of his Courts into question although they went farre in strayning upon those things and causes which were held to be of the Kings temporall cognisance as may appeare by the Kings Prohibition thereon framed And beside the Archbishops Bishops and other prelates of this Land in the greatest heat of all this businesse being then present in the Parliament with the rest of the Nobility disavowed the Popes insolencie toward the King in this behalfe and assured him they would and ought to stand with his Majestie against the Pope in these and all other cases touching his Crowne and Regalitie as they were bound by their allegeance so that they being not guilty of these enterprises against the King but in as great a measure troubled in their owne jurisdiction by the Pope as the King himselfe was in the right of his Crowne as may appeare out of the course of the said Statutes The word Elsewhere can in no right sence be understood of them or in their Consistories although Et le stat est in Curia Romana vel alibi le quel alibi est a entender en la Court l'Euesque issint que si hōme soit sue la pur chose que appent al Commen ley il aura Praemunire Fitzherb Nat. Bre. Tit. Praemunire facias some of late time thinking all is good service to the Realme that is done for the advancement of the Common Law and depressing of the Civile Law have so interpreted it but without ground or warrant of the Statutes themselves who wholly make provision against forreine authority and speake no word of domesticall proceedings But the same word Elsewhere is to be meant and conceived of the places of remove the Popes used in those dayes being
somtimes at Rome in Italy somtimes at Avignion in France sometimes in other places as by the date of the Bulls and other processe of that age may be seene which severall removes of his gave occasion to the Parliament of inserting the word Elsewhere in the body of those Statutes that thereby the Statutes providing against Processe dated at Rome they might not bee eluded by like Processe dated at Avignion or any other place of the Popes aboade and so the penaltie thereof towardes the offender might become voyde and bee frustrated Neither did the Lawes of this Land at any time whiles the Popes authoritie was in his greatest pride within this Realm ever impute a Praemunire to any Spirituall Subject dealing in any Temporall matter by any ordinary power within the Land but restrained them by Prohibition onely as it is plaine by the Kings Prohibition wherein are the greatest matters that ever the Clergie attempted by ordinary and domesticall authority and yet are refuted onely by Prohibition But when as certaine busie-headed fellowes were not content to presse upon the Kings Regall jurisdiction at home but would seeke for meanes for preferment for forrain authority to controule the Judgments given in the Kings Courts by processe from the Pope then were Praemunires decreed both to punish those audacious enterprises of those factious Subjects and also to check the Popes insolencie that hee should not venter hereafter to enterprise such designments against the King and his people But now since the feare thereof is past by reason all entercourse is taken away betweene the Kings good Subjects and the Court of Rome it is not to bee thought the meaning of good and mercifull Princes of this Land is that the cause of these Statutes being taken away the effect thereof should remain and that good and dutifull Subjects stepping happily awry in the exercise of some part of their jurisdiction but yet without prejudice of the Prince or his Regall power shall bee punished with like rigour of Law as those which were molesters greevers and disquieters of the whole estate But yet notwithstanding the edge of those Praemunires which were then framed remaine sharpe and unblunted still against Priests Jesuites and other like Runnagates which being not content with their owne naturall Princes government seeke to bring in againe that and like forraine authoritie which those Statutes made provision against but these things I leave to the reverend Judges of the Land others that are skilfull in that profession onely wishing that some which have most insight into these matters would adde some light unto them that men might not stumble at them and fall into the danger of them unawares but now to Prohibitions SECT 2. The impeachment thereof by Prohibition and what it is A Prohibition is a commandement sent out of some of the Kings higher Courts of Records where Prohibitions have beene used to be granted in the Kings name sealed with the seale of that Court and subscribed with the Teste of the chiefe Judge or Justice of the Court from whence the said Prohibition doth come at the suggestion of the Plaintife pretending himselfe to be grieved by some Ecclesiasticall or marine Judge in not admittance of some matter or doing some other thing against his right in his or their judiciall proceedings commanding the said Ecclesiasticall or marine Judge to proceed no further in that cause and if they have sent out any censure Ecclesiasticall or Marine against the Plaintife they recall it and loose him from the same under paine of the Kings high indignation upon pretence that the same cause doth not belong to the Ecclesiasticall or Marine Judge but is of the temporall cognisance and doth appertaine to the Crowne and dignitie Of Prohibitions some are Prohibitions of Law some other are Prohibitions of Fact Prohibitions of Law are those which are set downe by any Law or Statute of this Land whereby Ecclesiasticall What are Prohibitions of Law Courts are interdicted to deale in the matters therein contained such as are all those things which are expressed in the Kings Prohibition as are also those which are mentioned by the second of Edward the sixth where Judges Ecclesiasticall are forbid to hold plea of any matter contrary to the effect intent or meaning of the Statute of W. 2. Capite 3. The Statute of Articuli Cleri Circumspectè agatis Sylva Caedua the treaties De Regia Prohibitione the Statute Anno 1. Edwardi 3. Capite 10. or ought else wherein the Kings Court ought to have Jurisdiction Prohibitions of fact are such which have no precise word or letter of Law or Statute for them as have the other but What are Prohibitions of fact are raised up by argument out of the wit of the Devisor These for the most part are meere quirks and subtilties of law and therefore ought to have no more favour in any wise honourable or well ordered Consistorie than the equity of the cause it selfe doth deserve for such maner of shifts for the most part breed nought else but matter of vexation and have no other commendable end in them though they pretend the right of the Kings Court as those other Prohibitions of the Law doe but the Kings right is not to be supposed by imagination but is to be made plaine by demonstration and so both the Statute of the 18. of Edward the third capite 5. is where it is provided that no Prohibition shall goe out but where the King hath the cognisance and of right ought to have and also by the fore-named Statute of Edward the sixth which forbids that any Prohibition shall be granted out but upon sight of the libell and other warie circumstances in the said Statute expressed by which it is to be intended the meaning of the Law-givers was not that every idle suggestion of every Attourney should breed a Prohibition but such onely should bee granted as the Judge in his wisdome should thinke worthy of that favour and if right and equitie did deserve it although as I must needs confesse the Statute is defective in this behalfe for to exact any such precise examination of him in these cases as it is also in other points and is almost the generall imperfection of all Statutes that are made upon Ecclesiasticall causes but I feare mee as emulation betweene the two Lawes in the beginning brought in these multitudes of Prohibitions either against or beside law so the gaine they bring unto the Temporall Courts maintaineth them which also makes the Judges they cesse not costs and damages in cases of consultation although the Statute precisely requires their assent and assignement therein because they would not deterre other men from suing out of Prohibitions and pursuing of the same The Prohibitions of the law as have beene before shewed are neither many nor much repined at because they containe a necessary distinction betweene Jurisdiction and Jurisdiction and imply the Kings right and Subjects benefit but the
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
into England to reëstablish the Faith decayed by the Saxons who set downe sundry ordinances for the Church framed it in uniformity of Prayer and government to that which then was used in the Church of Rome but long before Aug. time as it may by our Stories appeare even in the dayes of King Lucius who sent to Elutherius a Bishop of Rome for Ethelward lib. unico learned men to instruct him and his people in the Faith which was about a hundred and forty yeares after the Ascention of our Lord Jesus Christ the Faith of Christ was here preached in Britaine and fifteene Archbishops are by our Stories reported one to have succeeded Iocelin of Furnes in his Booke of Brittish Bishops Marianus Scotus an other in the See 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 provision for the Ministerie so that I assure my selfe the payment of Tythes was farre more ancient than the time of Augustine albeit the Conquerour citeth there the authoritie of Austin rather than any former precedent of the Britons both for that the doctrine of Austin was better knowne unto the Saxons among whose Ancestours Austin taught governed as an Archbishop than any of the Fathers of the Brittish Church to whom the Saxons were enemies and their tongue altogether unknowne unto them and beside for that this doctrine of Austin concerning Tythes best suited with the generall custome that was then used thoroughout all Europe in paying thereof The next Prince after William the Conquerour that ordered any thing about payment of Tythes for ought that I have read to the contrary was Ed. 1. who at the petition of the Clergie established the Articles of the Clergie which his Sonne Edw. 2. confirmed by his Letters Patents under his great Seale by consent of Parliament at the petition of the Clergie in the IX yeare of his Reigne In Edward the thirds time Writs of Scire facias were granted An. 18. Ed. 3. cap. 14. out of the Chancerie to warne Prelates and other Clerks to answer for Dismes there but after the matter was well understood by the King the parties were dismissed from the Secular Judges for such manner of pleas saving to the King his right and such as his Ancestours had and were wont to have of Reason During the Reigne of Richard the second Parsons of holy Church An 1. Rich 2. cap. 14. were drawne into secular Courts for their owne Tythes by the name of goods taken away And it was decreed by the King that in such case the generall averment of the plaintife should not be taken without shewing specially how the same was his Lay-cattell 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 pertaine to the Spirituall Court and that the Judges of 15. Ed. 3. holy Church onely have the cognisance in these matters By the Statute of the 15. of Edw. the third it is ordered That Ministers of holy Church neither for money taken for the redemption of corporall penance nor for proofe and account of Testaments nor for travell taken about the same nor for solemnitie of Marriage nor for any other thing touching the Jurisdiction of holy Church should be appeached or arrested or driven to answer the Kings Justices or other Ministers and thereupon they should have writs in 2. Henr. 4. the Chancerie to the Justices when they demanded them In the second yeare of Henry the fourth the Religious of the order of the Cystercians that had purchased Buls from the Pope to be discharged of the payment of Tythes were by act of Parliament reduced 5. H. 4 C. 11. to that state that they were in before In the 5. yeare of the same King it was ordered That all Farmers and Occupiers of any lands or possessions belonging to any Fryers Aliens should pay all manner of Tythes due to Parsons and Vicars of holy Church in whose Parishes the same were as the Law of holy Church required notwithstanding the same were seised into the Kings 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 bee discharged of Dismes pertaining to Parish Churches Prebends Hospitals or Vicarages not put in execution were forbid from that time forward to put them in execution or to purchase any other in time to come After King Henry the eigth had dissolved the Monasteries and other like religious houses and sold the Churches and Tythes thereto belonging to Lay men who before that time were not capable of the same insomuch as after the dissolution when the Purchasers demanded the same they were denied to hold plea thereof by reason 27. Hen. 8. cap. 20. of their incapacitie a Statute was made in the 27. yeare of the same King whereby all Subjects of the Kings Dominions were to pay their Tythes and other dueties of holy Church according to the Ecclesiasticall Lawes and ordinances of the Church of England and after the laudable uses and customes of the Parishes places where they dwelt or occupied lands and the same to bee sued for before the Ordinarie or some other competent Judge of the place according to the course and processe of the Kings Ecclesiasticall Courts of England which Statute because it tooke little effect by reason of the obstinacie of the people in not yeelding these duties to the Laitie who had purchased them and that the said Purchasers could neither 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 be releeved against them that wrongfully detained the same Therefore in the 32. following an other Statute was made wherein it was 32. Hen. 8. c. 7. enacted that all singular persons of this Realme and other of the Kings Dominions of what state degree or condition soever they were should fully truely and effectually divide set out yeeld and pay all and singular their Tythes and Offerings to the owners proprietaties and possessors of Parsonages Vicarages and other Ecclesiasticall places according to the lawfull customes and usages of the Parish and places where such Tythes or other duties rise and grow due And in case where any are wronged and greeved being either an Ecclesiasticall or Lay person for the wrongfull deteining or with-holding of the said Tythes or Offerings or any part or parcell thereof the same to have full power and authoritie to convent the same person or persons so deteining the same before the Ordinarie or other competent Judge of the place where such wrong was done and the same Ordinarie
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
rest shall cease Neither if the Master of the ship himselfe by violence of the tempest shall lose a Maste or a Saile shall hee be more allowed therfore than a Carpenter to whom a house is let out to be built shall be allowed for his axe or sawe if hee breake it Beside in matters of wrack there is as it were a contract betweene them which have lost their goods by shipwracke and them upon whose Lands the said goods are-driven that the same be restored to them or their heires if they come in due time to claime the same and therefore it is precisely forbid by the Law that no man shall meddle with such L. ne quid ff de incendio ruina naufragio goods as are wrecked and such as are proved to have stolne any thing thereout are holden for robbers for that such goods being cast on land recovered out of the sea remain still his who was the owner thereof and descend upon his heire neither excheat unto the King neither to any other whom the King hath priviledged in this behalfe And therfore L. 1. lib. 11. C. de naufragiis the Emperour Constantine the great saith worthily in this case If any ship at any time by shipwracke be driven unto the shoare or touch at any land let the owners have 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 prove not the goods shipwracked to be theirs the goods come to the Exchequer even by that Law so much that law condemneth carelesnesse which is written Vigilantibus non dormientibus And with this agree the Lawes of this Land as taken out of these imperiall lawes whereby it is ordered that such goods as are saved out of the wracke shal be kept by the view of the Sherife or some other chiefe Officer and delivered to the hands of such as are of the place where the goods were found so that if any sue for them prove them to be his or to have perished in his keeping they shall be restored unto him without delay otherwise they escheat unto the King or to him to whom the King hath granted the same And if any convey away any part of the same goods contrary to the law and be attainted thereof he shall be awarded to prison and make fine at the Kings will and yeeld dammages unto the party grieved and a wrecke by the lawes of this land is where all living things within the ship doe perish * Mes si ud homme ou un chien â—u câ—tte escape â—iue i 〈…〉 t que le partiea que les biens sont veigu deins lan jour procue les biens destreses il avera eux arere per provision del Statute de Westminst I. cap. 4. fait en les â—ours del Râ—y E F. 1 but if a man a dog or a cat doe scape out of the ship alive it is otherwise For matters of contract they are either in the petitorie or in the Possessorie The Petitorie is where the property of any thing is challenged this of all other suites Institut de rerum dimissione § singulorum ff de acquirendo rerum dominio l. adeo toto 〈…〉 ul C. de qua driennij prescript l. bene is the hardest because the proofe thereof is very difficill for albeit the propertie of things may bee got by many meanes as well by the law Civill as by the law of Nations yet it is not a thing so easie to be proved for that there must concur many things to the proofe of a property otherwise you shall faile in your suit as in a case of bargaine and saile that there was such a contract between the buyer and the seller that there was either money paid for it or that he that sold it was content to take the buyers word for it C de 〈…〉 uirend possess l. 1. ext c. 1. de consuetudâ—n that delivery was made thereof otherwise the property passeth not but onely in some few cases in which neither possession nor delivery is required Lastly that he which sold it was rightfull owner of it otherwise can he not passe over a thing he had no right unto The Lordship or property of things is bipartite for either it is direct or full such as men have when they have not only the thing it selfe whereof they are Lords or Proprietaries but also the use and commodity thereof or else it is profitable as is the hold of Tenants and Farmers who have the use gaine and possession of the thing but the Lord the property and rent in acknowledgement of his right and Soveraignty The Possessorie is that right whereby the use or possession of a thing is claimed of which there be three sorts for it is either in getting of the possession of that a man hath not or in keeping of the possession of that a man hath or in recovering and regaining of the possession of that which is lost The proceeding in all these Civile matters is by Libell concluding to the action the partie agent giving caution to prosecute the sute and to pay what shall be judged against him if he faile in the sute the Defendant on the contrarie part securing his adversarie by sufficient suertie or other caution as shall seeme meete for the present to the Judge that he will appeare in Judgement and will pay that which shall be adjudged against him and that hee will ratifie and allow all that his Proctor shall doe in his name for to all these ends satisdation in Judgement is which is nothing else but a course to secure the adversarie of that which is in debate before the Judge that on what side soever the cause shall have an end the clients may be sure to get that which by law shall be adjudged unto them SECT 3. What are the Criminall marine matters whereof the Law Civile holdeth plea heere with us and what proceeding they have ANd so much of those Civile Marine matters whereof the Civile Law heerè in England usually holdeth plea. Now of the Criminall matters which belong to that Court but yet by way of Commission from the Prince and that is that horrible crime of Piracie detested of God and man the actors werein Tully calleth Enemies to all and to Cicer. 3 lib off whom neither faith nor oath is to be kept Piracie is called of the Greeke word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is * In an Attick sense for they said 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and from this sense 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pirates as the Scholiast of Sophoâ—les hath noted upon Ajax Deceptio in Latin and in English Deceipt for that many times they pretend friendship when they intend nothing
Archbishops and many other Bishops made this Law for holy Church 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 aelcum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 men be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is Wee command all Christian men by their Christianitie to pay Tythes Church-sceat and Almesfee if any refuse to doe it let him be accursed Concerning the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mentioned in the Law it was that Almes-money which was called the Peterpence for when Ina the West Saxon King went in pilgrimage to Rome he made it a Law to his Subjects that every house should pay a yearely pennie to the Pope this was to be tendred at S. Peters tyde as appeareth by Edgars Law num 4. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. See also the Lawes of Cnute and Edward the Confessour And whereas we finde the curse of Excommunication here annexed by the Law to this Sacriledge of with holding the Tenth it is not without a parallel for amongst those solemne Execrations which by a Councell held here at Oxford were to be openly pronounced foure severall times in every yeare wee finde these Church-robbers twice branded with Anathâ—ma In the first Article thus An they ben accursed the rightys of holy Chyrche as in Londys tenÌ„ts rent possessions maryces lesours pastours wayes pathes wetingly and vnyustyly or malycyously defoulen and with-holden councelen huyden or to with-hold or to avoyde procuren In the 26. Article in this manner Also all they ben accursed more lesse whiche wyttingly wylfully or malycyously and vnwysly for ony man hath had vttirly the Seruauntis of God that is to say their Persones Vicars Chapelyns Parrochyalys whatsoever condycyon that they ben or fame the thythes prouentys profytys oblacyons of custume and consuetude vsed lasse or more with-holden or done to bee with-holden or the sayed thythes or oblacyons chaungen or turnen in to other vse than it was prouyded in holy Chyrche law But of this see more Cap. 3. Sect. 2. In the Lawes of King Edgar it was decreed in the first place 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That Gods Church should have all her rights and that every man should pay his Tythes to the elder Minster or Mother-Church where hee heareth the Word cap. 2 of Edgars Lawes See also the 3. 4. Chapters In the Lawes of King Cnute cap. 8. thus it is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 eal 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈…〉 man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That a man must bee carefull rightly to pay Gods rights every yeare to wit the Plough-almes 15. nights after Easter and the Tythe of young Cattell by Whitsontide and the fruits of the Earth by Alhalgentide And if there bee any that will not pay his Tenth so as wee have said that is the tenth Acre according to the going of his plough then the Kings Reve and the Bishops and his that owes the land together with the Masse-priest of the Minster may goe and take away the tenth part whether he will or no and give it to the Minster whereunto it belongeth The ninth part hee may take to himselfe As for the eight parts let them be divided in two and let halfe goe to the Land-lord and halfe to the Bishop whether it bee one of the Kings men or a Thane Concerning the Plough-almes for which the Saxon saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lambard saith thus Ego me legisse memini in vetustissimo quodam legum Ethelreds Regis libello impositum tunc temporis in singula aratra denarium unum c. For first before the Conquest King Aethelstane made a Law that every man should pay his Tythes to God in manner as Jacob did who made a vow to God If God would bring him back againe to his Countrie hee would when hee returned home pay Tythes to God of all that God should give him the like did King Edgar and King Edmund commanding that those which wilfully refused to pay their Tythes should bee excommunicated William the Conquerour as Roger Hovenden reporteth in the 4. Hovenden part 2 cap De Decimis Ecclesiae yeare after his conquest having gotten some time of rest from war and setling of rebellious spirits who kicked at his government at home entred into a consideration of the well ordering of the Church Common-wealth by wholsome Lawes and therefore by the advise of his Councell he suÌ„moned all the great Prelates Potentates of this Land with twelve other sufficient men of every Shire experienced in the Lawes and customes of the Land that he might by them learne by what Lawes and customes the Land was governed before himself came to the Crown therof straitly charging commanding them upon his high displeasure they should make true report to him thereof without adding any thing therto or taking any thing therefro who beginning with the Lawes of holy 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 Authour De omni Annona decima garba est Deo reddita ideò reddenda See for this the lawes of Edward the Confessour num 8. 9. by whom this decree was first made and afterwards ratified by the Conquerour Si quis gregem Equarum habuerit pullum reddat decimum qui unam tantùm vel duas habuerit de singulis pullis singulos denarios praebeat Similiter qui plures Vaccas habuerit decimum vitulum qui unam vel duas de singulis vitulis singulos denarios qui caseum fecerit det decimum Deo etsi non fecerit lac decima die Similiter Agnum decimum Vellus decimum Butyrum decimum Porcellum decimum De Apibus verò similiter decimum commodi quinetiam de bosco de prato de aquis de molendinis parcis vivariis piscariis virgultis hortis negotiationibus omnibus rebus quas dederâ—t Dominus decima pars ei reddenda est qui novem partes simul cum decima largitur Et qui eam detinuerit per justitiam Episcopi Regis si necesse fuerit ad solutionem arguatur Haec enim S. Augustinus pradicavit docuit haec concessa sunt à Rege Baronibus populo Sed postea instinctu Diboli multi â—am detinuerunt Sacerdotes negligentes non curabant inire laborem ad perquirendas eas eò quòd sufficienter habebant vitae suae necessaria Multis enim locis medo sunt tres vel quatuor Ecclesâ—ae ubi tunc temporis una tantùm fuit sic caeperunt minui This Augustine to whom the Conquerour heere referreth himselfe was Augustine the Monke whom Gregorie the great about the yeare of our Lord God 569. sent heere
or competent Judge to have power by vertue of the said Act to heare decide and determine the same by definitive sentence according to the course proceeding of the Ecclesiasticall Law without reservation of any right to the Temporall Judge to give remedie by any suit or action for the recovery of the same saving in case where an inheritance or freehold in the premises is claimed and the person claiming is disseised deforced and put from the possession of the same in which cases onely the Statute alloweth the Temporall Judge 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. Ed. 6. c. 13 tending in like sort the state of the Clergie the benefit of his subjects and the practice of the Ecclesiasticall Courts of this Land made a Statute whereby he did not only ratifie confirme and allow such Statutes as his Father had formerly made but did further order that every of the Kings subjects from thenceforth should justly and truely without fraud or deceit set out and pay all manner of prediall tythes in their proper kinde as they did rise and happen in such manner as had beene paid within the fortie yeares next before the making of that act or of right or custome ought to have beene paid with certaine forfeitures and penalties as well against them which carried away any prediall Tythes before the tenth part thereof were justly divided from the same or otherwise agreed for with the owner thereof as also against those that did let or hinder the owner thereof his deputie or servant to view take or carrie away the same Enacting further that the partie so substracting or withdrawing any of the Tythes obventions profits commodities or other dueties aforesaid might or should be convented or sued in the Kings Ecclesiasticall Court by the party complainant to the intent the Kings Ecclesiasticall Judge might then and there determine the same according to the Kings Ecclesiasticall Lawes And that it should not be lawfull for the Parson Vicar or any other owner or farmer thereof contrary to the same act to convent or sue any with-holder of Tythes or any other like dueties before any other Judge then Ecclesiasticall excepting onely out of the said Statute things contrary or repugnant to or against the effect and meaning of the Statute of Westminster the second the fifth Chapter the Statutes of Articuli Cleri Circumspectè agatis Sylva Caedua the treaties De Regia Prohibitione matters against the Statute of Anno primo Edwardi primi Capite decimo and such other matters beside wherein the Kings Court of right ought to have Jurisdiction SECT 2. That the Statutes of the xxvii and xxxii of Henr. the 8. and the 2. of Edward the vi cap. 13. intended for the true payment of Tythe and the preservation of the triall thereof unto the Ecclesiasticall Courts are now turned to the hinderance of them both NOtwithstanding all which good provision of ancient Kings before the Conquest and moderne Kings since the Conquest for the assuring of the suit of Tythes to the Ecclesiasticall Courts onely and the continuall possession that the Ecclesiasticall Courts have had of the same deduced from so ancient time as hath beene before shewed and so often obteined in contradictorie judgement as the consultations thereupon granted doe testifie yet sundry men of this Land in sundry ages have by wrenches and subtill devises which are odious in Law and are by all godly and wise Judges by all possible meanes evermore to be restrained raised up matter out of the said Statutes themselves contrary to the true sence and meaning thereof to draw the triall of most of those matters away from the Ecclesiasticall L. legata inutiliter ff de adimendas legatis l. 2. ante finem C. de juretur propter calumniam dando Courts So that those Statutes which then were intended for the good of the Ecclesiasticall Courts are now become the utter ruine and overthrow of the same contrary to the rule of the Law and common reason that things which were purposed for one end should worke unto an other The first advantage they take against the Ecclesiasticall Courts out of these Statutes is gathered out of the twenty seventh and thirty second of Henry 8. where it is ordered that all the Kings Subjects shall pay their Tythes according 27. 32. H. 8. to the laudable uses and customes of their Parishes and places where such Tythes grow become due which albeit is undoubtedly meant of Ecclesiasticall customes triable at the Ecclesiasticall Law and so ever held till now of late that men thinke all too much that goeth beside their owne net yet there want not in these dayes which goe about with all might and maine to draw away these things unto the Temporall Courts as belonging to the Temporall Crowne and dignitie Wherein they doe wrong not onely to the Kings Ecclesiasticall Courts to spoile them of their ancient Jurisdiction but also doe injurie to the King himselfe as though he had but one proper Jurisdiction belonging to his Throne and seat of Majestie and that which were done by his Ecclesiasticall power were done against his Crowne and Dignitie whereas they are equally united in him and his Throne is no lesse stayed up by his Ecclesiasticall power than it is upholden by his Temporall authoritie And therefore a meere Paradoxe is that that they so constantly affirme That customes in payment of Tythes are matters of Temporall cognisance onely and not of Spirituall cognition For as there be secular customes such as are the customes of Mannors and Lordships where the Lord hath his Rent his heriot his reliefe and service and the tenant againe doth his homage and fealtie according to the nature of his Tenure which secular customes the forenamed Statute De Regia Prohibitione forbiddeth Ecclesiasticall Judges to deale in So also there are Ecclesiasticall customes such as is the payment of Tythes and other Ecclesiasticall duties to which common Lawyers are not to put their hands but to abstaine from them as dedicated to the use and triall of the spirituall Courts Otherwise would neither the ancient Authors of the Legatines and Provinciall constitutions of this Land the eldest of which are equall with the dayes of Henry the third and the youngest of them endeth in the reigne of Henry the fifth ever have Provincial c. quoniam de decimis changed so many severall customes of payment of Tythes as then were within the Land and in stead of them have brought in one uniforme payment of the same as is at this day used save where either the negligence of the Parsons or the covetousnesse of the Parishioners hath in some point changed the same Neither would these Statutes of Henry the eigth ever have ordered the people should pay their Tythes after the laudable customes and usages of the Parishes where they grew
of later age being lesse thankfull than they and loath to seeme beholding to Ecclesiasticall Courts for any matter of good order and disposition have arrogated the same wholly to the Temporall Courts as though the Ecclesiasticall Judge could not as well discerne what two or three honest men depose and say as concerning the limits or bounds of a Parish as twelve meane men of the countrie who are upon like depositions to give up their verdict But for the limits of Bishopricks I acknowledge that they are Temporall for that they were not primarily designed out by Ecclesiasticall men and their direction but were assigned to Provinces or Shires first described and distinguished by Princes but for Parishes neither reason nor antiquity concurres with them that they should be temporall or that they should be usurped 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 having a taste of these there may be like Judgement made of the rest SECT 5. That the clause of treble Dammages in the 13. chapter 2. Edward the sixt is to be sued in the Ecclesiasticall Courts onely OUt of the Statute of the 2. of Edward the sixt cap. 13. they raise many Prohibitions the first whereof in order of the Statute although the last in practise is the prohibition of treble dammages upon not dividing 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 meaning of this statute which would have those treble dammages in case of not justly dividing and setting out or not compounding for the Tythes before they be carried away be no lesse recoverable before an Ecclesiasticall Judge according to the Kings Ecclesiasticall Law than the forfeiture of double value by the letting and stopping of them to be carried 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 hatt it should stretch it self to the first branch of the provision as to the second and the second branch hangeth on the first by a conjunction copulative there is no hetorogeny or disparitie in the matter whereby it may not be as well 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 C. 6. tit 28. l. 1. omnia praecedentia maximè quando non resultaret intellectus contrarius juri as here it doth not for the intendment of of either branch of the Statute is to procure by their severall forfeitures a just and true payment of Tythes the recovery whereof as the precise words of the Statute in one member restraine unto the Ecclesiasticall Law so the Identitie of reason in the other member doth confirme it unto the same Law for where there is the like reason or equitie there ought to bee the like disposition or order of I. Illud ff ad l. Aquiliam Law Beside if the principall cause it selfe be triable in the Ecclesiasticall Court why should not those things which hang thereon bee tryed in the same Court for they are but as it were accessories to the principall and so not onely 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 absolving Further in that Court wherein the course of Justice already is begun the cause may with lesse labour and easier expences be ended being for the most part determinable by one sentence than that a new processe thereof should begin before another Judge who knoweth little or nothing of the principall matter and therefore cannot so easily decide the accessorie Lastly those which take this course first to surmise a forfeiture then to draw the originall suit whereupon the forfeiture grew into question bring in a proceeding far different from the common stile of all well ordered Courts in all Nations among whom the conusance of the cause and tryall thereof goeth before and the forfeiture or execution thereof followeth after But in this Hysteron proteron the execution is in the forward and the tryall is in the rereward In which doing they deale much like as Cacus the Gyant dealed with Hercules Oxen who to the intent that Hercules should not finde what way they were gon drew them backward by the tayle into his Cave but as that device served not Cacus but that Hercules had his Oxen againe so it is to be hoped the Reverend Judges of the Land will not long suffer this subtiltie to prevaile but as it came in like a Foxe and reigned as a Wolfe so in the end it shall dye and vanish away like a vaine device much like the destinie of Boniface the eigth for the reverend Judges are not onely to minister justice betweene man and man so that every man may have his owne and none be oppressed by an other but also they are to carrie an upright and indifferent hand betweene Jurisdiction Jurisdiction yea though themselves be parties to the matter in question so that one Jurisdiction eate not up an other as the Locusts in Egypt devoured up all the greene things of the land SECT 6. That the naming of Law or Statute in a Statute doth not make it to be of the Temporall cognisance if the matter thereof be Ecclesiasticall ANother rendevous they make of the words of this Proviso Law statute priviledge prescription or composition reall as though all which passeth under any of these tearms must belong to the triall of the Common Law and not to the cognisance of the Ecclesiasticall Law and that forsooth because these words and tearms are expressed in the Statute which is much like unto that as one would needes have a house to be Master Peacocks house because hee saw a Peacock sit upon 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 under the one Law or the other So that if the matter ordered in the Law or Statute be Temporall the cognisance shall bee Temporall if Spirituall then the case is determinable in the Ecclesiasticall Law for this Proviso is not prohibitorie as the last Proviso of this Satute is whereby Ecclesiasticall Judges are forbidden to
hold plea of any thing that is in the said Proviso conteined but it is rather directive and sheweth where the Ecclesiasticall Judge is to give way to immunities and to pronounce for them so that for any thing is conteined in this Proviso to the contrary the cognisance of these matters especially Priviledge Prescription and Composition still remaineth at the triall of the Ecclesiasticall Law as they did before this Proviso was made for Deprascript lib. 2. tit 26. De Privileg lib. 5. tit 33. Tythes and other Ecclesiasticall dueties as may appeare by the severall titles in the same Law hereon written And for the other words Law and Statute therein mentioned when as the King hath two Capacities of government in him the one Spirituall the other Temporall and his high Court of Parliament wherein Lawes are made doth stand as well of Spirituall men as Temporall men and so ought to stand in both houses if the ancient Booke De modo tenendi Parliamenti be true and authenticall which makes the upper House of three States the Kings Majestie the Lords Spirituall and the Lords Temporall and the lower House in like sort of three other the Knights the Procurators for the Clergie and the Burgesses and his Majestie hath within this Realme aswell Ecclesiasticall Lawyers as Temporall which are no lesse able to judge and determine of Ecclesiasticall matters then the Temporall Lawyers of temporall businesse It is not to be imagined but as his sacred Majestie will have those Lawes to be held Temporall and to have their constructions from Temporall Lawyers which are made and promulged upon Temporall rights and causes So also his Highnesse pleasure is and ever hath beene of all his predecessours Kings and Queenes of this Land that such Lawes and Statutes as are set out and published upon Ecclesiasticall things and matters shall be taken and accounted Ecclesiasticall and interpreted by Ecclesiasticall Lawyers although either of them have interchangeably each others voyce in them to make them a Law And that the King doth infuse life into either of the Lawes when as yet their substance is unperfect and they are as it were Embryons is in temporall matters by his temporall authoritie and in spirituall matters by his spirituall authoritie for to that end he hath his double dignitie in that place as also the Ecclesiasticall Prelates sustaine two persons in that place the one as they are Barons the other as they are Bishops So that even the orders of the House doe evince that there are two sorts of Lawes in that place unconfounded both in the head and the body although for communion sake and to adde more strength to each of them the generall allowance passeth over them all And as they rest unconfounded in the creation of them so ought they to be likewise in the execution of them as the Temporall Law sorts to the Temporall Lawyers so the Spirituall Lawes or Statutes should be allowed and allotted unto the Spirituall Lawyers And as the nomination of these words Law or Statute in this precedent Proviso makes not the Law or Statute Temporall but that it may remain wholly Ecclesiasticall by reason of the Spirituall matters it doth containe the power of him that quickneth it powreth life thereinto so much lesse can the inserting of these tearmes Priviledges Prescriptions or Composition reall intitle the Common Law to the right thereof or the Professours of the said Law to the interpretation thereof for that matters of these titles so farre as they concerne Tythes and other Ecclesiasticall dueties have beene evermore since there hath beene any Ecclesiasticall Law in this Land which hath beene neere as long as there hath beene any profession of Christianitie with us of Ecclesiasticall ordinance neither ever were of the Temporall cognisance untill now of late that they transubstantiate every thing into their owne profession as Midas turned or transubstantiated every thing that hee touched into gold CHAP. III. SECT 1. How it comes to passe that when tythes were never clogged with custome prescription or composition under the Law they are clogged with the same under the Gospel and the causes thereof BUt here it will not bee amisse to inquire since Tythes came in the beginning of the primitive Church within a little time after the destruction of Jerusalem and the subversion of the Jewes policie unto the Christian Church and common-wealth void of all these incumbrances as shall appeare after by the testimonie of sundrie of the ancient Fathers which were neere the Apostles time how it comes to passe since Tythes are no lesse the Lords portion now than they were then and in the Patriarches time before them that these greevances have come upon them more under the Gospel than ever they did under the Law for then never any Lay man durst stretch out his hand unto Malach. 3. them to diminish any part thereof but hee was charged with robberie by the Lords owne mouth and in punishment thereof the heavens were shut up for giving raine unto the earth and the Palmer-worme and Grashopper were sent to devour all the greene things upon the earth And for Ecclesiasticall men it is not read any where in the Scripture that ever they attempted to grant out any priviledge of Tythes to any person other than to whom they were disposed by the Law or to make any composition thereof betweene the Lay Jew and the Lords Levites every of the which have beene not onely attempted against the Church in Christianitie but executed with great greedinesse so farre worse hath beene the state of the Ministery under the Gospel than was the condition of the Priests and Levites under the Law SECT 2. That the causes are two fold First The violent intrusion of Lay men and secondly The over-much curiositie of Schoole men and first of the first cause and therein concerning Charles Martels Infeudations and the violent prescriptions ensuing thereupon THe beginning whereof although it be hard for mee to finde out because there is small memory thereof left in Stories yet as farre as I can by all probabilities conjecture this great alteration in Ecclesiasticall matters came by two occasions the one by the violence of the Laitie thrusting themselves into these Ecclesiasticall rights contrary to the first institution thereof for when they were first received into the Christian world they were received and yeelded to for the benefite of the Clergie onely as in former time under the Law they had beene for the use of the Priests and â—evites onely The other was the too too much curiositie of Schoolmen who being not content with the simple entertainment of Tythes into the Church as the ancient Fathers of the primitive Church received them would needes seek out how and in what right and in what quantitie this provision belongs unto the Church wherein they did by their overmuch subtilty rather confound the truth than make that appeare which they intended to doe By the first of these was
beginning thereof CHAP. IV. SECT 1. Of Priviledges and how they came in and that by reason of the frequence of Priviledges Statutes of Mortmaine came in NOw it followeth that I speak of Priviledges which are immunities granted unto private men beside the Law Of these some are very ancient such as true zeale toward the Church bred and the just admiration of the holy men of God for their sanctimonie of life their great knowledge in the word of God their great parience in persecution for Christ and his Gospel the vigilancie and care they had in their Office stirred up both in Prince and People So Constantine the great being ravished with the love of Religion and the good opinion hee had of the Ministers of his time erected Churches and endowed them with large possessions and granted them sundry immunities whereby they might more securely intend to the preaching of the word of God and the winning of soules to the Christian congregation wherein they laboured with all their might and power God still adding to the number of the Elect. Neither did hee this alone in his owne person but hee also gave leave to all other of his Subjects that would doe the like L. 1. c. de sacros Ecclesus §. Sâ— quis authent de Ecclesia whereupon the Church was so enriched within a short time that as Moses in the building of the Arke was faine to make a Proclamation that no man should bring in more towards the building thereof the people bringing in continually such great abundance of all things necessarie towards the furnishing thereof as that there was enough and much to spare So also Theodosius the thirteenth Emperour after Constantine although otherwise a most loving and favourable Prince towards the Church was faine to make a Law of Amortisation or Mortmaine to moderate the peoples bountie towards the Church as did also many wise Princes in other Nations upon like occasion and in imitation of this Act of Theodosius many yeares after and among the rest divers Princes of this Land did the like upon the dotage of the people towards the Religious Parsons and specially towards the foure Orders of Priers that were then newly sprung up in the world But yet this Act of Theodosius was Magâ—a Chartâ— cap 56. W. 2. c. 3. 1. an 13. Ed. 1 done with the great dislike of these blessed men Jerome and Ambrose who lived in those dayes for that Jerome thus complayneth to Nepotian of that Law I am ashamed to say it the Priests of Idols Stage-players Coach men and common Harlots are made capable of Inheritance and receive Legacies onely Ministers of the Gospel and Monkes are barred Concerning this see what Peckius saith in his Booke De Amortizatione Bonorum ca. 6. by Law thus to doe and that not by Persecuters but by Christian Princes neither doe I complaine of the Law but I am sorie wee have desorved to have such a Law made against us In like manner and upon the same occasion doth Ambrose deplore the state of the Clergie in his 31. Epistle Wee count it saith hee no injurie in that it is a losse wee are not grieved that all sorts of men are made capable of Wils none excepted how base prophane or lavish of his life or honestie soever hee be but I am sorie that the Clergie men onely of all sorts of people are barr'd the benefit of the Law that is common to all who notwithstanding onely pray for all and doe the common celebration of the Service for all So farre they †Notwithstanding the ill opinion which in these dayes is not without cause conceived of the ancient Albyes and Frteries yet it must not bee beleeved but that these Religious-houses in the old and true intent were purposed onely for pietie and for such a practise thereof which the soule might freely enjoy while it was so set at libertie from the inquietude and avocations of the over-active world Therefore some of the most grave and learned Fathers of the Church retired themselves to this divine and peacefull solitude and the profitable and profound writings which yet remaine sufficiently testifie how well the Monkes of old could spend their times What strict devotion and unblameable carriage the ancient Princes of this Land have expected from their holy men of this kinde may be understood by the Law made in the dayes of King Cnute Num. 6. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 men 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 aelc 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mynecena 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 on helle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 habbe he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is And wee will that every man of every degree doe earnestly follow that Right which to him belongeth especially Gods Ministers the Bishops Abbots Monkes Votaries Canons and Nunnes that they take a right course and live according to Rule that they call to Christ night and day much and oft and that they doe it earnestly for all Christen folke And wee command and teach all Gods Ministers especially Priests that they hearken to God and love Chastitie that they may deliver themselves from Gods ire and from the tormenting flames that burne in hell Full truely they wit that it is against the Right to medle with women for lusts sake And those that will abstaine from these things and cleannesse hold they shall have Gods mercie and in worldly worship they shall have equall Right with a Noble man It seemeth also by an Arabick Canon of the first Nicene Councell what great strictnesse and severitie of life was required of these holy Orders for the Canon saith that they might not carrie about them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a paire of knives as if they were quarelling fellowes going out to fight and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 kill c. That they might not hang a purse at their girdle c. And that they might not seale a letter with a golden or silver Seale c. And moreover that they might not walke in the Streets or Allyes but in a most grave and sober manner c. as it is set downe in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the 80. Canon of the fore-named Arabick Councell according to the Manuscript Copie The great estimation that was had of these holy Men enforced such an immoderate charitie in deuout minds that they obtained most especiall Priviledges Exemptions and no man thought any thing too good or too much to bestow upon a Monasterie But two great inconveniences followed upon the confluence of these large and ample endowments one was the luxuriant demeanour of these Religious Orders degenerating from their old sanctimonie This is noted and provided against by the Novell of Nicephorus about the yeare 963. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is But now perceiving among the Monasteries and Religious Houses a notable
disease for so I call their unsatiable desire I finde not which way I may provide a cure for this maladie or how to punish their excesse For what Fathers could perswade them or from whence could they take occasion so superfluously to abound or to say with holy David to bee so vainely madde Their care is every houre to purchase to themselves Lands without number sumptuous and stately Buildings troupes of Horses droves of Oxen and Camels and other Cattell innumerable and bending all the sollicitude of their mindes this way they make a monasticall life litle different from that of the world which is incumbred with varietie of anxious care For these and the like Reasons the Novell forbids to build any more Monasteries but this was afterwards repeald by the Junior Basil An other great inconvenience would have beene the impoverishing of secular States by Amortization of Lands which Princes foreseeing set a bound to these exorbitant Donations restraining the excesse of that Charitie by mature and timely Decrees In Spaine the Lawes of Mortmaine began under the Kings of Aragon in France nihil usitatius as one saith The like provision hath beene made here at home for which see the Statute De Religiosis in the Great Charter which also hath been confirmed by the succeeding Princes of this Land Yet in what cases Lands may be divised in Mortmaine See the Writ Ad quod Damnum in the Natura Brevium Concerning the reason of the name Polydore Virgil speaking of the Confirmation of the former Statute by Ed. the first saith thus Et Legem hanc ad Manum 〈…〉 vocârunt quòd res semel data Collegus Sacerdotum non utique rursus venderentur velut mortuae hoc est usui aliorum mortalium in perpetuam adempta essent That which the Author saith concerning this is the reason of Peckius in his Booke De Amortizatione bonorum Cap. 2. But the notation of the word is otherwise observed out of the Statute by a great Lawyer Lands saith he were said to come to Dead Hands to the Lords for that by Alienation in Mortmaine they lost wholly their Escheats and in effect their Knight service for the defence of the Realme Wards Marriages Reliefes and the like and therefore was called a Dead Hand for that a dead hand yeeldeth no service It is the obsetvation of Sir Edward Cooke upon Judge Littleton's Tenures under the Title Fee-simple upon the words Car si homme purchase c. What everuse there might be of these Lawes of Mortmaine in time past certaine it is the present needeth them not for in these dayes few men are so rash handed as to give too much to the Church And that which was heretofore said of those things that were given that they were in a Dead Hand may now more justly be said of those that are taken away And yet whosoever lookes into this constitution whereby it was forbidden that any man should passe any Lands or other unmoveable possession unto the Church without the Princes leave for that thereby the things that are so passed come as it were into a dead hand which holdeth surely fast that which it once apprehendeth neither easily parteth with it so that it cannot without much difficulty be reduced and brought again to the commerce and common use of men shall finde it was rather for the benefit of the Common-wealth than for the dislike of the Church that it was so ordered For if that course had beene holden on still the greatest part of the livelihood of the Common-wealth would in short time have come unto the Church and so Lay-men should not have beene able to have borne the publicke burthens of the Common-wealth which it concernes Secular Princes to be carefull of and to foresee that by over-much bountie towards the Church they impoverish not their owne state and lose the right of Escheats Primer seisin and other Priviledges of the Crown in cases of forfeiture and specially make bare their Lay-subjects upon whom a great service of the Common-wealth doth lye And yet otherwise the beneficiallest state of this Realme unto the Prince is the Clergie as from whom the King hath a continuall revenue in Tenths and is deepest in Subsidie and not the least in all other extraordinarie charges according to the proportion of their place And therefore as the King is to maintaine the one so he is also to cherish the other and not to suffer their state in any sort to be diminished for that all other states are made for the service of the Church and the Church againe for the benefite of them But this was none of those Priviledges that I spake of for these are more ancient than they and granted out upon better devotion than the other but after this the zeale of Religion being almost extinguished in the Christian World partly by the great uproares and tumults that were in every Countrie by the breaking in of one barbarous Nation or other upon them who pulled downe Churches faster than ever they were built and made havock both of Priest and people that professed the name of Christ partly by the heresies that rose every-where in the Church in those dayes which distracted mens mindes and made them waver in the constancie of their Religion it was revived againe upon this Occasion SECT 2. Of the beginning of Cloystered Monkes in the West Church of Christendome and that the Author thereof was one Benedict a Roman about the yeare 606. ONe Benedict vvho otherwise had beene a man of action in the Common-wealth that Benedict which was as it were the Father of all those that professed a Regular life within the West Hospintan de origine Monachatâ—s part of Christendome for before his time the Monkes of the West Church served God freely abroad without being shut up in a Cloyster he I say finding himselfe wearied with the tumults broyles which happened under the government of Justinian and some yeares after by the incursion of those barbarous Nations before named into Italy retired himselfe into a desert and solitary place intending there to give himselfe wholly to the service of God where when he had a while remained he grew so famous by his Christian exercises of fasting and prayer and the good and wholesome exhortations that he made to those who resorted unto him that within a very little time after there was great confluence of people unto him not onely from divers parts of Italy but even from sundry other parts of the World so that within a short time they grew into Fraternitie underneath him to whom he gave rules to live by to the imitation of that which Saint Basil did in the East Church to which his Disciples submitted themselves with all alacritie leading a life farre different from the common sort of men denying unto themselves all those ordinary delights that other men doe commonly take out of meat drinke apparell marriage Temporall preferment and such other things which worldly
imbrace it and kisse it as a golden birth or as if that Juno her selfe had beene present at the Nativitie thereof And the devise is this A Bishop being owner of a Manor yet not divided into Tenancies nor having any Parsonage erected upon it ordaineth the one and divideth out the other here the Bishop being seised in the whole Manor before the said division because hee is a Clergie man is supposed to be in possession as well of the Tythes as of the Manor it selfe and therefore after creating a Parsonage and dividing out his Tenancies may retaine and keepe to himselfe and his said Tenants so much of the said Manor discharged of Tythes as him listeth and assigne over 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 hee hath no more right to the Tythe thereof than a meere Lay Patron hath who for his zeale to the Church to incourage others to be like affected to Gods Religion as himselfe is may have some small pension assigned him and his for ever by the Bishop out of the same benefice in acknowledgement of the erecting founding or ondowing thereof but for any portion of Tythes to him or his hee could never retaine any nor can to this day neither yet can the Bishop himselfe unlesse perhaps hee will be like to Ananias and Saphira which held part of the price of their ground from the Lord and were worthily punished for the Actorun 〈…〉 same And as they cannot detaine it themselves being spirituall men so much lesse can they passe it over to any Lay man for that Lay people neither by Gods Law neither by Canons and Decrees of the Church were ever capable of Ca quamvis de decimis thâ— Abnum 5. them yea it was so farre off that ever any Bishops durst infeoffe any Lay man in Tythe that whosoever did it was to be deposed excommunicated untill such time as he restored the same to the Church againe And to say the truth Ca tua nobis de decimis Tythes were never at any time in Bishops as in Fee but in very few cases as where 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 unto them in such sort as they do now belong unto the Incumbents thereof Or if the Tythe were not within any Parish for then in like sort it did belong unto the Bishop of the Diocesse in whose Territory it was albeit now within this Realme it belongs unto the King or where the Parishes were undistinguished for then were they the Bishops not to convert to his owne use but to divide among the Ministers and Clerkes which laboured in the Diocesse under him in Preaching Teaching Ministring of the Sacraments and executing of other Ecclesiasticall functions every 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 repairing of the Parish Church where they grew and not to conferre or bestow the same as him thought best which notwithstanding now also is growne out of use and nothing left unto 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 be found that ever any Bishop had to doe with Tythes much lesse to alyen dispose and transferre the same as him listed and to whom him listed SECT 2. That Bishops endowments in the beginning stood not in Tythes but in finable Lands FOr it is very certaine Bishops endowments themselves in the beginning of the Primitive Church stood not in Tythes but in good Temporall and finable Lands which gracious Princes and other good benefactors of former Ages bestowed upon them as it doth appeare out of the Câ—de sacrosanct Eccl. de Epist Cler 〈…〉 titul first booke of the Code where sundrie Lawes of Constantine the great and other gracious Emperours even to the time of Justinian himselfe are recorded both for the conferring of Lands upon the Church and those such as should neither be barren neither charged with Statute or other debts of the Exchequer as also for the conserving and safe keeping of such Lands as vvere in such sort conferred Authent multo magis C. de sacro sanct Eccles and bestowed upon them and it is manifest also out of our owne stories both in the Britans time during whose Raigne there are reported to have beene fifteene Iocelin of Furnis in his booke of British Bishops Sâ—ow fol 37. Archbishops in the See of London well endowed with possessions and if they were Archbishops then must it necessarily also follow there were Bishops for that these are respective one to the other The like is vvritten of the Saxons Raigne under whom the See of Canterburie Hen. Huntington lib. 3. the See of London the See of Rochester and the See of Yorke for these foure vvere first set up againe after the Saxons first received the faith at the Preaching of Augustine Melitus and Justus Paulinus are namely reported to have beene inriched vvith large Dominions Charta regis Ethelberts charta Wâ—ll primâ— Stow fol â—7 and possessions given to every of them for their maintenance And vvhat course hath beene held vvith Bishoprickes erected since the Conquest the ruinated state of them and others doe shew amongst whose ancient livelihood is not to be found any indowment by Tythes but such as of late have come unto their hands and that for the most part by change of their good finable Lands for impropriate parsonages And therefore much to blame are some of our time who when as their predecessours in former ages never admitted of any impropriate parsonage into their possessions but onely in such cases as have beene before remembred for the name and place of a Bishop will be content to make Glaucus Homer Iliad change with Diomede that is give their golden Armour for the others brazen Armour or doe like as Roboam Regum 1. c. 14. did who in stead of golden shields that his father Salomon did hang up 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 never so instantly desire it SECT 3. That the turning of Bishops indowments into tenthes or Tythes for impropriate Parsonages is unsutable to the first institution and very dangerous ANd therefore an unsutable devise was that and contrary to the course of former Ages which was procured in the first yeare of the