BEFORE I shew how necessarie it is for his Maiestie and the Realme, to maintaine the Ciuile and Ecclesi­asticall Law, as they are now practi­sed among vs in this Realme, I will set down as it were in a briefe, what the Ciuile and the Ecclesiasticall Lawes are: then will I shew how farre forth they are here in vse and practise among vs: third­ly wherein we are abridged and put beside the vse and pos­session thereof, by the Common Lawe, euen contrarie to the old practise thereof, and the true sence and meaning of the Lawes of this Realme and the Statutes in this behalfe pro­uided: and lastly, wherein we might be relieued and admit­ted to the practise of many things in the Ciuile Law with­out preiudice to the Common Lawe; and so both the Lawes might know their owne grounds and proper subiects, and not one to be iumbled with the other as it is at this day, to the great vexation of the Subiect. But before I speake of the Ciuile Law in particuler, I will define what Right or Law is in genetall: Law therefore is (as Vlpian saith, L. 10. in fin ff. de Iusticia & Iure) the knowledge of Ciuile, and humane things, the vnderstanding of those things which are iust vniust. This Law is primarily diuided into the lawe publicke and the lawe priuate. The publicke, is [Page 2] that which appertaineth to the generall state of the common wealth, for I meane the law publick, not in respect of the forme, that they were publickly made, as we make lawes in our Parliaments, for so all the Ciuile Law is publicke, as made by publicke authoritie; but in respect of the obiect or end therof, for that they concerne the Church, the Clergie, the Magistrate, and other like publicke functions, none of which leuell at the rule of equitie, or equalitie betwéene man and man, as priuat lawes doe, but ayme at that which is most fit in generall for the common State.

The priuat Law, or the priuat mens Law, is that which concernes euery singular mans state, which, for that it is oc­cupied in giuing euery man his owne, it must of necessitie be proportionable to the rule of Equalitie and Iustice.

Priuate Law, is of thrée sorts, the law of Nature, the law of Nations, and the law Ciuile.

The law of Nature, is that which Nature hath taught euery liuing creature, as the care and defence of euery crea­tures life, desire of libertie, the coniunction of male and fe­male for procreation sake.

The law of Nations, is that which common reason hath established among men, and is obserued alike in al Nations, as distinctions of mens rights, building of houses, erecting of Cities, societie of life, iudgements of controuersies, war, peace, captiuitie, cōtracts, obligations, succession, & such like.

The law Ciuile, being largely taken, is the law that euery particuler Nation frameth to it selfe, as the Athenians laws, and the lawes of Lacedemon, in which sence also, the law of England may be called the Ciuile law, for that it is the pro­per and priuat law of this Nation: but in more strict sort, the Ciuile law is the law, which the old Romanes vsed, and is for the great wisdom & equitie therof at this day, as it were, the common law of all well gouerned Nations, a very few only excepted.

And certainly, albeit sundry other Nations by the light of Nature, haue many Rules & Maxims of the Ciuile law: yet, if all the constitutions, customs, & lawes, of all other people [Page 3] and countries were put together (I except none, saue y^e laws of the Hebrews, which came immediatly from God) they are not comparable to the law of the Romans, neither in wisdom nor equitie, neither in grauitie nor in sufficiencie. Wheru­pon it is, that most of other Nations, (sauing our owne) al­though they receiue not the Ciuile law wholy for their law, yet they so much admire the equitie thereof, that they inter­pret their owne lawes therby. Peckins de regul. iuris reg. Quae à iure cōi regul. 28.

The whole Ciuile law it selfe, is reduced or brought into 4. Tomes, whereof the first containeth the Digest or Pan­dects, taken out of 27. old reuerent lawyers works, wherof sundry were before the comming of Christ, other florished in the Emperors daies, euē vnto y^e time of Maximinus, as it ap­peareth by Spartianus & Lampridius, in y^e life of the said Em­peror: which said Tome is diuided into 50. bookes, of which, euery one cōtaineth sundry titles of great wisdom & varietie.

To this Tome, I adde the Institutions, which are a briefe of all the former bookes, composed of purpose by the Emperor in the behalf of yong learners, that therby hauing the whole Digest drawne into a Compendium of 4. books only, they might with more alacrity, go forward in y^e study of the lawe hauing, as it were, y^e first Elemēts of the whole profession in this little Treatise; wheras otherwise without y^e help herof, their weak minds might be clogged with the multitud & va­rietie therof, and so either altogether leaue their studies, or with more labor & diffidence (which oftentimes discourageth young mens minds in a long matter) come to the end therof, to which, by the direction of this briefe, they might sooner at­taine vnto, and that without much trauell or distrust.

The Digests haue their name, of that they are put into a comely order by the Author, ranging euery booke & title into his proper place, such as either the course of Nature affords them, or are fittest for the practise of the profession.

The same book again, is called Pandects, of the gréek words [...], for that it cōpriseth in it self, al whatsoeuer Iusti­nian drew out of 150000. verses of the old bookes of the law.

[Page 4] The Institutes are so called because they are as it were masters and instructors to the ignorant, and shewe an easie way to the obteining of the knowledge of the Law.

The matters wherein the whole law is occupied, are ei­ther the persons in the common wealth, or the things be­longing or not belonging to them, or the actions whereby men doe claime in iudgements such things as are due vnto them by law.

Vpon a more particuler, diuision the whole Digest is di­uided into seauen parts: wherof the first part standing vpon fower bookes, containeth the principles, and as it were, the first elements of the Lawe, as what Iustice and right is, from whence the Ciuile law hath his beginning, what per­sons be the obiect of the Ciuile lawe, what Magistrates the common wealth of the Romanes had, by whome either the lawes were made or executed: the diuers kindes of Iu­risdictions which those magistrates vsed; méere, mixt, or simple, according to their place: the corrections which the lawe vsed against such as disobey the Iudge, either in not appearing, or not performing that which is inioyned them: what prouision it made against such as by violence rescued men out of the Iudges hands: what Holidaies there were, wherein the Courts were not held: what order the Lawe tooke against the plaintife, that hauing cited the defendant had no Libell readie to put into the Court, vnlesse happily otherwise the parties vpon priuate agréement compounded the matter betwéene them: who were to be admitted aduo­cates, and what causes bard them from that office: what is the office of a Procurator, Solicitor, or Sindict, or Factor; and vnder what cautions they were admitted, if they had no Proxie, or Mandat, or the partie principal did not in pre­sence authorise them: how they were punished who vpon reward tooke vpon them to vexe men vniustly in the Law, in manner as common Barators doe: what persons hauing lost opportunitie to alleage any thing for themselues benefi­ciall in Law, may be restored thereto againe, as Minors and such other as by feare or craft of the aduersarie haue bin [Page 5] driuen away from their lawful defence: how persons of com­mon trust, as Marriners, Inholders, and such like, are bound by Lawe to restore such things as they haue taken in charge to kéepe.

The second parte, being distributed into viij. bookes, yéel­deth matter of Iudgement, as who may be Iudge and who not: where and before what Iudge euery one is to be con­uented: how many kindes of Iudgement there are, Ciuile, Criminall, and mixt of both: by what actions things that are ours by right of inheritance may be chalenged, whether they be corporall or incorporall, what action the Lawe affordes, if any man conceale that is ours, that we may come to the sight thereof: what action lyeth against him who by euill per­suasions or leude inticement hath corrupted another mans seruant, or hauing run away by his ill counsell, hath con­cealed him from his master: what prouision the Lawe hath against Dice-play and such as kéepe Dicing houses: how he is to be punished which being put in trust to measure any mans ground, makes a false report of the measure thereof: that no man hinder a corse of a dead bodie to be carried to buriall, or to be buried in such places as he and his prede­cessors haue right vnto, or to build a Tombe to that purpose, and beautifie the same.

The third part imbracing xij. bookes, concerneth personall actions, which rise not of cause of right or possession, but of couenant and obligation; as things credited or lent in a cer­taine summe, the meanes how to recouer the same if it be de­nied, that is by oath of the partie that denieth it, vnlesse hee may bee conuicted either by witnesse or instrument that hee hath forsworne himselfe: how many kinds of oaths there are, voluntarie out of Iudgement, necessarie exacted by the Iudge in doubtfull cases, where otherwise there wanteth proofe to manifest the trueth: Iudiciall, such as one partie of­fereth to another in Iudgemēt, and cannot be refused with­out iust cause: and lastly, that which the Iudge offereth to the plaintife, as concerning the value of the thing which is in strife, or the charges that he hath bin at in recouering of [Page 6] the same: what exceptions there lyes against Obligations, as that which for cause was giuen, and cause did not follow: that the cause was dishonest, for which that is challen­ged that was giuen: that the summe was not due which was paid; and therefore not to be exacted, but to be repaid: actions for things lent for a certaine time and to a certaine vse: actions for things pawned: actions that either passen­gers haue against Mariners for the goods or ware that they haue brought into the ship, or Mariners haue against Pas­sengers for their fraught: actions of eiectment wherein the passengers and Mariners are bound each to other for con­tribution of the losses of such things that haue béene cast into the sea in the time of a storme or tempest, according to the qualitie and quantitie of the goods they haue in the ship: actions whereby masters are bound to answere for their ser­uants contracts, and fathers for their childrens, in such things, or negotiation as they haue put them in trust with­all, sauing where the child boroweth money without his fathers priuitie for riot, and for such purpose as his father hath no vse thereof: Remedies for women, when by weak­nesse of their sexes, and lack of councell, they haue inwrapt themselues in suertiship for other men: action of compen­sation, where a debt is demaunded, for which an equiua­lent portion hath béene receiued in lieu or satisfaction there­of: actions of mandate or commaundement, wherein one hath done some worke or laid out some money vpon an other mans mandate or word, and yet when hée requireth al­lowance thereof, it is denied him: actions of societie or fellowship, wherein either the societie is required to bee maintained, and the money put in common banck to be diuided: actions of bargaine and sale, either pure or condi­tionall, the bargaine being once made, the losse and gaine that after happeneth is the buyers, vnlesse the seller retain some further right in the thing sold vnto himselfe: actions of letting or setting either of the vse of a person, or the vse of a thing vpon a certaine hyer: actions of change and such like.

[Page 7] The fourth part being digested into eight bookes, mini­streth actions for such things as are accessarie to contracts, such as pawnes and pledges are, which are giuen for the better securitie of the contract: actions for restitution wher­in a man hath béene deceiued in a bargaine more then the halfe value of the thing sold, or wherein the seller hath con­cealed some fault in the thing sold, which he ought by Law to haue reuealed, or promised some qualitie in the same, which was not in it, or where the thing sold, hath béene euic­ted, by an other, out of the hands of the buyer, himselfe v­sing all iust defence of Law for himselfe: actions for interest and vsurie, and how many kinds thereof there bée that men vse by land, lucratorie, compensatorie, and punitorie; whereof the first is altogether vnlawfull, the other two al­lowed where either iust gain ceaseth, or iust losse followeth, vpon that occasion, that which is lent is not paide according to the day of couenant. Sea vsurie, otherwise called nau­tick vsurie, is greater then land vsurie, and yet allowed by Law, for that the seafaring man takes vpon him­selfe the daunger of the transporting thereof, and securing the same at such place as it is appointed to be deliuered. In deciding of matters of controuersie, the Law pro­céeds sometimes by witnesses, sometimes by instru­ments, sometimes by presumptions, where knowledge or ignorance of fact or Law is presumed. Spousals are mutuall promises of a future marriage: marriage is a law­full coopling together of man and woman, the companie and societie of the whole life, the Communion of all Di­uine and humane rites and things, and of one and the same house, wrought by the consent and mutuall good will of the one towards the other: in espousals and mar­riages is to bée considered, who is to bee ioyned toge­ther, at what yeares, and by whose consent: there doth wayte and attend vpon Marriages, Ioyntures, Dowries, and such like, and sometimes Diuorse, which is so called of the diuersitie of the mindes of those that are married; because such as are diuorsed goe one a [Page 8] diuerse way from the other. The causes whereupon Diuorces growe, are Adultery, deadly hatred one to­ward another, intollerable crueltie, néerenesse of kindred and affinitie in degrées forbidden, impotencie on the one side or the other: actions of Dowrie after diuorce or sepera­tion; actions against a mans wife imbeaselling away his goodes; actions against a husband, disclayming his owne childe; and his wife being with child, if he make doubt ther­of, meanes how and where she shall be kept vntill her deli­uery, so that no false birth shall be put in place of the true childe; or that she abuse not her husband or the next heire with a false shewe of that which is not. Tutelage and go­uernment of children vnderage, which is either testamen­tarie, or due to the next of kinne, or datiue, all which are ei­ther to be confirmed or disposed of by the Magistrate. Ad­ministrations of Tutors and Curators, and how farre they are indangered by their office, and wherein they are to in­terpose their authoritie and consent, and for what actes the pupils or minors may be sued, done by the tutors or cura­tors; how any may be argued to be a suspected tutor or cura­tor; and how and by whom he may be remooued, if there ap­peare iust cause of suspition against him. A Tutor is chiefly set ouer the person of the childe, secondly ouer his goods: but the Curator or Gardian is chiefly set ouer the goods, and then ouer the person of the child: children (their father being dead) by y^e order of the Iudge, are to be brought vp with their mother, vnlesse she hath fled vnto a second marriage, which if she haue done, then is he to be brought vp with some of his néerest kinne, such as is knowne to be an honest man, and will haue a care of his good education; with whom the Iudge is to allowe him such maintenance, as all his stock be not spent therein, but euermore something be left against he come to full age. When the time of Tute­lage or curatorship is ended, they are to render accompt vn­to the Iudge, what they haue receiued, and how they haue expended the same, and what residue is left, and according as their proofes are, either by oath, or otherwise, so the Iudge [Page 9] either alloweth, or disalloweth the same. If the Tutors or Curators proue bankrupt, or vnable to satisfie the Pupill or Minor, then lieth an action against their suerties for the sa­tisfaction of the same; and if both of them faile, then lieth it against the Iudge, or Magistrate, if either he haue not re­ceiued any caution at all of the Tutors or Curators, or hath receiued an vnsufficient caution, or vnsufficient suerties, knowing them to be vnsufficient; otherwise he is not to se­cure fortune and future cases of the child: the Tutors or cu­rators are to sell nothing of those things that are the chil­drens, sauing such things which by kéeping cannot be kept, vnlesse they haue the order or decrée of the Iudge thereunto, which the Iudge is not to decrée, vnlesse the child be so far in debt that it cannot be satisfied without selling some part of the other goods, or there be some other like iust and necessarie cause like vnto this which may not be auoided. As Minors haue curators and gouernors, so also mad persons and pro­digall persons are appointed to haue gouernors by law, for that they can no more gouerne their owne state then the o­thers can. Prodigall persons are they that know no time nor end of spending, but riot or lauish out their goods with­out all discretion.

Vnder the fift Section, which compriseth in it, nine bookes, are conteyned last Wils and Testaments, and who they be that can make the same: and how many kinds thereof there be, solemne or militarie, and they eyther put in writing, or else Nuncupatiue: what is an vniust, or void Will: what is to be thought of those things, which are found eyther to be blotted out, or interlyned in a Will: how Heires or Execu­tors are to be instituted, or substituted in wills, and vnder what conditions they may be eyther instituted, or substitu­ted in the same: What time an heire hath to deliberat after the Testators death, before he proue the Will: what is a military testament, & what priuiledges it hath: how the inhe­ritance may be eyther got or lost: how Testaments are to be opened, published, and writ out: what mens Testaments are not to be opened, and published: Of the punishment of [Page 10] such, which a will being extant, séeke by administration, or some other like meanes to possesse the goods: and of those which either forbid, or compell any man to make a Will: Of the power or right of Codicils: of Legacies, and bequests, as what things may be bequeathed, and what not, to whom any thing may be bequeathed, and of the signification of the words, and things which doe appertaine vnto Legacies: of yéerely and monethly legacies, what time they be due, in the beginning of the yeere, or in the end: which of them be pure, and which conditionall: Of the vse, profit, and benefit of any thing bequeathed: of dwelling, and workes of seruants bequeathed: of Dowry bequeathed, and what profit the Le­gatorie hath thereby: Of choise or election bequeathed: Of wheat, wine, & oyle bequeathed, and what is contained vn­der euery of them: Of ground furnished bequeathed, and the instruments thereto belonging, and what is to be vnder­stood by that bequest: Of store bequeathed, in Latin called Penus; what is comprised vnder that word: of houshold stuffe bequeathed: of education & bringing vp bequeathed: of gold, siluer, womens attire, ornaments, and such like bequeathed, and what is to be vnderstood by euery of them: how Legacies may be taken awaie: Of thinges that are doubtfull in a Will, and how they are to be vnderstood: Of those things that are left for punishment sake in a will, whe­ther they be auaylable, or otherwise: Of those things which being bequeathed in a Will, are counted notwithstanding as not bequeathed: Of those things that are taken away from the Legatories in the will, as vnworthy of them: Of conditions, demonstrations, & causes; what force they haue, and how they prouaile in a Will. Of the Law Folcidia, what it is, and how men thereby are restrained, for bequeathing any more, then the thrée parts of their goods, so that a fourth part thereof should still remainewith the heire; & if any man had receiued in Legacie more then he might by the law Fol­cidia, that he should put in band to restore that, if any vn­knowen debt after should appeare, so the same were true debt: at what day a Legacie becomes due; that is streight [Page 11] from the death of the Testator, vnlesse it be left to be paied vpon a certaine or vncertain day, or vnder a condition; and that the heire enter into band to pay the legacie when the day comes, or the condition happen, and if he refuse to do it, then the legatorie to be put in possession therof vntill the day or condition happen.

The sixt part spreading it selfe ouer seauen Bookes, hand­leth matters of possession of goods, or administration there­of, not growing out of the Ciuill Law, which only makes heires, and giueth right of succession, but out of the Pretori­an Law, or Law of conscience, which in equitie calleth sun­dry to the succession of other mens goods by administration, where there is no Will, and in some cases where there is a Will, as where the will is concealed, or the Erecutor re­nounceth the will, but if the will once appeare, then the ad­ministration forthwith ceaseth. In cases where Admini­strations are to be graunted, the children of the deceased haue libertie to take it, within a yeare after the death of the deceased, and if they be further off of kind, then they haue onely a hundred dayes to take it in, vnlesse those which are to take it are Infants, mad, deafe, dumbe, or blind, in which cases there is a longer time assigned. The Pretor graunted administration not only according to the tables of the Testament; but many times euen against the tables of the Testament: as where a childe is not disinherited in his Fathers will by plaine termes, but passed ouer with silence onely, as not remembred; or that the childe was not borne at the time of his death, & so not knowne whether any such childe weare liuing, or to be hoped for or not: In which case if it doe after appeare, the Mother is put in possession of that which is the childes part. If there appeare no Will, the Ad­ministration is committed in this order, First, the children of the deceased are admitted: Secondly, those that are next of kind in the Male line: Thirdly, those that are next of kind in the Female line, (which difference notwithstanding betweene Male & Female) at this day is taken away, and they that are next of kind are equally admitted of their sex; [Page 12] Lastly comes those which haue right thereto, either in that they are man or wife. The Law sundry times, where a thing is done, or intended to be done, against an other mans right, and there is no prouision for it in Law, yéeldeth the partie grieued an Interdict or Iniunction to hinder that which was intended to his preiudice, As where one buyl­deth an house contrarie to the vsuall and receiued forme of buylding, to the iniurie of his neyghbour, there lyeth an Iniunction de noui operis nunciatione, which being once serued, the offender is eyther to desist from his worke, or to put in suerties, he shall pull it downe agayne, if he doe not within a verie short time auow the lawfulnes thereof. Againe, there lyeth an Iniunction where hurt is not yet done, but feared to be done; as where a house is ruinous, or the eues, or any outcast worke thereof hangeth dange­rously ouer the way, so that it is doubted it will fall and hurt some that passe by, the owner or Lord thereof is to put in suertie to the Magistrate, that if any be hurt, or miscarrie thereby he shall answere for it. If any cause the water of the ryuer, or raine water to run an other course than before time it was wont to doe, and that the neighbours are like to be preiudiced thereby, the Law yeeldeth an Iniunction, eyther to staie the worke that is intended, or to secure the neyghbours for the hurt that is like to follow thereupon. If Customers, Collectors, or Tolle-gatherers exact more subsidie, or other like publike dueries then by Law they ought, or distraine any mans goods, vpon pretense thereof, or staie in their hand such dueties as they haue receyued, whereby the partie that hath paied it falleth into any forfey­ture, or that they repaire not the publike high wayes, in which respect subsidies, tributes, and other such like dueties are giuen to Princes, they are to be punished in the double value of that which they haue receiued, and otherwise to be fined for their ill dealing in that behalfe. In giftes which are purely giuen, or vnder a day, or condition, and specially in those that are giuen in contemplation of death, which are compared to Legacies themselues, a right passeth without [Page 13] deliuerance, and giueth sufficient matter of challenge vnto him to whom they are giuen. The meanes or waies where­by the Lordship or right of any thing is gotten, be it natu­rall, as by the first occupying the same, by finding the same, by bringing it into a forme or fashion, by gayning by the sea or ryuer, by deliuerie, or such like: or be it by ciuill meanes, as by getting the possession of any thing by good title, and good faith, so long as it will make a iust vsurpation, or pre­scription, by holding it as heire, by holding it by a gift, by taking it vp as a thing forsaken, by holding it by legacie, dowrie, or inheritance, by comming to it by sentence defi­nitiue, or interlocutory, by confession of the aduersarie, by cession of the partie, by aucthoritie of the Iudge, and the same haue béen fraudulently alienated by the debtors, there lieth an Iniunction to put the partie iniured into possession. All Iniunctions for the most part are prohibitorie, and serue either to get, or to kéepe, or to recouer possession, and are cal­led commonly by the first name of the writ, as where one is denyed the possession of inheritance belonging to him, an Iniunction is graunted him to put him in possession, called Quorum bonorum, or if it be for a legacie, Quod legatorum, and if it be in generall cases, Ne vis fiat ei qui in possessio­nem missus est: That he that hath gotten the custodie of the Will exhibite it: That no priuat buylding, or such like, be set vp in a holie and sanctified place, and if it be that it be puld downe againe: That no Nusance be done in publike places, or high wayes, other then such as by the Law are al­lowable: That publike high wayes be repaired: That no­thing be done in any Riuer, or the banckes thereof, where­by Ships or Barkes may not passe thereon: That nothing be done in any common streame, whereby the water should be forced to run otherwise this yeare, then it did the last Sommer afore: That it may be lawfull for euery man to sayle or rowe in any publike streame: That the bankes of the ryuer bée repayred. Of force, and force armed, where two are in possession of one thing, and neyther of them came by the same by force, or by secret slight, or by [Page 14] sufferance of an other, there lyeth an Iniunction for con­tinuance of either of their possession, called vti possidetis: That a man may vse such priuat way, as he hath vsed the yeare past, and repayre the same without interruption of an other: That no man turne away the daily running water, or the water which fals in Sommer from an other mans house, or ground to his hinderance: That water courses in ryuers, and other like places be maintained: That such as haue right to draw water out of any spring, or well, be not forbid the vse thereof, and that euery one haue frée libertie to cleanse, purge, and to repaire the same, if there be any de­cay in it: That no man be forbid to scoure, purge, or clense his priuies, sincks, or vaults: That whatsoeuer is done by open force, or secret subtilty, be restored into place it was, before such force or subtilty was done, vnlesse the partie grieued release the same: That he that holdes any thing at an other mans will, restore the same vpon competent war­ning, or knowledge giuen him thereof: That a man may lop or cut the boughes of an other mans trée annoying his ground, if after warning giuen thereof, the owner thereof do not reforme it. That it be lawful for a man to gather such fruits of his, as fall from his owne trée into an other mans ground, without any trespas to the owner of the ground, so that he gather the same within thrée dayes after they are so falne; for otherwise the law presumes he makes no recko­ning of them, and fruites lying vpon the ground doe easily putrifie: That a man may challenge his children out of an other mans hand that holdeth them from him: That a Te­nant after his Lease is expyred may remoue & quietly carry away such things from the farme, as he brought thither, so that the rent be paied, and those things which he brought thither were not bound for the paiment thereof. Actions are taken away, and possessions maintayned by exceptions, pre­scriptions, & preiudices, which themselues are many times in stéed of actions, as is the exception de re indicata, which is an exception that determineth the cause in controuersie. Of Exceptions, some are perpetuall and peremptory, some are [Page 15] temporal and dilatory; Perpetuall and peremptory are they which euermore haue place & can nerer be auoyded; Tem­porall and dilatory are they which are not euermore in place, but may be auoided: Exceptions are alleaged either because that is done which ought to be done, or that is done that ought not to be done, or that is not done that ought to be done. Of prescriptions likewise some are perpetuall, some temporall; the effect of eyther of them is to determine the actioney ther in the maner of doing, or by the time when it was done, or by the place where it was done, or by some other like circumstance.

An Obligation is a bond of the Law, whereby a man is necessarily bound to pay some thing to an other man: Obli­gations arise eyther out of bargaines betwéene man & man, or out of some offence that is done: Obligations by bar­gaines are procured eyther by some thing that passeth be­twéene the parties, that doe contract, or else is effected by words, or consent. Out of obligations spring actions, which are nothing else but a right to prosecute that in iudgement which a man pretendeth to be due vnto him, whereof there are two sorts; of which one is a challenge for right of a thing due, thother a sute against a person for some offence or tres­pas done.

The seauenth & last part being deuided into sixe Bookes, treateth of Obligations which stand in wordes, and their effect; how far two or more principall debtors are bound to the creditor, in the whole, or euery one for his owne part: Of Suerties, and how far they are bound, and whether the dis­charge of the one be the release of the other: & by how many waies Obligations by wordes are dissolued or released, by renouation, by payment, by acceptation of the debt not paid, as if it were paid. Of Obligations some are ciuill, as those which haue béene heretofore handled, some Pretorian or pertayning to the Chauncery, as those whereby Tutors, Curators, & Proctors, enter inte land vnto a child, his state shall be safe, that is committed to their hands: That, that shall be paied which the Iudge ceaseth: That the Plaintife [Page 16] shall ratifie and allowe that which his Proctor shall doe for him, in iudgement, and such like. Criminall Iudgements are priuat or publike, that is, they are commenced eyther vpon priuat offences, or vpon publike faults and suits. Pri­uat offences concerne priuat mens reuenge and iniuries. Publike, the reuenge or iniurie of the whole state. Priuat offences which had ordinarie procéedings, and ordinatie pu­nishment, were many, among which Theft is the chiefest, which is a deceitfull fingering of an other mans goodes, with intent to gaine eyther the thing it selfe, or the vse or possession thereof, so that the mind alone maketh not theft, but the act ioyned to the mind, be the quantity neuer so smal. Of Theftes, some are manifest, other not manifest; mani­fest is that wherein the offender is eyther taken in the déed doing, or taken before he could cary away the thing stolne thither whether he entended: the punishment whereof was fower double the value of that, which was stolne: Not manifest was that wherein the party offending was not taken in the déed doing, and the paine thereof was the dou­ble of that which was purloyned, or taken away. If any pilfery or theft be done in a Ship, Tauerne, or Inne, the Master of the ship, tauerne, or Inne, is to answere double the value thereof, if the same be done by himselfe, or their selues, or any of their mariners or seruants: for it beho­ueth them to haue honest men, whom they are to imploy in such seruices: But if it be done by any of the passengers, or guests of the house, the owners of the ship, tauerne, or Inne, are not to answere for the same, for they can­not turne away such guests as come into their house, ney­ther in all likelyhood know they the qualitie or condition of their guests. If any man priuely, vnwitting the owner thereof, cut downe, hacke, or barke any trée of any sort whatsoeuer, or those that are of the nature of trées, as Iuey réedes, willows, so that they be spoyled, he is to answere the double value of that he hath cut downe & spoiled: and further, if it be a Vine trée, to be punished as a robber. He that taketh any thing away from another by violence, is to be punished [Page 17] in the worth foure fold, for that it is a sin more grieuous then theft: If any man, vpon any ill intent, make a Tumult, wherby any hurt commeth to any man, hee shall answere double of that the party is harmed in: If any, vpon a burning of a house, or the fall thereof, or vpon a shipwrack, or the spoi­ling of a boat or ship, steale any thing away, or being put in trust to kéepe any thing thereof, conceale the same, he shall pay the foure double of the same; but if any man set the same a fier himselfe, he is either to be cast out to wild beasts, or is to be burnt with the same fier he went about to burn another with. If any haue spitefully contumeltously iniured ano­ther man his wife, or children, in déed, word, or writing, they are to forfait so much as the partie grieued shall estéem him­selfe iniured by, or the Iudge shall tax it at. A famous Li­bell is where a man hath of malitious purpose writ, com­pounded, or set out any thing to the infamie of another, with­out a name, or with a name, and the punishment therof is death, and anciently was, that he lost the power or libertie to make a Will; the like punishment followeth him that ha­uing found an infamous Libell, doth not by and by spoyle the same, that the knowledge thereof come not abroad, especially where the matter thereof is capitall or worthy death. Extraordinarie crimes, are those which haue no or­dinarie punishment appointed them, but are arbitrarie at the Iudges appointment, such as are Sollicitors of other folkes wedlockes, and Maids chastities, although they misse of their purpose; such as of purpose cast myre, durt, or any like filth vpon another, to the intent to disgrace him: such, as being with child, of purpose cause themselues to miscarie: Such as kéepe brothell and baudy houses, or other vnlawful company: Iuglers, and such as carie about Snakes, and o­ther like Serpents and trumperie to put men in feare: Such as hide and suppresse Corne, to cause the price to be dearer: Such as eyther make, or vse false waights wittingly; for all which, because there is no proper punishment prouided in the Law, they are referred to the punishment of the Iudge, who is to punish them according to the qualitie of the fact, [Page 18] age, and vnderstanding of the offender, and other circum­stances according as he shall thinke good; so, notwithstan­ding that he excéed not a conuenient measure therein, nei­ther stretch the same to death: but vpon some great and weightie cause, he is to be content with meaner punishmēt, as temporall banishment, whipping, or some moderat pecu­niarie mulct. For violating or defacing another mans sepul­cher, Infamy was imposed, besides a pecuniarie mulct to be diuided betwéene the Prince and the partie grieued, but if any dig vp the corse of the deceased, the punishment is death: If any, by feare of his office or authoritie, wring any money from any man, or exact more fées in any matter than hee ought to doe, or cause him to marry or doe any other thing he would not doe, the forfeiture is foure double the value of that which hath béene taken, beside further punishment at the discretion of the Iudge. Such as driue mens cattell out of their ground, or seuer them from the flock or heard, with intent to steale them, if they doe it with a weapon like vnto a Robber, are condemned to bee throwne to wild beasts, otherwise are more lightly punished according to the discretion of the Iudge. Such as in Iudgement take mo­ney on both sides, or taking vpon them, the defence of one side betray the cause and take money on the other side, are infamous by law, and are punished at the discretion of the Iudge. Such as receiue théeues and other like malefactors are punished, in like sort as the théeues or malefactors them­selues are; specially if they haue assisted them in their wic­kednesse: otherwise, if they onely knew it and receiued them, they are more mildly to be punished, specially if the of­fenders were their kinsmen: for their offence is not like theirs which entertaine those which are no kin vnto them at all, when as it is naturall for euery one to regard his own blood: and fathers are many times more carefull for their children then for themselues; but if that hee that receiued them knew nothing of the offence, then is hee altogether to be excused. Such as breake prison are to bee punished by death, because it is a certaine treason to breake the Princes [Page 19] ward, but if they scape by the negligence of the Kéepers, a­gainst whom the presumption lyeth euer in this case, they are more lightly to be punished. If any commit Burglarie, breaking vp a dore or wall, with intent to doe a Robberie, if they be base companions they are to bee condemned to the Mines or Gallies; but if they be of better reckoning, they are to be put from the ranke or order wherein they are, or to be banished for a season. Iuglers and like Impostors which goe about deceiuing of the people with false tricks and toies, hookes and such like, which insinuat themselues into other mens houses, with purpose to steale, are punished at the dis­cretion of the Iudge. If any steale or take away any thing out of the inheritance of another man, before either the Will be prooued, or adminstration be taken; an action of theft lyeth not, because the inheritance, during the time, was counted no bodies, but hee is to be punished by the discretion of the Iudge; yea, though it were the heire himselfe that did it. Cosenage, whereby a man craftily suppresseth something he should not, or putteth one thing in anothers place, to the de­ceit of him that he dealeth withall, or corrupteth such wares which hee vttereth, or doth any other thing collusorily, which is called of the Law Crimen Stellionatus, of a little ver­min or creature called Stellio, much like to a Lisard, most enuious to man, is censured by some ignominious and sham­full punishment, or by disgracing the person, by putting him out of the Office, Place, or Order he is in, or by inioyning him some seruile worke, or by banishing him for a time, or by some like punishment, at the discretion of the Iudge. If any plough vp a Mere balke, or remooue any other marke which hath accustomed to bee a Marke or bound betwéene ground and grounds, which aunciently was counted reuerend and religious among men the offence is pu­nished either by a pecuniarie mulct, or by banishment, or whipping, at the discretion of the Iudge. Vnlawfull Colledges, Corporations, and assemblies, gathered to­gether to bad vses, as to eating, drinking, wantonnesse, heresie, conspiracie, as punished are publike Routs or Riots, [Page 20] otherwise at the discretion of the Iudge: All these, before recited, are called Populer Actions, because, not only he that is iniured, but euery other honest subiect may peruse and prosecute the same.

Publick Iudgements, are such which immediatly pertain to the punishment of the common wealth for example sake, and are examined, tried, and punished by a publicke order appointed by Law, the partie grieued, making himselfe par­tie to the suite, and following the same; the partie accused in the meane while remaining in prison, or putting in suerties for his apparance, and the partie grieued for the prosecuting of the same. The chiefest of which sort is Treason, which is a diminishing or derogation of the Maiestie of the people, or Prince, on whom the people haue collated all their power, which is punished with death, and confiscation of the Lands and goods of the offender, and the eternall abolishment of his memorie. The next is Adultery, which is violating of ano­ther mans bed, whose punishment aunciently was death, both in the man and in the woman, but after it was mitiga­ted in the woman, she being first whipt, and then shut vp in a Monasterie: but by the Canons, other paines are inflicted. Vnder Adulterie are contained, Incest, Sodomy, Baudery, and all the rest of the sins of that kind. Publicke force, is that which is done by a company of armed men, collected toge­ther, and the correction thereof is perpetuall banishment. Priuat, which is done without Arms, the paine thereof is the losse of halfe the parties goods, and the infamie of his name. Murtherers and Poysoners, Witches and Sorce­rers, the crime being proued, dye the death: such as set mens houses a fire, are to be consumed with fire themselues: such as Kill either Father or Mother, or those that are in the place of Father or Mother, or any that are of next a kin, their pu­nishment is death; and in case of the Father and Mother, be­side the paine of death, the Parricide being first well whipt, so that the blood doe follow in good plenty, being sowed vp in­to a sacke, together with a Dong, a Cock, and an Ape, hee is throwne into the depth of the Sea. Such as make false Cer­tificats, [Page 21] forge false Wils, Depose false wittingly, suborne witnesses, take money either to say, or not to say their know­ledge of that which they are demaunded of in Iudgement, corrupt Iudgement, or cause it to be corrupted, interline, put in, or rase out any thing out of any writing, that the trueth thereof may not appeare as it was written, suppresse Wils or Testaments, or other like writings, counterfait other mens hands and Seals, openeth any mans Wil yet liuing, and imparteth the secrets thereof to the parties aduersarie, vnsealeth such instruments or writings as are left with him to kéepe, bequeath vnto themselues Legacies in an other mans Will without his good will and priuitie, wash or clip gold or sowder therein any corrupt mettals, make base siluer money, pretend themselues to bee Noble men or Gentle­men, whereas otherwise they are but base persons, wilfully challenge vnto themselues another mans name, or Arms, cog and foist in womens labours or otherwise, false births or Adulterous children, in stead of true and rightfull heires, sell one and the same thing to two men, carrie about false Pasports, vse false Measures, or corrupt those that are true, in some cases, are punished by death, in other by banishment, imprisonment, or cutting of both or one of the hands of the offender. If any bearing any publike office, abuse the same to gaine, and doth that for money which he ought to do for thanks; the Law ordereth that the offender shall be called to accompt for his supposed briberie, and if he bee found guiltie therof, fineth him foure fold double to the partie grieued, and beside, decréeth him to be banished. Such as by il deuises and policies, raise vp the price of corne, and other victuall, or get the whole sale of any marchandise into their hands, that they may sel it the dearer, are punishable at the discretion of the Iudge, which according to the qualitie of the person and fact reacheth sometimes to banishment, sometimes to death it selfe. If any take, purloine, or interuert to his owne vse any money dedicated to holy and publicke vses, or cause the same to be taken, purloyned or interuerted, or if any take away any brasen table, wherein any publicke Lawes are [Page 22] grauen, or the bounds of any Lands are described, or blot out or change any thing therof, or couenously pay in lesse mo­ney into the Exchequer, then by right he ought to haue done, and hath not cléered with the Exchequer for the residue, is to be condemned in the thrée double of that which is the re­sidue, and is beside to be banished.

If any, to get an Office, procure a number of hyred voices, besides the losse of the Office hee sueth for, his punishment is temporall banishment. If any steale a­way any child, the bodie of any fréeman, and sell the same away, or detaine them against their will, the fault is death. If any slanderously charge another with any false crime, or wittingly beare any false witnesse against him, or willingly giue any wrong Sentence against him, or on the contrarie side, dissembleth such faults as hee knoweth, and colludeth with the aduersarie, or gi­ueth ouer the prosecution of a crime, hee hath vnderta­ken to follow, vntill hee haue leaue graunted him by the Iudge, to desist from his accusation, the same is to bee punished with the like kind of punishment that hee would haue the other punished by, vnlesse hee bee acquit­ted therefro by the Princes Pardon, or that the Aduer­saris bee dead. In publike Iudgements where the Of­fender appeares not, Proces is to bee awarded out against gainst him for his apparance, by a certaine day to cléere himselfe, at which day, if hee appeare not, an Inuentory is taken of his goods, not to the intent they should be spent but that they should be reserued to his vse, if he returne a­gaine within a yeare, and cléere himselfe; otherwise they become the Exchequers for euer, how innocent soeuer the partie afterwards appeares to bee. If the Offender be pre­sent in Iudgement, and deny the fact, he is to be confuted by witnesses, or other proofe, or if there be iust matter of suspition, to bee put on the racke; which, albeit in matters of lesse daunger, it is great crueltie, yet in great and hor­rible crimes it is necessarie: If the Offender haue either confessed the crime, or be conuicted thereof, then it followeth [Page 23] that the partie conuicted, be punished either by death or o­therwise, according to the qualitis of the person, or conditi­on of the offence. Punishments by death are foure, Hang­ing, Burning, Heading, and Casting the Offender to be deuoured by wild beastes, amongst which may be reckoned, Exile or Banishment, for that it takes away a mans liber­tie, and bereaues him of his country, which to euery good subiect, is as deare vnto him as his life it selfe.

Punishments which did not inflict death, were many, and such as it pleased the Magistrat in his discretion to ap­point. The Law hauing passed vpon the Offender in such sort, as he hath lost his life, libertie, or countrie, his goods became forthwith forfaited to the Prince, such (I meane) as are of value: but for the other, the Law alloweth them the prisoner, for his maintenance during the time of his im­prisonment, and satisfying such sées as are due to the Offi­cers thereof; which hath place where the offender hath no children, otherwise the one halfe of his goods commeth to his children, vnlesse it be in case of Treason where all is confiscated. They are also held for conuict and guilty, which either vpon a guiltinesse of minde make away themselues before Iudgement, or stop their Aduersaries with a bribe, that they shall not follow the Law against them, and their goods are no lesse confiscat then the others. But it is other­wise in those which are banished for a time, or to a cer­taine place, or in such as the Law hauing once passed v­pon them, are either in their life or after their death, by the bountie and mercie of the Prince restored; in which case they recouer Goods, Name, and Honour: the body being executed the carcasse for the most part is graunted to buriall, vnlesse it be for matter of Treason or other such like offence. If any haue bin vniustly condēned, either by the iniquitie or vnskilfulnesse of the Iudge, the law alloweth him an appeal, that is a prouocation to a higher Iudge, that he may hear the cause anew, & reforme that which is Iudged amisse into bet­ter: and if the higher Iudge find the partie grieued, hath well appealed, he is to reuerse the former sentence, otherwise to [Page 24] send the Offender back to the Iudge from whence he came, there to receiue his punishment: yet some persons there be from whom no appeale lieth, as from the Prince, or Senat, because they represent the Prince; neither may hee appeale which hath renounced his appeale. Appeales are made from lower Iudges to higher, and from him that is Delegated to him that did Delegate: Appeales are to be made within ten daies after Sentence giuen, or within ten daies after the Notice is come to the partie, against whom the Sentence did passe, vnlesse there attend thereon a continuall griefe, in which case, a man may appeale so long as the griefe indures: the time to aske Dunissorie Letters, is thirtie daies from the Sentence giuen; the time to present the same to the Iudge, is at the discretion of the Iudge from whom; the time of pro­secuting the same is a yeare, or vpon iust cause two yeares, in which time, if the sute bee not ended, the cause is de­serted, and to be sent back vnto the Iudge from whom the Appeale was first made: while the Appeale hangeth, nothing is to be innouated, because by the Appeale the Iudges hands are, as it were, bound: but if the former Sentence were void by law, as in sundry cases they are, then there néedeth no Appeale; for such Sentences neuer passe into a case Iud­ged. Appeales in criminall cases cannot be iustified by a Proctor; but it is otherwise in Ciuile causes. An Appeale in one cause doth not exempt the partie appellant from his own Iudge in other causes: If the appellant die, during the time of the Appeale, and leaue no heire behind him, the Appeale ceaseth, but if he leaue an heir behind him, & the matter of the Appeale concernes none but himselfe, he is not to be compel­led to follow it, for euerie one may renounce his owne suite: but if it concerne the Exchequer, or any other bodie, then may hee be compelled to follow it. The Exchequer is the Princes Treasurie, and the patrimonie of the common wealth, and hath many & singuler prerogatiues, which pri­uat men haue not. Such as are taken captiue by the enemy, become their seruants, who haue taken them, vnlesse eyther they escape home againe themselues, or be ransomed by their [Page 25] friendes, in both which cases they recouer all right and pri­uiledges they had in their owne common wealth before. By the Law all Subiects whatsoeuer are bound to serue the common wealth in warre, insomuch that if any being prest withdraw himselfe, or his child from it, he is to be counted as a rebell, and for his punishment is to be banished, and mulcted or fined in the greatest part of his goods. As the pri­uiledges and rewards of Souldiors were many to incorage them to vertue and manhood; so their shames and punish­ments were great, to feare them from cowardice and vice: But among the rest of the priuiledges of Souldiors, the old Souldiors were the greatest. Of Subiects, some dwelt in Shires, and liued after their owne Lawes, and yet neuer­thelesse were made partakers of the honors of the Citie: some other were inhabitants onely in the common wealth, and had onely a house in the same place to dwell in, and had no right to beare office: some other were straungers brought in, which were ruled by the Law of them among whom they dwelt. Amongst those that dwelt in Shires, the chiefest Ma­gistrate was he whom they called Decurio, who was not sent by the people of Rome thither (for he was a Magistrate of Magistrates) but elected by the people there; and his of­fice was, to kéepe the treasurie of the Countrey, to prouide victuall, exact tribute, and gouerne the state there, in maner as our Shirifes doe here: His office was onely annuall, least by libertie, and lust of gouernment and continuance thereof it might grow into a tyrannie. Such as are Subiects, are to serue the common wealth in such offices, places, and serui­ces, as their abilitie is fit for, and the necessitie of the com­mon wealth requires. The seruices of the Common wealth were of thrée sorts; Patrimoniall, such as belong to euery mans patrimony to performe, which stood chiefly vpon pay­ments and charges, which were to go out of euery mans in­heritance towards the performance of such burthen as lay vpon him by law, custome, or commaund of him that had power thereto: Personall, which were to be performed by the care and industrie of the partie and his corporall labour, [Page 26] without expence of his purse. Mixt, which required both care of the mind, and labour of the bodie, and expence of the purse, and are imposed aswell in consideration of the thing, as the person, which euery subiect is to vndergo, vnlesse by the Law, or by the indulgence of the Prince they are excu­sed; as some are excused by reason of olde age, some by yong age, some for their dignitie, some for their calling, some for their state of bodie, some for that they serue in the necessarie seruices of the Common wealth at home, or abrode, as Im­bassadors doe, some for that they are necessary places of ser­uices for Gods Religion, as cathedrall Churches, & other Churches are, some for that they are good and necessarie pla­ces for Seminaries for the Common wealth, for learning and such other imployments, as Colledges, Societies, and Schooles of learnings and nurture are. Legates and Im­bassadors had immunitie from all publike seruices, not only the time of their embassage, but also two yeare after their re­turne; They were called Legates, in that they were chosen as fit men, out of many; their person was sacred both at home and abrode, so that no man might lay violent hands on them without breach of the Law of Nations. Such as are Magistrats of cities ought so to gouerne, that no negligence may be iustly imputed vnto them, otherwise they are to an­swere it, and that when their office is expyred, they giue vp a iust accompt, both of what they haue receiued, & what they haue laied out, & pay in the residue, if there be any. Gouer­nors of Cities, together with the consent of the Burgesses therof, may set downe such orders and decrées, as are for the benefit & well ordering thereof, which are to be obserued of all those which are Inhabitants therof, and being once wel and duely set downe, are not to be reuersed, but to the good of the Citie or Comminalty. New publike works, such as are good for the Common weale euery one may make without the leaue of the Prince, vnlesse it be done for emulation, or cause of discord; but for old works, in which stands the securitie of the Common wealth, as Castles, towers, gates, and wals of Cities, nothing is to be done or innouated in them without [Page 27] the Princes warrant, neyther is it lawfull for any man to graue his name in any publike work, vnles it be his at whose cost the work is done. Faires are authorized by Princes only & are inuented for trade of marchandize, & vttering of wares, which Countrymen haue cause to buy, or sell: and haue their priuileges, that no man in any Faire can be arrested for any priuat debt; they are called Nundinae therupon, that euery ninth day they were holden, either in one place or other: He that for x. yeares space intermitteth to vse his Fayre, loseth the priuiledge therof. If any make any promise to a Citie or Common wealth to do any thing vpon certain cause, as that he might be made Consul, or that he would repaire some part of the Citie that was burnt, he shall by the Law be compelled to performe his promise: for it is not meet that such promises should be satisfied with repentance. Such as professe liberall Sciences in any Common wealth, whereby youth is instru­cted, & brought vp to knowledge, or be Scholmasters, or pro­fessors of Phisick, or be Midwiues, Notaries, Auditors, or Casters of accompts, or Registers, the Law alloweth not only a competent stipend in recompence of their skil & paines, but also affordes them meanes how the same may be recoue­red, if it be denied. But as for Philosophers & Lawyers, the Law hath appointed them no stipend, not because they are not reuerend Sciences, & worthy of reward or stipend, but because either of them are most honorable professions, whose worthines is not to be valued or dishonored by money: yet in these cases many things are honestly taken, which are not honestly asked; and the Iudge may according to the qualitie of the cause, and the skill of the Aduocate, the custome of the Court, and the worth of the matter that is in hand, appoint them a fée answerable to their place, as also to such as are In­terpreters betwéene parties in matters of traffique, when one vnderstands not an others language.

The second Tome of the Law is the Code, & stands in xij. Bookes, whereof eight for the Titles follow in a maner the order of the Digest, a few titles only excepted, which are ad­ded, besides those of the Digest, but as for the 4. other, which [Page 28] are the first, the tenth, the 11. & the 12. although the subiect they treat of be named in the Digest, yet the things which are there named are not handled in the Digest, and therefore will I passe ouer those 8. other, lest happily I might séeme to do one thing twice, & therefore will I refer the Reader ouer to that which hath bin said of them before in the handling of the Digest; for they are almost twinnes of one mother, so that whosoeuer knowes the one, shall with no great difficul­ty discerne the other, & come to the other fower, yet not men­tioned there: But yet before I lay open the matter therof, I wil in a word or two shew why this volume of the Law is called the Code, who is the author thereof, & out of whom it was collected, what moued the author after so many learned titles set downe before, of such things as are in the Digest deduced, by such a number of worthy Lawiers (as the lawes of the Digest themselues doe by their inscriptions shew, for euery law carrieth with him in his forehead the name of his Author) to make a new florish of the same, & what the know­ledge of the Code odth confer vnto a Student or practiser of the Law more than the knowledge of the Digest doth.

The Code therefore is named of the word Caudex, that is the trunck or timber of the trée from which the barke of the trée is pild or puld off, of which men aunciently vsed to make writing tables, artificially binding them vp into the forme of a booke, and vsing them for bookes, before the vse of paper or parchment was knowen, insomuch as many of these tables being bound together, they were called a Code, or booke: besides whereas the auncient Lawyers before Iu­stinianus time, vsed to write their pleas and answeres in scroules of paper or parchment, Iustinian himselfe first put them in a booke, and therefore termed them by the name of a Code.

The Code it selfe is compiled of the answeres of 56. Em­perors, and their wise Councell, whereof sundry were lear­ned & skilfull Lawyers, as the storie of that time doth shew, and the Lawes themselues do name some of them, as that most excellent and famous man Papinian, and some others; [Page 29] that is from the dayes of Adrian the Emperor, vnto the age of Iustinian himselfe.

The cause that moued Iustinian hereto was, that in the Di­gest he found not euery case decided that fals out in common vse of life (for how is it possible when as euery moment there fals out new matter, for which former Lawes made no pro­uision?) and therefore thought good to supplie that by new Lawes, which he found defectiue in the old: so that the mul­tiplication of those titles grew not, that the Emperor had any meaning to fill the world with multitude of Lawes, for he had found the inconuenience thereof already, and there­fore had repealed and abolished so many thousand of olde Lawes, as he had; but it came rather of that, that the mul­titude of causes were so many, that euery day there fell out some vnexpected thing that was neuer heard of before: be­side notwithstanding the carefulnesse of the Emperor him­selfe, and his great Lawyer Treboman, and others, whom he vsed for the selecting & chosing out of the purest, best, and most agréeing Lawes among themselues, out of that indi­gested heap of Lawes, he then abolished; yet they were not so quicke sighted, but in that great worke sundry antino­mies or contrarie Lawes past them, which had néed to be expounded and amended, and the Authors to be recited. Further sundry of ancient Lawes were so subtlely written, that there was more wit then profit in them, so that it was expedient the Emperor should explane the same, and put­ting all subtlety a side, giue a right sence vnto the Law. Lastly whereas many things were deliuered by them brief­lie, and therefore obscurely, the Law-giuer in his princely wisdome, set out the same in other Lawes more plentifull and distinctly, all which were the chiefest causes why the Emperor set out the booke of the Code.

The Code neither in style neither in methode commeth to the perfection of the Digest, as that which for the style is a barbarous Thracian phrase Latinized, such as neuer any meane Latinist spake, whereas notwithstanding the style of the Digest is verie graue and pure, & such as doth not much [Page 30] differ from the eloquentest spéech that euer the Romanes vsed, and for the Methode, it hath no particuler disposition, other then such as is borowed of the Digest it selfe, & other­wise is rude and vnskilfull, where it doth recéede from the same: yet doth it not lack his good vse, for to such as follow the practise of the law, the knowledge of the Code is much more expedient then the knowledge of the Digest is, for that the lawes of the Code doe determine matter in daily vse of life; which, when they are like in all ages (for the same is euer­more vpon the stage, the persons a litle altered) it cannot be but the learning thereof is very profitable and expedient for the Common wealth, whereas notwithstanding the lear­ning of the Digest stands rather in discussing of subtill que­stions of the Law, & enumerations of the variety of opinions of ancient Lawyers thereupon, which haue more commen­dation of wit, than benefit toward the common wealth in them; but hereof hetherto.

The first Booke of the Code treateth of Religion, and the Rites & Ceremonies thereto belonging, whereof I said there was no special Tractat in the Digest, sauing that it deuideth the publike right into that which concernes the Church, and Church men, & the Magistrates of the Common wealth, pro­secuting the latter branch thereof only, & omitting the first, because out of that heathenish Religion which was vsed in those ancient Lawyers daies, and those supersticious Rites, whereof their Bookes were full, nothing could be taken that might serue for our Religion: wherupon he instituted a new discourse thereof in the Code, beginning first with the blessed Trinitie, one in essence, and thrée in person, wherein he sets downe a briefe summe of our Christian faith, agréeable to the doctrine of the Prophets, & Apostles, and the fower first ge­nerall Counsels, the Nicene, Constantinopolitan, Ephesine, and Calcedon, forbidding any man publikely to dispute, or striue thereabout, taking occasion vpon the Nestorian Here­sie, which not long before had sprung vp, and had mightily infected the Church, which Iustinian by this confession of Fayth so published to the whole world, and penall Edict [Page 31] ioyned thereunto, hoped to represse: After he hath set downe a full and sound confession of the Christian faith, confor­mable to the Primitiue Church, next he addeth a title of the holie Church it selfe, and of her priuiledges, which either concerne Ecclesiasticall mens persons themselues, or their state, and substance, or the actions one Ecclesiasticall man had against an other, or with or against Lay persons: where also he prosecuteth the degrées of Priests, or Ministers, their offices, orders, and how the same are to be come by, (that is without bribes or Simonie, or other worldly respect saue the worth of the person onely) and the rights of holie places. Priests are so called, because they were consecra­ted, and as it were seuered from the rest of the people, and giuen vp to God: which also were called Elders, eyther be­cause they were so in age, or ought to be in such manners, and carefull cariage of themselues. Amongest Priests, or Ministers, Bishops haue the first place, who are as it were the Ouerseers and Superintendents of the rest, so called of their watchfulnesse, care, labour, and faithfulnesse in teach­ing the people, and doing other dueties, which they owe vnto the Church. The lowest degrée of men among the Ec­clesiasticall hierarchy were the Clarkes, so called of their lot by which they were chosen and allotted to Gods seruice. To Bishops Priests, and other of that rank, did appertaine the care of Hospitals, whereof some were for Orphans, some for Infants, some for Impotent and diseased persons, some for Poore people, some for Strangers, & other like mise­rable persons, & therefore together with the title of Bishops & Clarks is ioyned the title of Hospitals, or Almes-houses. In place next after the Bishops themselues, comes their po­wer & audience; for albeit the chiefest office of a Bishop is to instruct the people in the doctrine of the word, & in good exam­ple of life: yet forasmuch as all will not be obedient vnto the word, neither brought by the persuasion thereof to good nur­ture, & to be kept in order, & the eminency of the degrée, wher­in the Bishops are placed, is not sufficient to kéepe the people in obedience without some power & iurisdiction, and because [Page 32] the Church it selfe is the mother and maintainer of Iustice, therefore there is by the Emperor himselfe, and his prede­cessors, as many as professed Christianitie, certaine pecu­liar iurisdictions Ecclesiasticall, assigned to the Bishops, more worthy then the Ciuill, ouer persons and causes Ec­clesiasticall, such as touch the Soule and Conscience, or do appertaine to any charitable or godlie vses: and ouer the Laitie so far forth as eyther the Laitie themselues haue bin content to submit themselues vnto their gouernment, that is so far, as eyther it concernes their Soules health, or the outward gouernment of the Church in things decent or comly, or that it concernes poore and miserable persons, such as widowes, orphans, captiues, and such other like help­lesse people are, or where the Ciuile Magistrates cannot be come by, or doth voluntarily delay iudgement; in all which anciently a Bishop was to performe double fayth and san­ctitie, first of an vncorrupt Iudge, and then of a holy Bi­shop. But in many of these matters in these dayes, the Lai­tie will not suffer themselues to be controld, and therefore hath taken away most of these dealings from them, yea, euen in charitable causes. Immediatly followeth a title of Heretickes, Maniches, Samaritans, Anabaptists, Apo­stataes, abusers of the Crosse of Christ, Iewes, and wor­shippers of the hoast of heauen, Pagans, and of theyr Tem­ples and Sacrifices; whom the Bishop is not only to con­fute by learning, but also to suppresse by authoritie, for he hath not the Spirituall sword in vaine. The Heretickes, Iewes, and Pagans shall not haue Christian men and wo­men to be their seruants: that such as flie to the Church for Sanctuarie, or claime the ayde thereof, shall not be drawen from thence, vnlesse the offence be haynous, and done of a pretensed and purposed malice, in which case no Immuni­tie is to be allowed them, but wicked people are to be pu­nished according to their desert, agréeable to the word of God it selfe, which would not haue his Altar be a refuge vnto the wicked: And so far of that part of publike right, which appertayneth to the Priestes, or Ministers, and [Page 33] their Function, which was omitted in the Digest, but pro­secuted in the Code. Now it followeth, that wyth like breuitie I run ouer the thrée last Bookes of the Code, which themselues were rather shadowed in the Digest, in the title of the right of the Exchequer, then in any iust pro­portion handled.

The first therefore of them setteth out, what is the right of the Exchequer, and in what things it standeth, as in goods excheted, because there is no Heire vnto them, or that they are forfeyted by any offence wor­thie death, or otherwise. How such as are in debt to the Exchequer, and their suerties are to be sued. Of the right of those things which the Exchequer sels by outcry, where he that offereth most carrieth it away, and how the same may be reuoked, vnlesse all rights and ceremonies bee solemnly performed therein. How things that are in Common be­twéen the Exchequer and priuat men, may be sold, and that the Exchequer euict nothing that it hath once sold, for that, it were a thing against the dignitie of the Exchequer, & would terrifie priuat men for bargaining with it. Of those that haue borrowed money out of the publicke receipts, and what pe­naltie they incurre, if they repay it not at their daies coue­nanted, sometimes the forfaiture of foure double of that they haue borrowed, sometimes danger of life it selfe. That in ca­ses of penalties, the Exchequer be not preferred before such as the Offender was truely indebted vnto, but that they be first serued, and then the Exchequer haue onely that which is left. What vsurie the Exchequer may take, that is for money lent, and not for such sums as grow out of Mulcts and Penalties. That such sentences that are giuen against the Exchequer, may be retracted within thrée yeare follow­ing, although ordinarily all other Sentences are irreuocable after ten daies; neither can be reformed after that time, ei­ther by rescript of the Prince, or by pretence of new proofe. Of the goods of such as exchet by reason they haue made no Will, and of the goods of Incorporations, that is, of such as dye without Heires, that they come not to the common [Page 34] banke of the citie, but that they exchet vnto the Prince: Of Promotors, by whose information any goods are confiscate, either by reason of the goods themselues, as that they are ad­ulterine, or that they are prohibited to be exported or impor­ted, or vpon some other like cause, or by reason of the per­sons that haue offended, and crimes wherein they haue of­fended; and their punishment, if they giue in any wrong in­formation, or other then such as they are bound vnto, by ver­tue of their Office: and that they giue no information in, but by aduise of the Attorney of the Exchequer, and that they make no information against their Lord and Master, but in case of Treason: that it shall be lawfull for no man to make suite vnto the Prince for those things that are confiscated vnto the Exchequer, as though it were more Honorable for the Prince to bestow such things on his Courtiers, then to kéepe them to himselfe: and therefore, such as are the Princes Secretaries, his Masters of Requests, and o­thers that are of his remembrance, are forbidden to make a­ny Acts, Instruments, or other writings hereof, vnlesse the Prince of his owne motion, and at no other mans suite, will or commaund the same: Of such as put themselues in­to the Exchequer, vpon any confession made against them­selues: Of such to whom the Prince ioyntly hath giuen any farme or like thing, that where one of them dyeth without an heire, the other may succéed him: Of Treasure found, that the Exchequer be made acquainted with it; and that if it bee found in a publicke place, halfe goeth to the Exchequer, the other to the finder: but if it bee in a pri­uat place, then halfe to the Lord of the soyle, and the o­ther to the Finder: Of prouision for Corne and such other like: Of Tribute, which was an ordinarie payment: Of imposition and super-impositions, which were paiments laid vpon the subiect aboue ordinarie tax, for some pre­sent necessitie, to which charges the ordinarie tax doth not suffice; which was not to bee done, but vpon great and vrgent cause, by a councell called together, and with the consent of the subiect: Of Collectors of the Subsidie, and [Page 35] in what manner they are to bee collected and brought into the Exchequer, and of the punishment of those that in the collection thereof extort more than is due: that it shall bee lawfull to distraine for Tribute vnpaid: that such acqui­tances as the Exchequer shall deliuer vnto the accomp­tants, shall bee their full and finall discharge: and that the Subsidie Bookes shall euery quarter bee sent vp into the Exchequer, with the account of the Collectors, that there­by it may appeare how much euery man hath paid or ow­eth vnto the Exchequer: and that nothing may bée doone for the grieuance of the poore, or the fauour of the rich: Of the booke of accounts of yéerely gifts that commonly Subiects present vnto the Prince at New yeares tide and otherwise, and that they bee diuided from the accounts of the Exchequer: That no man bee fréed from the pay­ment of Tribute: Of spending out such ancient graine and other like prouision as is laid vp in the common store­house, and making prouision for a new, and compelling the subiects, such as haue plentie of such graine, if it hap­pen to bee vinoed and mustie, to buy the same, that the whole losse thereof may not lye vpon the Exchequer: What pension such Mannors as the Prince hath giuen or released from payment of Subsidies shall giue, and that no man bee so hardy to beg such a matter of the Prince lest the reuenews of the Exchequer be thereby diminished: Of Mannors that haue béene translated from the payment of one kind of pro­uision to another, or that haue béene in their taxation ouer rated: Of Brasse that Minerall Countries are to yéeld, or money in lieu thereof: Of Controllers, whose Office it was to cast ouer againe such accompts as were brought into the Exchequer, or to examine them a new, least perhaps, there might bee an errour in them.

And so far as concerning those things which doe apper­taine to the accompt of the Exchequer, or the patrimony thereof, or such pensions or payments as are due vnto the same. Now followeth the other part of this tenth Booke, [Page 36] which containeth the burthens, duties, or offices imposed on the subiect by the Exchequer, and what excuse the subiect might alleage in this behalfe.

Burthens or dueties, were either personall, as places of Honour, which were not to be continued from the father to the child; or they be Patrimoniall which are charged vpon mens inheritance, either for the good of the common wealth, or to inrich the Exchequer against dangers that are like to insue: which are vndertooke and performed either by those which are of necessitie to obey that which is inioyned them, or by those which offer themselues voluntarily therto, which seldom happeneth in patrimonial charges: but in matters of Honour and Personall seruices, it many times commeth to passe, that men excuse not themselues from bearing of Offi­ces, or doing of Personall seruices, although they haue an immunitie from them, either by the graunt of the Prince, (which is to be vnderstood of extraordinarie seruice only, and not of ordinarie) or by the benefit of the Law; for by the law men are many times vpon iust causes excused from Perso­nall seruices, so it be not from such seruices as no man can excuse himselfe from; such as are Postings and carriages, when the Prince passeth by, or the Tenure of his Inheri­tance doe so require it, and the erecting and repairing of Bridges, Waies and Wals, the prouision and carriage of Corne, and other like kindes necessarie for the maintenance of the Princes house. Men are excused either generally from all kinds of seruices, or particularly from some: as all Minors, specially such as are Students in any famous V­niuersitie, whilest they giue themselues there vnto their booke, are excused fron all Personall seruices, but not from Patrimoniall seruices; as also all old men of the age of sea­uentie yeares and vpward, all professors of Liberall Sci­ences, whereby the common wealth is benefited, all pro­fessors of Phisick, Grammer, Oratorie or Philosophie, so they bee allowed by the Magistrate and seauen skil­full men in the profession which they make shew of, and bee not Supernumerarii, or aboue the number of those [Page 37] that are to be allowed, in which number are, neither Po­ets or Auditors: they are also excused, which vpon iust cause are dismissed, either out of the Army or out of the Schooles, either for lack of health, or that they are so wounded, that they can neither serue in war any longer, nor longer in­dure study, which are so to bee vnderstood that they yeeld excuse from Personall Seruices onely and not from Prediall.

Those things that yéeld excuse in part, from Personall seruices are these; the Renting of the Princes custome, the basenes of the persons state, not fit to beare any Office of credit, infamie, banishment, an amotion from a mans place and degrée, feminine sex, which are to vndergoe such Offi­ces only, as are agréeable to their sex. Imbassages imposed vpon any by the Prince and his Councell, which hath im­munitie also of two yeares after their returne, if the Im­bassage were into places becond the sea, or into any far coun­try, not if it were into any Country néere at hand. Skill in any Manuel Arte or Mysteries, to the intent that they may haue both time to learne their Arts, and so become the Skil­fuller in the same, and also haue more alacritie to teach o­thers in their Misterie. That that care be had, that such are chosen to office, that they be of the worthier sort for their ver­tue and place, and the richest for their state: that no man be chosen to office for enuie, and if any be, and the same be pro­ued, he that did chuse him thereto is to be fined, and to pay the expences of the suite, vnlesse he which is chosen die with­in short time after the choise, then his successors are not bound thereto. Further, men are excused, if being in one Office, they are chosen vnto another, to the intent they may the better execute and performe that office they haue in hand: Such as are remembrancers, which make Bookes of what is due to the Exchequer, and what is brought in, Auditors, Receiuers, Tellers, Granarers, Weighers, such as weigh & try such gold as is brought and paid into the Exchequer; Collectors, that is, such as gather vp the gold that is due in the Prouinces to the Exchequer, and send the same ouer [Page 38] into the Exchequer, who are in no case to hold the same lon­ger in their hands than the Law alloweth them, much lesse to turne the same to their owne vse, without great offence to the Prince and common wealth: the like is for Crowne gold, that is, of such gold that is put in Crownes, and offered to the Prince vpon any publicke gratulation, or any exploite that hath béene happily atchieued.

Iustices of Peace, which are distributed by countries, for the more quiet and peaceable gouernment of the same, whose care was to séeke out théeues and malefactors, and to foresée that the Country people did make no mutinie, by reason of the Taxes and Subsidies that were leuied vpon them: that for gold, there might bee paid siluer, and againe, siluer for gold into the Exchequer, so that the value thereof were made equall. Vsurers, although they haue no possessions, yet they are no lesse bound to all patrimoniall or predial char­ges, than if themselues had Lands and Hereditaments, al­though, for their infamie, they are excluded from all personal charges that are of credit.

The Eleuenth Booke procéedeth in the enumeration of other vocations, that are exempted from personall seruices of the common wealth, besides those that haue bin named in the tenth Booke: as masters of ships and Mariners, which serued to bring in any Marchandise or prouision for the Princes houshold, out of forreine Countries into the Princes storehouse; yea, although they were priuat mens ships, which were imployed to that seruice, so that if a pri­uat mans ship were laden with any publicke prouision, there could not any other priuat burthen bee imposed vpon him: for that, if the ship perish by shipwrack by reason of the pri­uat burthen that is put therein aboue the publicke charge, then hee is to answere the losse thereof vnto the Exchequer, otherwise than in the case of priuat men, who are themselues to beare the losse of those things which are exported or im­ported; neither can they make gaine of priuat mens ship­wracke or of those things which are cast out into the sea, to ease the lading of the ship, but are bound to restore it [Page 39] to the owner, vnder paine of confiscation of their goods by the Temporall Law, and excommunication of their persons by the Ecclesiasticall Magistrate. Adde to this, Miners or Metallers, and the gouernours of the same; gatherers of Muskels and other like shell fish, with whose bloud either Purple is made, or out of which Pearles are taken: which colour Princes onely might vse, as also veluet and cloth of gold, neither was it lawfull for any man (vnder the degrée of the Prince) to weare the same, sauing onely women in some sort, for that such ornaments are fitter for women than men. Ioyne to these Monetaries, which serued to coyne money, Wainemen or Carmen, which with their owne cattell carried or conueyed things which belonged to the Princes Treasurie. The like priuiledge had they which made Ar­mour for the Princes Armorie, as Speares, Brest plates, Darts, and such like; or made Bridles, Girdles studded with pearle or pretious stone vnto the Court, for the Kings houshold, who onely were allowed to weare the same. Such as had the care and gouernment of any Corporations, as the Princes Bakers, Vintners, Pa­persellers, Money-changers, professors of Liberall Sci­ences, specially in Rome, and Constantinople, which af­ter the seate of the Empire was translated thither, had all the priuiledges of old Rome, sauing the Ecclesiastical prima­cie, for which notwithstanding there was long dissention be­twéene the two cities.

Next after Rome and Constantinople, Beritus the chiefe Citie of Syria, had great priuiledges, for the fa­mous Vniuersitie which was in the same, and such Pro­uinces or Countries as serued the same, or any of them with yearely prouision of Corne, Oyle, Béefe, Mutton, Porke, and such other like victuall: which prouision was to bee distributed among the poore and impotent of the Cities, and not to bee giuen to stout and valiant beggers, which are able to get their liuing with their [Page 40] owne handes, and therefore were to bee compelled to worke. The Aldermen or Gouernours of Cities, for that they are imployed in matters of greater seruices: yet none of them were to be called to any office before he had bin euen with the common wealth, if happily any of them were in debt to it; neither were they or any of them excused more than from personal seruices, but in predial dueties, they paid euery one according to his rate. But as for Enterlud-plaiers and houses of baudery, they had no exemption at all, but paid double charges to the rest. Of Husbandmen, some are seruants, as Copiholders, others are frée, as Fréeholders, which notwithstanding themselues are, as it were, bound vnto the soyle, and are rated in the Subsidie according to their Acres, and if they haue no Land, then according to the head or number of their houshold; which notwithstanding, at this day is taken away, and these, as well pay rent to the owners of the ground (wherein notwithstanding, the Land-lord cannot exact of them, or charge them aboue that which hath bin couenanted betwéene them) as Tribute, and Head­siluer to the common wealth: for the declining of which, and auoiding of necessarie seruices of the common wealth, as no man can put himselfe vnder the patronage of any Noble man, so also they cannot bee called from this seruice of the common wealth, to any other. Country men, such as were addicted to the ground they tilled, although the ground were their owne, yet could they not sell it to any man, but to him that was of the mother village wherein himselfe was. A Mother village, was that whence all the villages round a­bout were deriued. Although all such husbandmen as dwell in any village, are to pay Subsidie for such goods as they pos­sesse, or such Lands as they hold; yet one neighbour is not to be disquieted or arrested for another mans due: for that it is a thing vnlawfull to trouble one for another, or not to cesse men indifferently, according to the value of their Lands, and the worth of their goods. And therefore the Romanes in rating of matters of taxes, had first Cessers which rated [Page 41] men according to that which they thought their state to be: then had they Leuellers or Surueyors, which consi­red the rate set downe, mended it, and made it euen, easing such persons or grounds as were ouer-rated, and charging more déeply such others as were ouerlightly taxed, procuring such grounds as were wast and barren, should be brought to tyllage, and that the barren should be ioyned with the fruitfull, that by such meanes the Prince might receiue sub­sidy out of both: March grounds & such as lie in the bounds of any kingdome, serue for the maintenance of such garri­sons as are there placed for the defence of the Marches, and such as hold the said lands, are to pay an yéerely prouision or pension for the same; as also the Princes pastures, woodes, and forrests, which are let out vpon a certaine yéerely rent, eyther for a certaine time, or in fée farme for euer, which in respect they pay an ordinary payment to the Prince, eyther in money, or in prouision, are discharged from all other ordi­nary & extraordinary burthens. Publike things are those which appertaine to the Exchequer, or to the Church, which may in like sort be rented out for a season, or for euer, as the possession of the Exchequer may, so it be done to the certaine benefit of the Church, and vnder such solemnities, as in this case are required, otherwise it cannot be let out but for 30. yeares, or for thrée liues. Fée farme is when lands and tene­ments, or other hereditaments, are let out for euer vnder a certaine yearely rent, in reknowledgement of the soueraign­tie thereof, belonging still to the first Lord whereby both the right and possession passeth to the farmer in fée.

The third and last of these Bookes, treateth of the honors that the Exchequer giueth; of which the first and chiefest was the Pretorship, which anciently was a great dignitie, but after became an idle name only, & a burthen to the Se­nators, as in which at their owne charges they were to set out playes and shewes, and gaue vnto the Emperor in con­sideration of his or their glebe land, a certaine quantitie of gold called Aurum glebale, or if they had no glebe land, then offered they to the Emperor an other péece of gold, called [Page 42] Follis aurea, both which afterward were taken away. Next was the Consulship, which was not to be sought by ambi­tion, or by scatering money among the people, but by cléere suffrages and desert: After the Consulship came in place the Constable, or Master of the Soldiors, and those which were called Patricij, for that their fathers had bin Senators, whose place vnder Augustus was equall to the Consuls, although they were in no office and function of the Common wealth; & the other is not so much an administration as a dignitie, as the Senatorship aunciently was, into the which who that were admitted, were accompted as Parents to the Prince, and Fathers to their Countrey: Fourthly in place, were the Princes Chamberlaines, who were adorned with sun­dry priuiledges, and had the title of honor: Fiftly, followed the Treasurer, who was Master of all the receits and trea­sure of the Prince, publike or priuat, & of all such officers as were vnderneath him: Then the Prenotarie, chiefe notarie or scribe of the Court, who for that he had the preheminence, aboue all the Gentlemen of the papers, whom we now call Secretaries, was called Primicerius, of the Gréek word [...] which signifieth waxe, which is interpreted a waxed Table, in which aunciently they did write. After him that was first secretary, there was an other called second Secretary, and so after other Clerks of the Counsell, who were not all in one degree, but some were first, some were second, and so in order as their person, place, and time did require: Ouer which was the Master of the Rols, who now is called Chauncellor, and such as are of the Princes priuie Counsell, or assessors of his priuie consistory, wherin he hea­reth ambassages, and debateth of the greatest affaires of the state, and other waightie matters. The President or Tribune of the Scholes, where young men were trayned vp to feates of armes. The Martials or Presidents of Militarie affaires: the Phisitions of the Princes bodie, Con­stantine in olde time honored with the title of Earles, as he did the rest of his chiefe officers, but now they are without the dignitie of that title: The Earles of the Countries who [Page 43] gouerned the prouinces or shires wherof they were Earles: Professors of Law & other sciences twentie yeares together deserued by the law to be made Erles. The Porters of the Court, and the Princes watch, which watched nightly for the defence of his body, the gard or protectors of the Princes body, & their Captaine, among which were chiefe the Stan­derd bearers, as in whom the Prince reposed most trust, and vsed them chiefly in all matters of danger. Next vnto the Chauncellor, or Master of the Rolls, were the Clerks, and o­thers that serued in the Rolles, in which the decrees and re­scripts of the Prince, the Supplications of the subiect, & the orders therupon set down are recorded, laid vp, & kept, as the rols of Remembrances, of Epistles, libels, ordinances, gifts giuen by the Prince, and such like: besides such as serue the Prince, not in matters of learning, or war, or the pen, or o­ther like places aboue named, but in actions of the common wealth, and in publicke offices eyther of peace or war, and their Presidents or gouernors, among whom are Postma­sters, to whom the care of the publike course doth appertein, the Tresurer of the chamber, who hath the keeping of the pri­uie purse, and such things as come to the Prince by the way of gift, The Master of the horse, his Queries and riders, the yeoman of the Styrop and the Princes footemen, The Castillians or officers of the houshold, which were part of the Princes family, appointed for the inward serui­ces of the Prince in the Court, as his tasters, butlers, wayters, chamberers, and such other, and their gouernors, Harbingers, which vpon remoue prouide for the Princes lodgings; all which had sundry priuiledges and immu­nities, for that they were all accompted as souldiors, as also the eleuen Schooles for Henchmen, wherein sundry youthes, vnder masters appointed for that purpose were trained vp, some in learning, some other in Militarie disci­plin, that they might be made fit for the seruice of the Prince, and Common wealth, and had for their better education an annuall allowance of the Prince, and from thence when they were sufficientlie instructed, or trayned vp, were sent [Page 44] out to such seruices as they were fit for.

Of such as were attendants about the Prince, and were imploied in his seruice, the chiefest of all were the Senators, and therefore are called in the Law, the Companions of the Prince, and haue all the priuiledges that Souldiors haue: The second order was of them that were Knight riders, which eyther did, or might serue in warre: In the third rank were such as were in dignitie. All may be compelled to serue in warre, which haue neither iust excuse, nor exemption, nor haue any leaue of the Captaine to be absent, vnlesse they be Marchant men, or be indebted vnto the Common wealth, or obnoxious to the Law, for any crime they haue committed.

Vnder the title of Militarie discipline is declared, how men are to be trayned vp to the knowledge of warre, what oath is to be taken of such as are prest to be Souldiors, how they are to be distributed into bands, what vse or benefit the Common wealth hath by them, what is their office, and how they are to be mustered, or else translated from one de­grée to an other, how they are to be iudged, if they offend, what priuiledges belong vnto them, what stipend or wages is due vnto them; as allowance of Corne, and the baking of the same, into bisket, which was a kind of bread, twice baked for the better durance of it, and the carriage thereof from place to place, so often as they hapned to remoue, their liuerie or apparell, and the times of the deliuerie of the same, or mo­ney in stéed thereof, lodging and prouision of salted meat the longer to indure: how long souldiors may be absent from the campe, and who is to giue them leaue of absence, and what is the punishment of them that without iust cause be longer absent from the Army then they haue leaue; of yong souldi­ors, and of their trayning vp, of old souldiors, and of their priuiledges: Prouision for kéeping safe the Sea coast, and ordinary high wayes of the Countrie, that such as iourney may passe frée without hurt or damage: of runnagates out of the Armie, and such as conceal them, and of eyther of their punishments: of the sonnes of such officers as haue died in the warre, and of their preferment, if any be fit for it, that [Page 45] they succéed in their fathers office, or roome: Of the Sergeant Maior, the Clarke of the band, and other such officers of the Campe, and of their office, reward, and punishment: of places disposed of, for publik postes, & cariages in high beaten wayes, and other by-wayes on necessitie, and how the same and the Cattle are to be vsed, that is, that they be not driuen forward with staues or clubs, but with whips only: and that no post horse, or carriage be taken, but for publike vse of post letters; to whom they are to be graunted, and for what time: Of the Apparitors, Sergeants, Sumners, or Baylifes: of sundry great officers, and of their Scribes, and Registers, and of their trials: Of the fées of Aduocates, & of the extor­cion of Apparitors. And this is the summe of those things which are specially conteined in the Code, beside other things which it hath, common with the Digest; the knowledge whereof at this day, is not so necessary for the Ciuilian, who in this age hath little vse thereof, as it is expedient for Coun­celors of State, and such as are called to place in court, who may thereout marke many things to direct them in theyr place, as the varietie of those things which are herein hand­led doth verie well shew.

The third Volume of the Law is called the Authentikes, of the Gréek word [...], eyther because they haue autho­ritie in themselues, as procéeding from the Emperors owne mouth, or that they are originals to other writings, that are transcribed out of them.

The Authentikes therefore are a volume of new Consti­tutions, set out by Iustinian the Emperor, after the Code, and brought into the bodie of the Law vnder one Booke.

In the Authentikes, is not that order obserued in the dispo­sition of the Lawes, is eyther in the Digest, or the Code, but as occasion was offered of any doubt, wherein the Prin­ces resolution was necessarie to euery thing, so it is set downe without any other Methode or forme.

The whole Volume is deuided into 9. Collations, Con­stitutions, or Sections, and they againe into 168. Nouels, which also are distributed into certaine Chapters.

[Page 46] They were called Nouels, because they were new Lawes, compared to the Lawes of the Digest, or the Code.

Of these Constitutions, some were generall, and did con­cerne all, who had like cause of doubt; some other were priuat, and did concerne only the place or persons, they were writ for, which I will ouerpasse with silence.

Of the generall, the first title and first Nouell of the first collation is, that Heires, Feoffées, executors, administrators, and their successors, shall fulfill the will of the deceased, and within one yeare after his decease, shall pay his Legacies and bequests: and if they be once sued for it, they shall forth­with pay that which is due vpon the Will (deducting only a fourth part, which is due vnto the heire by the Law Fal­cidia) or else to lose such bequestes as themselues haue in the Will.

That it shall not be lawfull for Widowes comming to second maryages, after their first husband is dead, to se­quester one of their children from the rest, vpon whom they will bestow such things, as her first husband gaue her be­fore maryage, but that the benefit thereof shall be common to them all: Neyther that shée conuey it ouer to her second husband, or his children, and so defraud her first husbands children. And that a man in like sort suruyuing his wife, shall doe the like toward his first wiues children, as con­cerning such Dowry as the first wife brought to her hus­band.

Of Suerties and Warranties, that the Creditors shall first sue their Debtors, and take erecution against their goods, and finding them not payable, shall then take their remedie against the Suerties.

Of Monkes, that they buyld no Monasteries, but with the leaue of the Bishop, who is there with prayer to lay the first stone: And that the Bishop shall appoint such an Abbot ouer the Monkes, as in vertue, and in merit excels the rest: And besides of their habit, conuersation, professions, and change of life, and who is to succéed them in their goods and [Page 47] inheritance.

Of Bishops and Clerks, that is, that Byshops and Clerks be of good fame, of competent learning, and age, and that they be ordeyned and promoted without Symonie, or briberie, or the iniurie of the present Incumbent: And that there bée a set number of Clerkes in euery Church, least the Church and Parishioners thereby be ouer char­ged.

The second Collation treateth of the Churches state, that the lands of the Church be neyther sold, aliened, nor changed away, but vpon necessitie, or that they be let to farme for a time, or vpon other iust cause, no not with the Prince himselfe, vnlesse the change be as good, or better, than that which he receyueth from the Church: and if any man presume contrarie to this forme, to change with the Church, hée shall loose both the thing hee changed, and the thing he would haue changed for it, and both of them shall remayne in the right of the Church: And that no man gyue or change a barren peece of the ground with the Church.

That Iudges and Rulers of Prouinces be made with­out gifts: of their office, power, authoritie, and stipend, and that they sweare, they shall so sincerly and vprightly execute their office, as knowing they shall giue an accompt thereof to God and the King: which oath they shall vn­dergo before the Bishop of the place, and the chiefe men of that Prouince, whether they are sent to be Iudges or Go­uernors.

Of the Masters of Requests, and their office, which offer to the Prince suters Petitions, and report them back from the Prince vnto the Iudges.

Of wicked and incestuous Marriages, and that such as marrie within those degrees, forfeit all that they haue vnto the Exchequer, for that when they might make lawfull Marriages, they rather choose to make vnlawfull Marri­ages.

The third Collation contayneth matter against Bawdes, [Page 48] that they be not suffered in any place of the Romane Em­pire, that being once warned to forbeare their wicked pro­fession, if they offend therein againe, they die the death there­fore. If any man let any house to a bawd, knowing him to be a bawd, that he shall for fait x. li. to the Prince, and his house shall be in danger to be confiscated.

Of Maiors and Gouernors of Cities, that such be chosen that be honest people, and men of credit, and that no man of the Citie being thereto chosen, refuse the same, and that such as are therto chosen, shall swears they will procéed in euery matter, according to Law and conscience.

That there be a certaine number of Clerkes in euery Church, and that it be neyther diminished, nor increased, and therfore that there be a translation of those that abound in one Church, into an other Church that wanteth.

The precepts which Princes gaue to Rulers of Prouin­ces, were these in offect: that whereas themselues were fréely chosen thereunto, they should in due sort and order go into their Prouinces, that they should kéepe their hands pure from bribes, that they should carefully looke vnto the Reue­nues of the Exchequer, and the peace and quiet estate of the Prouince, represse outrages and rebellions, procure that causes be ended with all indifferency, and ordinary charges: to foresée that neyther themselues, nor any of their officers, or vnderministers, doe iniurie to the people, least those that should help them, doe hurt them: To prouide that the people want not necessarie sustenance, and kéepe the walls of the Citie in reparation: that they punish offences according to the Law, without respect to any mans priuiledge, neyther admit any excuse in the examining or correcting of the same, saue innocency only: that they kéepe their Officers in order: that they admit to their Counsell such as are good men, and are milde towards such as are good, and sharpe towards such as are euill: that they afford not Protections to euery man, neyther to any one longer than it is fit and conuenient it should be: That where they remoue, they vex not the Countrey men with more carryages then is néedfull: that [Page 49] they suffer Churches and other like holy places, to be a San­ctuarie to murtherers, and other such like wicked men: that they suffer not Lands to be sold without fine made to the Ex­chequer: that they regard not Letters or rescripts contrarie to Law, & against the weale publicke, vnlesse they be secon­ded: That they suffer not the Prouince to be disquieted vnder pretence of Religion, heresie, or sch sme, but if there bee any Canonicall or ordinarie thing to be done, they aduise therea­bout with the Bishop: that they do not confiscat the goods of such as are condemned: that they patronize no man vniust­ly: that no man set his Armes or Cognusance vpon another mans Lands: neither that any carrie any weapon, vnlesse he be a Souldier.

What is an hereditarie porcion, and how children are to succéed: of such as deny their owne hand writing, and how they are to be punished, as well in personall as in reall acti­ons; and that such deniers after their deniall be not admit­ted to other exceptions: and the taking away the thing in controuersie from him, which denied the true owner to be Lord therof.

The fourth Collation, handleth matters of Marriage, and that marriage is made only by consent, without either lying together, or instruments of dowrie: Of women that marry againe within the yeare of mourning, which by Law in sun­dry sorts was punished for confusion of their issue: that there be an equal proportion in the Dowrie, and the Ioynture: Of Diuorce and separation of marriages, and for what causes, by consent, for impotencie, for adulterie: and that Noble women, which after the death of their first husband, being noble personages, marrie to inferiour men, shall loose the dig­nitie of their first husband, and follow the condition of their second husband.

Of Appeales, and within what time a man may appeale, and from whom, and to whom the appeale is to be made.

That none which lends money to an husbandman, take his land to morgage, and how much vsury money a man may take of an husbandman.

[Page 50] Of her that was brought to bed the eleuenth moneth, af­ter her husbands decease, and that such as are borne in the beginning of the same moneth, are to be accompted for Le­gitimat, but such as are borne in the end therof, are to bee holden for bastards.

Of instruments and their credit, and that in euery instru­ment there be protochols left, that is, signes and notes of the time, when such a contract was made, and who was notarie and witnesses to the same, and that after it bee writ­ten faire, and ingrossed in a lidger or faire mundum Booke.

The fift Collation forbiddeth the alienacion or selling a­way of the immoueable possessions of the Church, vnlesse it be done vnder certaine solemnities, and then only when the moueable goods are not sufficient to pay the debts of the Church or holy place.

Further, it prouideth that the name of the Prince for the time being, be put in all instruments, and the day and yeare when the instrument was made.

That the Oath of the deceased, as concerning the quanti­tie of his goods, so far as it toucheth the diuision of the same a­mong his children, be holden for good, but that it be in no sort preiudicial to the creditors.

Of women tumblers, & such other of like sort, which with the feates of their body, maintaine themselues, that no oath or suertie be taken of them, that they wil not leaue that kind of life, since such oath is against good maners, and is of no va­liditie in Law.

That such gifts as are giuen by priuat men to their Prince, néed no record, but are good without inrolling of them, and in like sort such things as are giuen by the Princes to priuat men.

That no person, thing, or gold of an other man be arested for another mans debt, which they now call reprisals, & that he which is hurt by such reprisals, shall recouer the foure double of the damages that he hath suffered therby, and that one man be not beaten or stricken for another.

[Page 51] That he that cals a man into law out of his Territorie, or Prouince where he dwelleth, shall enter caution, if hee ob­teine not in the suite against him, he shall pay him so much as the Iudge of the Court shall condemne him in. And that he who hath giuen his oath in Iudgemēt, shal pay the whole costs of the suite, but after shall bee admitted to prosecute the same if hee will, so that hee put in suerties to per­forme it.

That such women as are vnindowed shal haue the fourth part of their husbands substance, after his death, and in like sort the man in the womans, if the man or woman that sur­uiueth be poore.

That Churches or Religious persons may change grounds one with another: For that one priuiledged persons right ceaseth against another, that is in like sort priuiledged.

That such changes of manors, Lands, Tenements, and Hereditaments, as are made by Churchmen to the Prince, be not fained matters, and so by the Prince come to other mens hands, who haue set on the prince to make this change, and that the change be made to the Princes house only, and if the Prince, after conuey or confer, the same vpon any pri­uat man, it shall be lawfull for the Church to reenter vpon the same againe, and to reposseed it as in her former right.

That in greater Churches, Clerkes may pay something for their first admittance, but in lesser Churches it is not lawfull.

That such as build, found, or indowe Churches (which must goe before the rest) doe the same by the authoritie of the bishop; and that such as are called patrons, may present their Clarkes vnto the Bishop, but that they cannot make or or­daine Clerkes therein themselues.

That the sacred misteries or ministeries bee not done in priuate houses, but bee celebrated in publicke places, lest thereby things be done contrarie to the Catholicke and A­postolicke faith; vnlesse they call to the celebrating of the same, such Clerkes, of whose faith and conformitie there is no doubt made, or are deputed thereto by the [Page 52] good will of the Bishop, but places to pray in euery man may haue in his owne house; if any thing be done to the con­trarie, the house wherein these things are done, shall be con­fiscated, and themselues shall be punished at the discretion of the Prince.

That neither such as be dead, nor the Corse or Funerall of them be iniured by the creditors, but that they bee buried in peace.

That womens Ioyntures be not sold, or made away, no not euen with their owne consent.

In what place, number, forme, maner, and order, the prin­ces counsell is to sit, and come together.

That he that is conuented in iudgement, if he wilfully ab­sent himselfe, may be condemned after issue is ioyned.

That no man build a Chappell or Oratorie in his house, without the leaue of the bishop, and before he consecrate the place by praier, and set vp the Crosse there, and make Procession in the place; and that before he builde it he allot out lands necessarie for the maintenance of the same, & those that shall attend on Gods seruice in the place: and that Bi­shops be not non-residents in their Churches.

That all obey the Princes Iudges, whether the cause bee Ciuill or Criminall they iudge in, and that the causes be ex­amined before them without respect of persons, and in what sort the Processe is to be framed against such as be present, and how against those that be absent.

The sixt Collation, sheweth by what means children ille­gitimate, may be made legitimat, that is, either by the Prin­ces dispensation, or by the fathers Testament, or by making instruments of marriage betwéene the Mother and Fa­ther of the children, so that the Mother die not before the perfecting of them, or that she liue riotously with other men, and so make her selfe vnworthie to be a wife.

That Noble personages marry not without instruments of Dowrie, and such other solemnities as are vsuall in this behalfe, that is, that they professe the same before the bishop, or minister of the place, and thrée or foure witnesses at the [Page 53] least, and that a remembrance thereof be left in writing, and kept with the Monuments of the Church; but that it shall not bee needfull for meaner persons to obserue the former solemnities.

That such as were indebted to the Testator, or they to whom the Testator was indebted, bee not left Tutors or Gardeins to their children; that if any such bee appoin­ted a Tutor, a Curator bee ioyned to him to haue an ouer­sight of his dealing: that Tutors or Curators are not bound by Law to let out the Minors money, but if they do, the in­terest shall be the Minors; and the Tutor shall haue euery yeare two moneths to find out sufficient men, to whom hee may let the money out to hyer, for that it is let out at his pe­rill: that if the Minors state be great, so that there will bee a yearely profit aboue his finding, the Tutor shall lay vp the residue for a stock against he comes to age, or buy land ther­with, if he can find out a good bargaine, and a sure title: but if the childs portion be small, so that it will not find him, then the Tutor or Curator shall dispose of the Minors state as he would dispose of his owne, to which also hee is bound by oath.

How such instruments are inrolled before Iudges, as concerning matters of borrowing and lending and such like, may haue credit: how men may safely bargaine either with writing or without writing, if themselues be ignorant men; and of the comparison of Letters, and what credit there is to be giuen to an instrument, when the writings and witnesses doe varie among themselues.

Of vnchaste people, and such as Riot against nature, whose punishment is death.

Of such as dispitefully, on euery light trifle, sweare by God, and blaspheme his holy name, against whom also is prouided the sentence of death.

That the Iustices of Peace, or other officers to that pur­pose appointed, speedily dispatch the businesse of those which are of their Iurisdiction: that such as come as strangers and forrainers out of other contries, hauing no iust cause of their [Page 54] comming, they send backe againe with their substance, to such places as they came fro; but if they be idle vagabonds and Rogues, or other like valiant beggers, they either driue them out of the place, or compell them to labour: yet euer­more hauing regard to prouide for such as are honest, poore, old, sick, or impotent.

That Clerkes bee first conuented before their Ordinarie, and that the Ordinarie do speedily end the matter, that they may not be long absent from their benefices: and that they be not drawne before temporall Iudges, vnlesse the nature of the cause doe so require it, as that it be a méere Ciuile cause, or a criminal cause, belonging wholy to the Temporal court; wherein, if a Clerke shall bee found guiltie, he shall first bee depriued from his ministerie, and then shall bee deliuered o­uer into the Seculer hands: but if the crime bee solely Ecclesiasticall, the Bishop alone shall take knowledge thereof, and punish it according as the Canons doe require.

That where one dieth without issue, leauing behind him brethren of the whole bloud, and brethren of the halfe bloud; the brethren of the whole bloud haue the preheminence in the lands and goods of the deceased, before the brethren of the halfe bloud, whether they be of the fathers side, or the mo­thers side.

That no man make Armour, or sell it, without the princes leaue, vnlesse they bee kniues or other such like small weapons.

That proofe by witnesses was deuised to that end, that the truth should not be concealed; and yet all are not fit to be witnesses, but such alone as are of honest name and fame, and are without all supition of loue, hatred, or corrup­tion; and that their dispositions bee put in writing, that after the witnesses bee published, and their depositions bee knowne, there bee no more production of witnesses, vnlesse the partie sweare those proofes, came a new vnto his knowledge.

If Parents giue profusely to one of their children, the [Page 55] other notwithstanding, shall haue their lawfull porcions, vnlesse they be proued to be vnkinde towards their parents.

That women, albeit they be debtors or creditors, may be Tutors or Curators to their children; and that there is not an oath to be exacted of them that they wil not marrie again, so that they renounce their priuiledge graunted vnto them per Senatus consultū Velleian̄, and performe al other things, as other Tutors doe.

That Gouernours of Prouinces are not to leaue their charges before they are called from thence by the Prince, o­therwise they incurre the danger of Treason.

That womens Dowries haue a priuiledge before all other kinds of debt; that what Dowrie a woman had in her first marriage, she shall haue the same in her second marriage, nei­ther shall it be lawfull for her father to diminish it, if it return againe vnto his hand.

That a man shal not haue the propertie of his wiues dow­rie, neither a woman the propertie of that which is giuen her before marriage, but the propertie of either of them shal come vnto their children, yea though they marrie not againe.

Wils or Testaments made in the behoofe of children stand good, howsoeuer imperfect otherwise they are, but they are not auaileable for strāgers (but strangers are they which are not children) neither mattereth it whether the Will or Te­stament be writ by the fathers hand only, or by some other body by his appointment; & as the father deuideth the goods among the children, so they are to haue their parts.

Of Hereticks, and that such are Hereticks which do refuse to receiue the holy Communion at the ministers hand in the Catholick Church: that Hereticks are not to be admitted to roomes and places of Honor, and that women Hereticks may not haue such priuiledge as other women haue in their Dowries.

That is called Mariners vsury that is wont to be lent to Mariners or Marchant men, specially such as trade by sea, which kind of lending, y^e law calleth passage money, in which kind of vsury, a man cannot go beyond the 100. part.

[Page 56] That Churches inioy a 100. yards prescription.

That such things as are litigious, during the controuersie, are not to be sold away. A Litigious thing, is that whih is in suite betwéene the plaintife and defendant.

That while the suite dependeth, there bee no Letters or Edict procured from the Prince concerning the cause in question, but that the cause be decided according to the gene­rall Lawes in vse.

That in Diuorces, the children be brought vp with the in­nocent partie, but at the charges of the nocent, and that Diuorces bee not admitted, but vpon causes in Law expressed.

That no woman, whose husband is in warfare, or other­wise absent, shall marry againe, before she haue certaine in­telligence of the death of her former husband, either from the Captaine vnder whom he serued, or from the gouernour of the place where he died; and if any woman marrie againe without such certain intelligence, how long soeuer otherwise her husband be absent from her, both she (and he who married her) shall be punished as adulterers, and if her former hus­band after such marriage, retorne back againe, she shall re­turne againe to her former husband, if hee will receiue her, otherwise she shall liue apart from them both.

If any man beat his wife, for any other cause, than for which he may be iustly seuered or diuorced from her, hee shall for such iniurie be punished.

If any man conceiue a iealousie against his wife, as that she vseth any other man more familiarly then is méete shee should, let him thrée seuerall times admonish him thereof, be­fore thrée honest and substanciall men, and if after such ad­monition he be found to commune with her, let him be accu­sed of adultery before such Iudge, who hath authoritie to cor­rect such offences.

The ninth and last Collation containeth matter of suc­cession in goods, that as long as there be any descendent, ei­ther Male or Female, so long neither any ascendent, or any collaterall can succeed, and that if there be no discendent, then [Page 57] the ascendent be preferred, before the collaterall, vnlesse they be brethren or sisters of the whole blood, who are to succéed together with the ascendent; but in ascendents, those are first called which are in the next degrée to the deceased, then after those which are in a more remote degrée: that in colla­terals all be equally admitted, which are in the same degrée, and of the same Parents, whether they be male or female.

That the lands of any Church, Hospitall, or other like Religious place, be not sold, aliened, or changed, vnlesse it be to the Princes house, or to, or with an other like Religious place; and that in equall goodnesse & quantitie, or that it be for the redemption of Prysoners: and that they be not let out to any priuat man more than for 30. yeares, or 3. liues, vnlesse eyther the houses be so ruynated, that they cannot be repayred without great charges of the Church, or other reli­gious houses, or that it be ouercharged with any debts or dueties belonging to the Exchequer, and thereby there com­meth small reuenue to the Church, or Religious place there­out; in euery of which cases it is lawfull to let out the same for euer, reseruing a yearely competent rent, & other acknow­ledgements of other souerainties therein.

That the holie vessels of the Church be not sold away, vn­lesse it be for the ransoming of Prisoners, or that the Church be in debt; in which case, if they haue more holy vessels than are necessary for the seruice of the Church, they may sell those which are superfluous to any other Church, that née­deth them, or otherwise dispose of them at their pleasure for the benefit of the Church, or other holy place whose they are.

Where Vsurie in processe of time doth double the princi­pall, there Vsurie for the time to come doth cease, and those particuler payments which afterwards do follow are recko­ned in the principall.

What kind of men are to be chosen Bishops, such as are sound in faith, of honest life & conuersation, and are learned, that such as choose them, sweare before the choice, they shall neyther choose any for any reward, promise, friendship, or any other sinister cause whatsoeuer, but for his worthynesse [Page 58] and good parts only.

That none be ordeined by Symonie, and if there be, that both the giuer, taker, and mediator thereof be punished according to the Ecclesiasticall Lawes, and they all made vnworthie to hold or inioy any Ecclesiasticall liuing here­after.

That if any at the time of any Bishops election, obiect any thing against him that is to be elected, the election be staid, till proofe be made of that which is obiected by the aduersarie against the partie elected, so that he prooue the same within 3. Moneths; and if any procéeding be to the consecration of of the same Bishop in the meane time, it is void.

That the Bishop after he is ordeyned, may with out any danger of Law giue or consecrate his goods to the vse of the Church, where he is made Bishop, and that he may giue such fées as are due to the electors by Law or custome.

That Clerks be not compelled to vndergoe personall fun­ctions, and seruices of the common wealth, and that they bu­sie not themselues in seculer affaires, & so thereby be drawen from theyr spirituall function.

That Bishops for no matter or cause be drawen before a temporall Iudge, without the Kings speciall commaunde­ment, and if any Iudge presume to cal any without such spe­ciall warrant, the same is to loose his office, and to be bani­shed therefore.

That no Bishop absent himselfe from his Dioces with­out vrgent occasion, or that he be sent for by the Prince, and if any doe absent himselfe aboue one yeare, that he shall lack the profit of his Bishopricke, and be deposed from the same, if he retorne not againe within a competent time appointed for the same.

What manner of men are to be made Clerks, such as are learned, & are [...] good Religion, of honest life & conuersation, and are frée from suspition of incontinency: that no Minister be lesse then 35. yeares of age, and that no Deacon or Sub­deacon be vnder 25. that all Clerks and Ministers be ordey­ned fréely.

[Page 59] If any build a Church, and indow the same, that he may present a Clerk thereto; so that he be worthy to be admitted therto: but if he present an vnworthy man, then it appertai­neth to the Bishop to place a worthy man therein.

If any Clerke be conuicted to haue sworne falsely, he is to be depriued his office, and further to be punished at the dis­cretion of the Bishop.

That Clerks be conuented before their owne Bishops, and if the parties litigant stand to the B. order, the Ciuill Iudge shal put it in execution: but if they agrée not vpon the iudgement, then the Ciuill Iudge is to examine it, & eyther to confirme or infirme the B. order, & if he confirme it, then the order to stand, & if not, then the party grieued to appeal.

If the cause be criminall, and the Bishop find the party guiltie, then the Bishop is to degrade him, and after to giue him ouer to the seculer power: the like course is to be held, if the cause be first examined before the temporall Iudge, and the partie found guiltie, for then he shall be sent to the Bishop to be depriued, and after againe shall be deliuered to the seculer powers to be punished.

That Bishops be conuented before their Metropolitans.

That such as in Seruice time do abuse, or iniure the Bi­shop, or any Clerk in the Church, being at diuine Seruice, be whipt, and sent into banishment: But if they trouble thereby the diuine Seruice it selfe, they are to dye the death for the same.

That Lay men are not to say or celebrate diuine Seruice, without the presence of the Minister, and other Clerkes thereto required.

That such as goe to Law, sweare in the beginning of the suit, that they haue neyther promised, or will giue oght to the Iudge, and that vsuall fées be taken by the Aduocates Counsellers, Procters, or Attournies, & if any man take more than his ordinary fées, he shall be put from his place of pra­ctise, and forfeit the foure double of that he hath taken.

That the 4. generall Councels be holden as a Law, and that which is decréed in them.

[Page 60] That the B. of Rome hath the first place of sitting in all assemblies, and then the B. of Constantinople.

That all Clergie mens possessions be discharged from all ordinary and extraordinary payments, sauing from the re­pairing of Bridges and High wayes, where the said posses­sions do lye.

That no man buyld a Church, or holy place, without the leaue of the B. and before the Bishop there say Seruice, and set vp the signe of the Crosse.

That no man in his owne house suffer Seruice to be said, but by a Minister allowed by the Bishop, vnder paine of confiscating of the house, if it be the Lord of the house that presumeth to doe it, or banishment, if it be done by the tenant.

If any bequeath any thing to God, it is to be paied to the Church where the Testator dwelled.

If any deuise by his last Will a Chappell, or Hospitall, to be made, the Bishop is to compell the Executors to performe it within fiue yeares, after the decease of the Testator, and if the Testator name any gouernor, or poore thereto, they are to be admitted, vnlesse the Bishop shall find them vnfit for the roome.

That the Bishop sée such Legacies performed, as either are giuen for the redemption of Prisoners, or for other god­ly vses.

That Masters of Hospitals make an accompt of their charge, in such sort as Tutors doe.

That such as lust against nature, and so become brutish, receiue condigne punishment worthy their wickednesse.

That such as make Enuches, themselues be made Enu­ches, & if they escape aliue, their goods to be forfeited to the Exchequer, and themselues be imprisoned all the dayes of their life.

Such as by force steale away women, themselues, & such as are their abbetters, and helpers, are to dye therefore, and that it shall not be lawfull for her that is carried away, to marrie to him that doeth carrie her away: and that if [Page 61] her father do giue his consent to such marriage, he is to be banished: but if she marry him without her fathers consent, then is she not to take benefit by her fathers will, or any other thing that is her fathers.

These, and sundry matters of great importance, and ne­cessarie for the well gouerning of a Common wealth, are conteyned in the Authenticks, which I passe ouer with drie foote, not because they are not necessarie to bée knowen, but because I would not cloy the Reader euen with those things which are good.

All these workes are the labour of Iustinian, as either ga­thered together by him out of auncient Lawyers bookes, and such Emperors decrées, as went before him, or else were de­créed & ordeyned by himselfe, as matter & occasion offered it selfe, & the yongest of them is néere eleuen hundred yeares of age, that is within 500. yeres after Christ, or not much otherwise.

The last Tome of the Ciuill Law is the Feudes, that is the bookes of Customes & Seruices that the subiect or vassall doth to his Prince, or Lord, for such lands or fées as he hol­deth of him.

This péece of the Law, although it was not much in vse in the old Emperors dayes, yet Iustinian himselfe séemeth to acknowledge them in his Nouell constitutions, calling them [...], and those which are more carefull to séek out the beginning of them, bring them, some from the auncient Clientles or retinewes the ancient Romans before Christ his time had, as Budeus doth; some other from Alexander Seuerus time, who as Lampridius in the life of Alexander saith, gaue such lands as he won out of the Enemies hands to his Lords Marchers, and his souldiors, that they should be theirs, & their heires for euer, so they would be Souldi­ers, neyther should they come at any time to the hands of any priuat man, saying, they would more lustily serue, if they fought for their owne land; which opinion commeth next to the auncient border-grounds of the Romans, where­of there is a Title in the 11. Booke of the Code, Defundis [Page 62] Limitrophis, that is of Border-ground: Others refer it ouer to Constantine the greats time, which inacted for the benefit of his souldiors, that such Lordships & lands as before time they had their wages out of, should passe ouer vnto their heires, and be appropriated to their familie, or stocke, so that they found and mainteyned continually a certaine number of souldiors.

From whence soeuer it descended, this is certaine, that it came verie late to be a particuler volume of the Law it selfe. The compilers or gatherers together thereof were Obertus de Horto, and Giraldus Compagist, two Senators of Mil­laine, who partly out of the Ciuill Law, and partly out of the Customes of Millaine drew the same, but without forme or order.

The word it selfe is a barbarous word, but had his ori­gen notwithstanding as Isidor saith from the word Foedus, being a good Latin word, and so is to be interpreted tanquam Feodum, that is, as a thing couenanted betwéene two: Others deduce it from the word Fides, as it were in Latin Fideum, and by a more pleasant pronunciation Feudum, whereupon such as are Feudataries to other, are called in Latin Fideles, because they owe fayth and allegeance to such whose feudataries they are, who in the Lomhard ton­gue are called Vassals. Beside, Fealtie, which some call Ho­minium, by the Feudists is tearmed Homage: for the na­ture of a Feude is this, that it draweth with it fayth and homage: so that such as are feudataries, or fee men, professe themselues to owe fayth to such to whom they are in fée, and that they are his men; insomuch as when a fée man dyeth, his Heyre doth make fayth, and doth his homage to the Lord, as is well séene both in the Lord Spirituall and Temporall of this land, who both in their creation, and also in theyr succession one after an other sweare an oath, & doe their homage to their Soueraigne, and doe pay other dueties which are simbols and signes of their subiection to their soueraigne: And for others that are vnder the degrée of Barons, and yet are fée men vnto the King, and so do [Page 63] not manuell obedience vnto his Maiestie, they pay yeare­ly something in respect of theyr homage, according to the quantitie or qualitie of the fée or tenure they hold of the Prince.

A Feude in English may be called a tenure, which cau­sed Littleton when he treated of Feudes, so far forth as they are here in vse in England (Such as are all those which are called in Latin Feuda militaria, & Feuda scutiferorum, called by Iustinian [...], which are by the Lawes of the land, tearmed by the named of knights seruices, and Escuage,) to call them by the names of Tenures.

A Feude is a grant of lands, honors, or fées, made either to a man at the will of the Lord, or Soueraigne, or for the Feudataries owne life, or to him, or his heires for euer, vn­der condition, that he and his heires in case where the feude is perpetuall, doe acknowledge the gyuer and his heyres to be their Lord and Soueraigne, and shall beare faith and alleageance vnto him, and his, for the said Tenure, and shall doe such seruice to him and his for the same, as is be­twéene them couenanted, or is proper to the nature of the feude.

Of Feudes, some are Temporall, some other are Per­petuall.

Temporall feudes are those that are gyuen, eyther for terme of a mans life, or for yeares, or at the will of the Lord, for some seruice done, or to be done; such as are Annuities giuen to Lawyers for counsell, Pensions giuen to Phisiti­ons for their aduise, Stipends to any Teacher of artes and sciences, Fées for kéeping of Towers or Castles, called by Feudists Castalia, and is by Littleton called Castle ward, although by him it is taken for a state of inheritance.

Perpetuall Feudes are rights which men haue by grant from the Soueraigne, or chiefe Lord of the soyle or terri­torie, to haue, hold, vse, occupie, and inioy honors, manors, lands, tenements, or hereditaments, to him and his heires for euer, vpon condition that the said vassall or partie, his heytes and successors, doe homage and fealtie to his Lord, [Page 64] his heires and successors, for such honors, landes, or heredi­taments, and doe him eyther seruice in warre, according as it is couenanted betwéene the Lord and his vassall, or such other seruice as the nature of his tenure doth require, or if he fayle therein, shall either find some other in his roome to do the same, or else pay a certaine summe of money in liew thereof.

Although this Tenure by the first creation thereof be perpetuall, yet that the soueraignty thereof should not still remaine vnprofitable to the first Lord, the whole benefyt thereof going continually to the vassall or tenant; it is proui­ded that the Soueraigne or chiefe Lord the first yeare, the heyre or Successor of the vassall comes vnto his land, shall haue the whole reuenue of his liuelihood for that yeare, or a certeine summe of money in token of the retorne thereof vn­to the Lord, and the redemption thereof made againe by the tenant, which by the Law of the Nouels is called [...], & is well nigh the same that we call liuery, which euery heire that holdeth in Knights seruice, sueth out before he take pos­session of his land, as heire to his ancesters.

This Tenure is got eyther by Inuestiture or by Succes­sion.

Inuestiture is the same that we call Creation, and is the primier grant of a feude or tenure to any, with al rights and solemnities thereto belonging, wherein the homager, or feo­datarie for the most part vpon his knées promiseth faith and allegeance vnder a solemne oath vnto his Lord, and his suc­cessors.

Succession is whereby the eldest sonne succéedeth, the fa­ther in his inheritance, and if he faile and haue no issue, then the next brother, and so in order successiuely, and if there be no sonne, then the next heire male, and if their bée no heyre male, then the land escheats vnto the Lord. For the Lumbards, from whom the feudes first came, or at the least were chiefly deriued from them, directing all their policie as the Lacedemons did, to matters of warre, had no seminine feudes among them, but after by processe of time, there were [Page 65] created aswell Feminine feuds as Masculine feuds, inso­much as where there was no issue male to put them from it, women did succéed in the inheritance.

Of Feuds, some are regall, some not regall: Regall are those which are giuen by the prince only, neither doe belong to any inferior to giue.

Of these, some are Ecclesiasticall, as Archbishopricks, Bi­shopricks and such like: Others are Ciuile or Temporall, as Dukedomes, Earledomes, Vicounts, and Lords, who by that are distinguished from the rest of the people, that they haue the conducting of the Princes Armie at home and a­broad, if they be thereto appointed, and haue right of Peeres in making of Lawes, in matters of triall, and such other like businesses.

Not Regall are those which hold not immediatly of the Prince, but are holden of such Ecclesiasticall or Ciuile States which haue had their Honours immediatly from the Prince.

Besides of Feuds, some are Liege, others not Liege; Liege Feuds, are they in the which the vassall or feodatorie promiseth absolute fealtie or faith to his Lord, against all men without exception of the King himselfe, or any other more auncient Lord to whom besids he oweth alleagance or seruice. Of this sort there is none in this Realme of Eng­land, but such as are made to the King himselfe, as appeareth by Littleton in the title of Homage, wherein is specially excepted the faith which the Homager oweth to his Lord the King.

Feuds not Liege, are such wherin Homage is done, with speciall reseruation of his faith and alleageance to the prince and Soueraigne.

Of such as are Vassals or Liege men, some are called Val­uasores maiores; others Valuasores minores. Valuasores maiores are such as hold great places of the State vnder the Emperour or King, as are the degrées of Honour before named, and are called Péeres of the Land, which only giues Nobilitie. Valuasores minores, are those which are no Péers [Page 66] of the Land, and yet haue a preheminence aboue the people, and are, as it were, in a middle Region betwéene the people and the Nobilitie, such as are Knights, Squires, and Gentlemen.

The Feuds are lost by sundry waies, by default of issue of him to whom it was first giuen, which they call Apertura feodi; by surrender therof, which by them is termed Refuta­tio feodi; by forfaiture, and that was in two sorts, either by not doing the seruice that his tenure did require, or by com­mitting some villenous act against his Lord, as in conspiring his Soueraignes death, defiling his bed, or deflowring his daughter, or some other like act treacherous to his Lord, and vnworthy of himselfe.

And so much of the Ciuile Law, and the Bookes thereun­to pertaining. Now it followeth I doe in like order speake of the Canon Law, which is more hardly thought vpon among the people, for that the subiect thereof, in many points, is of many grosse and superstitious matters vsed in the time of Papistrie, as of the Masse, and such other like trumperie; and yet there are in it beside, many things of great wis­dome, and euen those matters of superstition themselues, being in a generalitie, well applyed to the true seruice of God, may haue a good vse and vnderstanding.

The Canon Law, hath his name of the Gréeke word Ca­non, which in English is a Rule, because it leads a man straight, neither drawes him to the one side or the other, but rather correcteth that which is out of Leuill and Lyne.

The Canon Law consisteth partly of certaine Rules, taken out of the holy Scripture, partly of the writings of the auncient fathers of the Church, partly of the ordinan­ces of general & prouincial Councels, partly of the Decrees of Popes of formerages.

Of the Canon Law, there are two principall parts, the Decrées and the Decretals.

The Decrées are Ecclesiasticall constitutions, made by the Pope and Cardinals, at no mans suite, and are either [Page 67] Rules taken out of the Scripture, or Sentences out of the auncient Fathers, or Decrées of Councels.

The Decrees were first gathered together by Ivo, Bi­shop of Carnat, about the yeare of our Lord God but afterward polished and perfected by Gratian, a monke of the order of Saint Bennets, in the yeare 1149. and allowed by Eugenius the Pope, whose Confessor hee was, to bee read in Schooles, and to bee alledged for Law.

Of all the seuerall volumes of the Canon Law, the De­crées are the auncientest, as hauing their beginning from the time of Constantine the great, the first Christian Em­perour of Rome, who first gaue leaue to the Christians fréely to assemble themselues together, and to make whol­some lawes for the well gouernment of the Church.

The Decrées are diuided into thrée parts, wherof the first teacheth of the origen and beginning of the Canon law, and describeth and setteth out the rights, dignities, degrées of ec­clesiasticall persons, and the manner of their elections, ordi­nations, and offices, and standeth of one hundred and ten distinctions.

The second part setteth out the causes, questions, and answeres of this Law, which are in number 36. and are full of great varietie, wisdom, and delight.

The third and last part, containeth matter of consecra­tion of all sacred things, as of Churches, bread and wine in the Sacrament, what daies and Feasts the Primi­tiue Church vsed for the receiuing thereof, of the mini­string of the Sacraments in Baptisme, and the vse of im­position of hands, all which is set out vnder fiue di­stinctions.

The Decretals are Canonicall Epistles, written either by the Pope alone, or by the Pope and Cardinals, at the in­stance or suite of some one or more for the ordering and de­termining of some matter in controuersie, and haue the au­thoritie of a law in themselues.

Of the Decretals there bee thrée volumes, according [Page 68] to the number of the authors which did deuise and publish them.

The first volume of the Decretals was gathered together by Ramundus Barcinius, Chaplein to Gregory the ninth, at his the said Gregories commaundement about the yeare 1231. and published by him to be read in scholes, and vsed for Law in all Ecclesiasticall Courts.

The sext is the worke of Boniface the eight, methoded by him about the yeare 1298. by which, as hee added something to the ordinance of his predecessors, so hee tooke away many things that were superfluous and contrarie to themselues, and retained the rest.

The third volume of the Decretals, are called the Clemen­tines, because they were made by Pope Clement the fift of that name, and published by him in the Councell of Vienna about the yeare of grace 1308.

To these may be added the Extrauagants of Iohn the xxij. and some other Bishops of Rome, whose authors are not knowne, and are as Nouell constitutions vnto the rest.

Euery of these former volumes, are diuided into fiue Bookes, and containe, in a manner, one and the same titles, whereof the first in euery of them, is the title of the blessed Trinitie, and of the Catholicke faith, wherein is set downe by euery of them a particuler beliefe, diuers in words, but all one in substance, with the auncient Symbols, or beliefe of the old Orthodox, or Catholicke Church.

Secondly, there commeth in place the treatie of Rescripts, Constitutions and Customes, and the authoritie of them, and when they are to be taken for Law: after followeth the meanes whereby the greater gouernours of the Church, as namely, Archbishops, Bishops, and such like come vnto their roome, which was in two sorts, according as the parties place or degrée was when he was called vnto the roome, as if he were vnder the degrée of a Bishop, and was called to bee Bishop, or being a Bishop, was called to be an Archbishop, or to be the Pope himselfe, he was thereto to bee elected by the Deane and Chapiter of the Church where he was to bee [Page 69] Bishop, or by the Colledge of the Cardinals in the Pope­dome; but if he were alreadie a Bishop or an Archbishop, and were to be preferred vnto any other Bishopricke or Archbi­shoprick, then was he to be required by the church, he was desired [...]nto and not elected, which in the Law was called Postulation; after Postulation followed translation by the superior, to the Sea to the which he was postulated or requi­red; after Election followed Corfirmation and Consecration of him that was elected, which both were to be done in a time limited by the Canons, otherwise the partie elected, lost his right therein.

Bishops and other beneficed men, sundry times vpon sun­dry occasions resigne their benefices, and therefore is set downe what a renunciation or resignation is, who is to re­nounce, and into whose hands and vpon what causes a man may renounce his benefice or bishopricke: and be­cause vnder-Ministers are oftentimes negligent in their Cure, that the people, in the meane time may not bee de­frauded of Diuine Seruice, the Sacraments, and the food of the word of God; it is prouided that the Bishop shal supply the negligence of such Ministers as are vnderneath him in his Iurisdiction: besides, because holy orders are not to be giuen but by imposition of hands, with prayer and fast­ing, foure fit times in the yeare, are for the same lymitted, where also is set downe how they are to bee qualified which are to be ordered, what triall or examination is to bee had of them, what age they are to bee of, and what gifts of body or mind they are to be indowed withall: what Sacraments may be reiterated, what not: that Ministers sons are not to succéed their fathers in those benefices wherein their fathers immediatly before were Pastors or gouernours, lest happily thereby there might be claimed a succession or inheritance in the same: that no bondmen or accomptants, men distorted or deformed in body, bigamists or twice married men, be ad­mitted to holy orders.

Of wandering Clarkes, and how that they are not to be admitted to minister in another Diocesse, then where they [Page 70] are ordered without the Dimissarie Letters of the bishop vn­der whom they were ordered.

Of Archdeacons, Archpriests, Sacrists, vicars, what they are, and wherin their particular offices do consist.

Of the office of Iudges in generall, and their power, whether they bee Delegats, Legats a latere, or Iudges ordinarie.

Of difference in Iurisdiction betwéene Ministers & Mi­nisters, and what obedience the inferior Ministers are to yéeld vnto their superiors.

Of Truce and Peace, which Ecclesiastical Iudges are to procure, that truces be kept from Saturday in the euening, vntill Monday in the morning, and that there be no fighting from the first day of the Aduent, vntill the eight day after Twelfe tide, and that warre likewise doe cease, from the beginning of Lent, vntill the eight day after Easter, vnder paine of Excommunication, against him that presumeth to doe the contrarie; and that in time of war, neither Priests, Clarkes, Marchant men, country men, either going to the field or comming from the field, or being in the field, or the cattell with which they plough, or the seed with which they sow, be hurt or violated.

Iudges, before men enter into the dangerous euents of Law, are to persuad the parties litigant by priuat couenants and agréement to compound the controuersie betwéen them, wherein if they preuaile not, then the parties are to prouide themselues of Aduocats, Proctors, or Sindects according as they are priuat men or bodies politicke to furnish their cause, and direct them in procéeding.

If any Church hath bin hurt in any contract of bargaine or sale, or in demising of any Lease, or by the Proctors negli­gence, it is to be restored againe into her former state, to al­ledge and plead that for it selfe, which is agréeable to Law and conscience. The like grace is to be graunted to all other Litigants whatsoeuer, who haue by feare or violence, or a­ny other like vniust cause, béene hindered from the prosecu­tion of their right.

[Page 71] If any, séeing a suite like to be commenced against him, do either appeale before he be serued with Processe, or alienat away the thing whereupon the suite was like to grow, he is to bee compeld to hold plee of the same cause, before the Iudge from whom he did appeale, and to answere his aduer­sarie, as though still he were owner of the thing he did in po­licie sell or alienat away.

Many times, things which otherwise can haue no spéedy end by Law, are compounded by arbiterment. Arbitrators ought to be od in number, that if they disagrée, that which is concluded by the greater part may preuaile. An arbiter­ment is a power giuen by the parties Litigant to some, to heare and determine some matter in suite betwéene them, & to pronounce vpon the same, to which they are to bind them­selues vnder a penaltie to stand.

The first Booke, hauing set out the first obiect of the Law, which standeth in the persons who make vp the Iudgemēt, as in the person of the Iudge himselfe, the Aduocats, Proc­tors and Clients, there followeth in the second booke, the se­cond obiect of the same, which is the Iudgemēts themselues, which are to be commenced by a Citation, & that in a compe­tent court fit for the same, by a Libell offered vp in the court by the plaintife, to the Iudge, which is to containe the sum of that which is required in Iudgemēt; where, if the defendant do againe reconuent the plaintife, he is to answere, albeit the defendant be not of that Iurisdiction: the libel being admit­ted, the defendant is to ioyne issue, and yet before either of them enter any further into the cause, that there may be faire and sincere dealing in the same, & that all suspition of maliti­ous dealing therin may be taken away, each of them are to take an oath, the Plaintife, that hee doth not of any malice prosecute the suite against the Defendant, or the Defendant of any malice maintain the suit against the plaintife, but that they verily beléeue their cause is good, and that they hope they shall be able to prooue, the one his libell, the other his exceptions, if he shall put in any into the Court. The cause being begun, delaies are often graunted, if either there [Page 72] come any Holyday betwéene, or any other like iust cause bee offered, as for producing of witnesses and such like: If there be no iust cause of delay, then the Iudge is to goe on in the due course of Law, (prouided alwaies that more bee not demaunded by the plaintife than is due) and that the cause possessarie bee handled before the petitorie, and that hee that is spoiled, bee first and before all things restored to that thing or place whereof he was spoyled, or from which he was put fro; yea, though he haue nothing els to alledge for himselfe beside the bare spoliation it selfe. If the one side or other wilfully or deceiptfully decline Iudgement, the Iudge is to put the other in possession of that which is in de­maund, or at the lest, to sequester the fruits and possessions of that which is in controuersie; but if both parties appeare and ioyne issue affirmatiuely, then is it but a question of Law, and not a fact, neither doth there remaine ought els to bee done by the Iudge, but that hee giue sentence against him that hath confessed it, and put his sentence in execucion. But if issue be ioyned negatiuely, then is the plaintife to proue his Libell, so far as it consists in fact, by witnesses which are to be compelled by Law if they will not come, or appeare vo­luntarily, by publicke and priuat instruments, by presump­tions, by coniectures, by oath; which being done, the Defen­dant in like sort is to bee admitted to proue his exceptions, and cleere his prescription if hee bee able to alledge any, in which hee is Plaintife, neither is hee bound thereto, before the Plaintife haue perfected and prooued his owne right.

After proofes are brought on either side, and the same tho­roughly disputed on by the Aduocats, the Iudge is to giue sentence, which he is to frame according to the Libell and proofes formerly deduced in the cause. The sentence be­ing giuen, Execution is to bee awarded, vnlesse there be an appeale made from it within ten daies by the Law, but fiftéene daies by the Statute of this Land, from the time the partie, against whom sentence was giuen, had knowledge thereof, or vnlesse it be appealed incontinently at the acts, [Page 73] and in writing before a publike notary, or at the lest the par­tie against whom the sentence proceeded, within due time, take his iourney toward the higher Iudge to prosecute the same, by whom the former sentence is eyther confirmed or infirmed, in the second instance.

The third booke conteyneth such Ciuile matters, and cau­ses as are liable to the Ecclesiasticall Courts, as the honest life or conuersation of Clerks, and theyr comely comport­ment in all their demeanor, with what women they are to cohabit, and dwell with, whereby they may be frée from all suspition of ill life, and with whom not, which of them may be maried by the law of the Canons, and which not, in what cases they may be allowed to be non resident, and in what not, and how such as are non residents may be called home vnto their cure, and if they retorne not vpon processe sent out against them, how they are to be punished, namely by depriuation or sequestration of the fruits and commodi­ties of their benefice.

Prebends and dignities are preferments for Clerkes, but not for such as are idle or absent from the same without iust cause: but if any Clerk or Minister be sicke, and his disease be curable he is to receiue the benefit of his prebend or digni­tie in his absence, as though he were present; but if it be con­tagious, or vncurable, then is he to be put from the exercise of his office, and a helper or coadiutor to be ioyned vnto him, and they both to be mayntained of his stipend.

Prebends or dignities are to be got by institution, which are to be giuen by the Bishop, or his Chauncelor, or such other as haue Episcopall iurisdiction, without which, nei­ther any benefice is lawfully gotten, or can lawfully be re­teyned. Benefices not void, ought neyther to be gran­ted, neyther to be promised; but such as are void ought to be granted wythin sixe monthes after knowledge of the voy­dance thereof, otherwise the grant of them diuolueth & com­meth vnto the superiour: he that causeth himselfe to be insti­tuted into a benefice, the Incumbent therof being aliue, him­selfe is to be deposed from his orders.

[Page 74] While any Benefice, or Bishopricke is void, nothing is to be changed or innouated in it; and such gifts, sales, or changes of Ecclesiastical things, as are made by the Bishop, or any other like Prelate, wythout the consent of the Cha­piter, are void in Law: and such Benefices as do become void, are to be bestowed without any impayring or dimi­nution of the same.

In what case the goods and possessions of the Church may be alienated, and in what not, and that such things as are alienated, be alienated by the greater part of the Chapiter, otherwise the alienation is void: What goods of the Church may be lent, what sold, what bought, what changed, what demised, or let to lease, what Morgaged, or let to pawne. After these follow Tractats of last Wils and Testaments, of succession by way of Intestate, of Burials, of Tythes, first Fruits and Offerings: Of Monkes, and their state in sundry sorts, of the right of Patronage, of Synodals and Procurations, of consecration of Churches, of Celebration of Diuine seruice, and the Eucharist, of Baptisme, and the effect thereof, of a Priest not baptized, of Fasting, Purifi­cation of women, and other like Ceremonies pertayning to Ecclesiasticall discipline: Of buylding and repayring Chur­ches, and of their Church-yards, and the immunitie that belongs to them both, and of sundry other things in like sort pertayning to the Church. That Clerks and other Ecclesi­asticall men trouble not themselues about Ciuile matters, contrarie to their office and profession.

The fourth Booke disposeth of matters of Espousals and Matrimonie, & sheweth what words make espousals, what Matrimonie, of the Betrothing of such as are vnder age, of clandestine Espousals and Contracts, and of what accompt they are to be had of in the Church, and how they may be made good: Of her that hath betrothed her selfe to two men, whose wife shee shall be, what conditions may be put in Es­pousals, and what not, what Clerks or Votaries may marry, and what not: of him that hath married her, with whom before he hath committed Adulterie, and whether the same [Page 75] second Matrimonie be good, whereupon the resolution of the Law is, that if the women knew not that he had an other wife, he cannot leaue her, his fi [...]st [...] under pretence he had an other wi [...]e [...] that if shee knew of it, and did ioyne with him [...] [...] ­king away his wife, he cannot [...] her, [...] he were seperated from the other, as [...]: Whether Leprose men & other which are [...] with like contagious diseases may marry, and whether being mar­ried, the marriage may not be dissolued vpon this point: Of kindred spiritual or legall, and in what sort they hinder mar­riage, of him that hath knowen his owne wiues sister, or his owne cosen german, & whether this offence do break the Ma­trimony that is contracted, or do hinder the Matrimony that is to be contracted: Within what degrees of consanguinitie or affinitie a man may marrie: Of such as are cold of Na­ture, or inchanted by Sorcery, whether they may marrie; The like respect is of Women, who are vnfit for men: Of such as marrie against the Interdict or prohibition of the Church, and what penalty they incur: What Children be held legitimat: who they be that may be accusers or witnes­ses in cases of dissolution of Marriages betweene man and wife: Of Diuorces betwéene man and wife, which are cal­led of the diuersitie of mindes that are then betweene them, for that one seeketh to go apart from the other, and in what cases diuorces are allowed, and how many kinds there be of them: of gifts betweene man & wife, what securitie they haue in Law, and that the Dowrie after the diuorce be resto­red to the woman, so that it be not in case of Adultery, and other such like filthynesse: Of second Marriages, in what cases they are to be permitted, in what not.

The fifth Booke treateth of such Criminall matters as are handled in Ecclesiasticall Courts, wherein the proceeding is eyther by accusation, whereto the Accuser doth subscribe his name, because it tendeth to punishment: or else by denunci­ation, whereto the Informer doth not subscribe his name, because it tendeth only to the amendment of the party: or by [Page 76] Inquisition, which for the most part is not vsed, but vpon fame precedent, albeit sometimes it be without fame: if once the fame be proued, then may inquirie be had of the trueth of the fact, but yet without malice or slaunder. The Cri­minall matters which are prosecuted in the Ecclesiasticall Courts, and censured by Canonicall punishments, are Sy­monie, and selling of Ecclesiasticall graces and Benefices; wherupon Prelates are forbyd to let out their Iurisdictions vnder an annuall rent, and Masters and Preachers to teach for money. The punishment of Iewes and Saracens, and their seruants, that is, if a Iew haue a seruant that desi­reth to be a Christian, the Iew shall be compeld to sell him to the Christian for xij. pence: That it shall not be lawfull for them to take any Christian to be their seruant: that they may repaire their old Synagogues, but not build new: that it shall not be lawfull for them vpon good Friday, to open either their dores, or windowes: that their wiues neither haue Christian Nurces, nor themselues be nurces to Chri­stian women: that they weare diuers apparell from the Christians, whereby they may be knowen, and other igno­minies of like sort. Who be Heretickes, & what be their pu­nishments: who be Schismatickes, & what be their punish­ments. Of Apostataes, Anabaptists, & their punishments: of those that kill their owne Children, & their punishments: of such as lay out yong children, and other féeble persons to other mens pitie, which themselues haue not, and how they are to be punished: of voluntarie or casual murders: of Tilts, Barriers, & Tornament: of Clerkes that fight in combat: of Archers that fight against Christians: of Whoredome and adultery, and how they are to be punnished: of such as rauish women, and theyr punishment: of Théeues and Robbers: of vsury and the payne thereof: of deceipt and fals­hood: of Sorcery: of collusion and Cosonage, and the reuea­ling of the same: of Childrens offences and that they are not to be punished with the like seueritie as mens offences are: of Clerks hunters, or hawkers, who if they often times vse and sport themselues therein, if they be Bishops, they are to [Page 77] be suspended, from the Communion thrée moneths, if Mini­sters or Priests two, but if he be a Deacon, he is to be suspen­ded from his office: If a Clerk often times strike other men, and being admonished to forbeare such kind of violence, doe neuerthelesse continue in his folly, he is to be deposed: If a Bishop cause any man rigorously to be whipt, he is to be sus­pended from saying seruice two monethes: Such as speake ill of Princes, and other like great persons spirituall or tem­porall, are to be punished, so that other by their example may take héed to speake ill, specially such as blaspheme the Maiestie of the almighty God: If Clerks excommunicated, deposed, or interdicted, in that they came to the highest or­der without passing thorough the inferior orders, or that they came to the same order couenously, and deceiptfully, or being not ordered at all, or at the lest not ordered law­fully, dare take vpon them eyther to Minister the holy Sa­craments, or to say diuine Seruice, are to be deposed from their office and from their benefice, and neuer after to be or­dered: Prelats are not to gréeue their subiects eyther with rash suspension, or excommunication of their persons, or in­terdicting of their Churches, but they are to execute all those censures of the Church in iudiciall order: they are not easily to suffer any man to hold two Benefices, where one may suffice, or to reteine any thing to his owne vse, in a Church wherein he hath collation, or subiection, and that he is not to bestow any benefice vpon any that is vnworthy for the same, eyther in life or doctrine, with sundry other exces­ses of Prelats in the like sort: If any begin to build a Church or Chappell to the preiudice of an other, and it be denounced vnto him by the Parson or parishioners of the other Church, that he goe no further in the said works, vntill the Law hath determined it, whether it be a nusance or not. Of the Priui­ledge of Prelates, and wherein they excéed there priuiledge: of canonical purgation which is inioyned, when as yet there is no certein proofe of the crime, but there is a common voice and fame of the fact, which is to be cléered by the oath of him who is charged by the fame, that he hath not commytted the [Page 78] fact, and the oath of his good neighbors, who sweare they be­léeue that he hath taken a true oath: Of vulgar purgation, which was performed by combate, and passing by burning fire, which is worthily reiected, for that therby the innocent many times was condemned, and God thereby did seeme to be tempted: Of iniuries and wrongs done: Of Ecclesi­asticall punishments due to offences, among which one is, That so often as one offendeth, so often he is to be punished: And that Prelates do not take reward to winke at men in their sinnes, or turne corrections into pecuniary paines vp­on gaine of fylthie lucre: Of Penances and Pardons, or re­missions: Of Excommunication, which is the greatest pu­nishment in the Ecclesiasticall iurisdiction, and who, and in what cases men are to be stroken thereby.

Of all these goodly and excellent Titles of the Ciuile and Canon Law, so full of wisdome, so full of varietie, so well seruing for euery moment, and state of the Common wealth in peace or in warre, as nothing can be more, the Professors thereof haue very little vse here within this Realme.

For first for the Ciuile Law, (beside the two Vniuersities of this land, that of Cambridge, and the other of Oxford, to whom the Kings of this Realme haue granted a larger li­bertie, in the practize of these Lawes, than to any other place of the Kingdome; for that their purpose was to haue yong men trayned vp there, in a more ripe knowledge of these professions, that when they came abroad, they might be more ready in all matters of negotiation and commerce, that the Prince or state haue need of them to deal in with forrein Na­tions, when they were thereto called; to which the Lawes of this land, serue nothing at all, by reason of the difference that is betweene their Law, which is either wholy the Ciuile Law, or for the most part grounded on it, & the Law of our Nation) a very few Titles are left to the Practisers thereof to deale in, & most of them seldom and rare in vse, as shall be hereafter shewed, so that I may well diuide all the profession here of the Ciuile Law with vs, into matters ordinarie and extraordinarie.

[Page 79] The matters of ordinarie conusance of the Ciuile Law here in this Land, are Marine matters, of which some are Ciuile, some are Criminall.

Ciuile matters are those which concerne eyther the frée vse of the Sea it selfe, or the rights that men haue to trade and traffique therupon, or the bargaines, sales, or contracts, or as it were contracts that are made or done beyond or vpon the maine Sea, or any Créeke thereof, or within asmuch space from the Sea, as the greatest winter waue runneth out, for any matter belonging to any negotiation or mer­chandize, or any other thing to the Ship or trade apper­teyning.

And first for vse of the Sea it selfe; the Law holds it to be ff ad legem Rho­dian. de I [...]ct [...]. tot. tit. common, and that euery one hath right to trade & traffique vpon the same, so that it be without the preiudice of that Prince or Land, to whom the Sea is adioyning. The like may be said for the shore it selfe, so that it be eyther for the refreshing of themselues with water, or victuall, or for the repayring of their Ships, or buying any thing necessarie thereunto, or it be either for vttering of any commoditie they haue, or buying any thing againe of the people, vpon whose land they touch: In which case it were barbarous to repell any comming in peaceable maner; albeit it may happen vpon some iealously of the state, eyther for that it hath some great forrein Enemy, whose continuall inuasion they feare, or that the Sea coasts are much infested with Pyrates, that in this case ther be made resistance, but when it is made manifest by flag of Truce, or otherwise, they are no other but well mea­ning men, they are to be intertayned with all kindnesse.

For Contracts in Marine causes, some are contracts in déed, some are as it were contracts: Contracts in déed are all bargaines and sales whatsoeuer made betwéene Mar­chant and Marchant for any commoditie, fraught, or traf­fique in the ship, or any sale or bargaine made of the Ship, or any thing thereto belonging, as Mastes, cordage, ancho­rage, victuals, or any other thing of like nature, necessarie for the imployment of the ship.

[Page 80] Those things which are as it were contracts, are those perpetuall rights, which are betwéene the Purser or Master of the Ship, and the Passengers, or betwéene one passenger and an other.

The perpetuall right which is betwéene the Purser or Master of the ship, and the Passengers is, that the Purser or Master be answerable for all such wares or goods as are brought into the ship, whether it be deliuered to himselfe, or any of his Mariners: for he ought not only to be iust and ho­nest himselfe, but also vse the ministerie of honest people a­bout him; and therefore the Master of the ship is no lesse bound for their person, than his owne. The Passengers againe are honestly and readily to pay the Master of the ship their fraught, and all such other charges of dyet, and other prouision as they haue put him to; wherein if there be any default of any side, the Law affordes an action called Exerci­toria, whereby the one or the other may be relieued.

The Master of the ship is he who hath the charge of the L. 1. ff. de ex­ercitoria action. whole anchorage and gouernment of the ship, and his office is either to let the ship to hyre, or to buy and sell Marchan­dize, or to plie fares, or to prouide tacle and furniture for the ship.

The Purser, whom the Law calleth Exercitor Nauis, is D [...]ā l. prima § 16. de exercit. act. he to whom all the profit or reuenue of the ship doth come, whether it be in his owne right, or in an others.

The Perpetuall right that is betwéene Passengers and Passengers, and Saylers and passengers is, that in case of eiectments, and casting out of goods, and other marchandize into the Sea in time of tempests, or other dangers, by rocks or quick sands, for the lightning of the ship, because it is for the common good of all that are in the ship, and the preserua­tion of the rest of the fraught of the ship, it be made vp with the common contribution of all: for good reason it is that they whose goods are saued hereby, should againe with their goods redéeme the others losse according to such proportion of goods as they haue in the ship, and the Law of the Sea allowes,

[Page 81] But in cases of Eiectments the Law of the Sea is this, (which was taken from the people of Rodes, who in oldtime, were great seafaring men, and discouerers of sundry Coun­tries, whose Rules euen to this day are holden for good a­mong al Mariners, for y^e great equitie and indifferencie that is in them) that as well the Master or Purser of the ship him­self shal contribute for the preseruation of his ship, as also the passengers for such ware as they haue in the ship, of what sort soeuer it be, albeit happily it be but of smal waight, as pearls, pretious stones, and such like; and if perchance there be some passengers in the ship, who haue no ware nor marchandize in it, yet because themselues are a burthen to the ship, esti­mate is to be made of his or their apparell, rings, and Iew­els, according to which he or they are to contribute towards the losse of such things as are cast out into the sea: neither is there any thing in the whole ship excepted, saue onely those things which are put therein to be spent, for the common good of all, as victuals, fuell, and such like; for those things are not brought in for any one priuat mans vse, but for the benefit and seruice of all: and so much the rather, for that if victuals faile, or other like necessaries want, euery one must contribute thereto, or impart of that which hee hath for his owne priuat prouision; but of mens owne bodies, vnlesse they be seruants, there is no rate to be set, because a fréemans body cannot be estéemed.

In prising, estimate is to be made as well of those things which are lost, as those things which are saued, and the price is to be set downe, not for how much they were bought, but for how much they might be sold, and that for the pre­sent, lest the contributors should be ouermuch charged. Nei­ther is it to the purpose that the goods which were lost, might haue béene sold for more, for that herein is not regard to bee had of the gaine, but of the losse. And if any thing that was throwne out were knowne to be decaied or made worse by washing with salt water, it is not to be estéemed as a new fresh thing, but the price thereof is to bee abated ac­cordingly.

[Page 82] Now the contribution is to be made in this manner, first the losse is to be set down, then the rate of those things which are saued, out of which must bee drawne an equall portion, proportionable to the quantitie of euery mans goods he hath in the ship to make vp the losse, deducting out of the loosers goods himselfe, so much as is answerable to his proportion so that hee shall neither bee made a cléere sauer, nor a cléere looser, but in a certaine quantitie ratable to his part.

But this contribution is in that case to be made, if the ship be saued; for otherwise if a wrack happen, either before the eiectment, or in the eiectment, then whatsoeuer any of the vectors or passengers catch is his owne, neither is there any regard to be had of the losse of the ship, or of the goods, vnlesse perhaps afterwards they be drawen out of the sea.

But here we are to note that neither the things that are thus eiected, leaue to be the first owners, neither become his that taks them vp; for because the first owner doth not count them for goods cast away, but still hee beares that mind to them that if he may recouer them, he will hold them as his owne goods, and in consideration of so much as afterward he shall recouer the contribution in the rest shall cease.

Neither if the Master of the ship himselfe by violence of the tempest, shall loose a Maste or a Saile, he shall be more al­lowed therefore, than a Carpenter to whom a house is let out to bee built, shall bee allowed for his axe or sawe, if he breake it.

Beside in matters of wracke there is, as it were, a contract betwéene them which haue lost their goods by shipwrack, and them vpon whose Lands the said goods are driuen, that the same be restored to them or their heires, if they come in due time to claime the same: and therfore it is precisely forbid by L. ne quid. ff. de incendio, ruina, & naufragio. the Law, that no man shall meddle with such goods as are wrecked, and such as are proued to haue stolne any thing thereout are holden for robbers; for that such goods being cast on land and recouered out of the sea, remaine still his who was the owner thereof, and descend vpon his heire, neither [Page 83] excheat vnto the King, neither to any other whom the King L. 1. lib. 11. C. de naufragiis. hath priuiledged in this behalfe. And therfore the Emperor Constantine the great, saith worthily in this case; If any ship at any time by shipwrack be driuen vnto the shore or touch at any Land let the owners haue it, and let not my Exchequer meddle with it: for what right hath my Exchequer in another mans calamitie, so that it should hunt after gaine in such a wo­full case as this is? And yet if no kindred appeare within a yeare and a day, or appearing, proue not the goods shipwrac­ked to be theirs, the goods come to the Exchequer euen by that Law: so much that law condemneth carelesnesse, which is written Vigilantibus & nō dormientibus. And with this agrée the Lawes of this Land, as taken out of these imperial laws; whereby it is ordered that such goods as are saued out of the wrack, shal be kept, by the view of the Sherife or some other chiefe Officer, and deliuered to the hands of such as are of the place where the goods were found, so that if any sue for them and proue them to be his, or to haue perished in his kéeping, they shal be restored vnto him without delay; otherwise they escheat vnto the king, or to him to whom the king hath gran­ted the same: And if any conuey away any part of the same goods contrary to the law, and bee attainted therof he shalbe awarded to prison, and make fine at the kings wil, and yeeld damages vnto the party grieued: and a wrack by the lawes of this land, is where all liuing things within the ship doe perish, but if a man, a dog, or a cat doe scape out of the ship a­liue, it is otherwise.

For matters of contract, they are either in the petito­rie, or in the Possessorie. The Petitorie is that where the propertie of any thing is challenged, this of all other suits is the hardest, because the proofe thereof is very dif­ficill: Institut. de rerū dimissione § sin­gulo [...] ac­quirendo rerū dominio. [...]deo & toto titul. C. de quadrienni [...] prescript l. bene. for albeit the propertie of things may bee got by ma­ny meanes, as wel by the law Ciuile, as by the law of Nati­ons; yet is it not a thing so easie to bee proued, for that there must concur many things to the proofe of a propertie, otherwise you shall faile in your suit, as in a case of bar­gaine and saile, that there was such a contract betwéene [Page 84] 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, that deliuerie was made thereof, otherwise the C. de acquirend. possess. l. 1. ext. c. 1. de consue­tudin. propertie passeth not, but only in some few cases, in which neither possession nor deliuerie is required. Lastly, that hee which sold it was rightfull owner of it, otherwise can he not passe ouer a thing he had no right vnto.

The Lordship or propertie of things, is bipartite; for either it is direct or full, such as men haue when they haue not on­ly the thing it selfe, whereof they are Lords or Proprieta­ries, but also the vse and commoditie therof; or els it is pro­fitable, as is the hold of Tenants and Farmers, who haue the vse, gaine, and possession of the thing, but the Lord the propertie and rent in acknowledgement of his right and So­ueraigntie.

The Possessorie is that right wherby the vse or possession of a thing is claimed, of which there be thrée sorts: for it is either in getting of the possession of that a man hath not, or in kéeping of the possession of that a man hath, or in re­couering and regaining of the possession of that which is lost.

The procéeding in all these Ciuile matters, is by Libell concluding to the action, the partie agent giuing caution to prosecute the suite, and to pay what shall be iudged against him, if he faile in the suite; the Defendant on the contraris part, securing his aduersarie by sufficient suertie, or other caution, as shall séeme méete for the present to the Iudge, that he will appeare in Iudgement, and will pay that which shall be adiudged 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 Iudgement is, which is nothing els but a course to secure the aduersarie of that which is in de­bate before the Iudge, that on what side soeuer the cause shal haue an end, the clyents may bee sure to get that which by law shall be adiudged vnto them.

And so much of those matters wherof the Ciuile law here in England vsually holdeth plée, Now of the Criminall [Page 85] matters which belong to that Court, but yet by way of Com­mission from the prince, and that is that horrible crime of Pyracie, detested of God and man, the actors wherein Tul­ly Cicer. 3. lib. off. calleth Enemies to al, and to whom neither faith nor oath is to be kept.

Piracie is called of the gréeke word [...] which is Deceptio in latine, and in English Deceipt, for that many times they pretend friendship when they intend nothing els, but rob­berie and bloudshed; or they are so termed of the word [...], that is, of their wandring vp and downe and resting in no place, but coasting hither and thither to doe mischiefe.

A Pyrat is a sea-théefe, who for to inrich himselfe, either by subtilty, or open force, setteth vpon Marchants & others, trading by sea, euer spoiling them of their loading, if they get the vpper hand, and sometimes bereauing them of their life, and sinking of their ships.

The proceeding in these Criminall matters, is by accusa­tion and information, and after by triall of twelue men v­pon the euidence, according to the lawes of this land, and the lawes of the auncient Feudes of Lombardie, where the like triall is, and from whence, it seemeth, this of ours was first deriued. But here must we note, that matters of reprisals are no Pyracies, although many times there fals out no lesse outrage in them, for spoiling and slaying of men, than doth in the other: for that Reprisals are done by the princes commis­sion, graunted to the subiect for redresse of some iniurie done to himselfe or his subiect by some other forraine Prince or Subiect, and amends hath bin required by law, and cannot be had, whereupon licence is giuen to the subiect to relieue himselfe by what way he can against the other Prince, or a­ny of his subiects, by taking so much goods of his as himselfe was indamaged; which course is held among Princes the rather to affoord Iustice where it is lawfully demaunded. Bartol l. nullus num. 2. C. de Iudaeis & Caelicolis.

And thus much of the causes whith ordinarily do belong vnto the cognisance of the Ciuile law within this land. Now it followeth that I speake somewhat of those things wherein [Page 86] the Ciuile Law dealeth incidently and by authoritie of the Prince, & is not the ordinarie obiect of the Ciuile Law, how­soeuer otherwise they cannot be handsomely dealt in, but by such as haue the skill of the Ciuile Law.

Wherof there be thrée sort, the first is matters of forraine treatie betwéene one prince and another, the second is the or­dering of martiall causes, whether they bee Ciuile or crimi­nall in an Armie, the last is the Iudgements of ensignes and Armes, and the decisions for challenges of rights of Ho­nour and precedencie, where any of them is in controuersie.

For the first, wheras all other Nations in compasse round about vs be gouerned by the Ciuile Law, and treaties are to be decided by law, both for those things which are in questi­on, and to be concluded by Law for those things which are determined by consultation and agréed vpon; who is ther­to to be chosen rather than a Ciuilian, to whom their law is knowne, as well as to themselues: and if perhaps he vnder­stand not their language: yet hee vnderstandeth that lan­guage wherein the lawes themselues are written, and is the fittest tongue for treatises betwéene Princes and Princes, because it is a common tongue to the lear­ned of all the west part of the world, and thereby euery Prince shall retaine his owne maiestie in parlying, as it were, in his owne language, and not be forced to speake in another Princes tongue, which no doubt, is a great disad­uantage to him that shall treat; for that euery Nation hath some proper Idiom not so wel discerned by the booke-speaker, as perceiued by the Natiues of the country where it is spo­ken, and wherein a stranger may easily bee deceiued.

How much forraine Princes doe esteeme of the skill of a Ciuilian in these matters, it may bee vnderstood thereby, that they neuer, for the most part send any Embassage for the treatie of any league or matter of commerce, but that one or moe of them are Ciuilians. And if the care of these things bee so great with them, surely the estimation of the same ought not to be light with vs: for by what laws their leagues and negotiations are to bee directed, by the same must [Page 87] ours bee ordered, so that for that point, one kind of lear­ning must serue for both; for that otherwise one Nation will not bee conceiued by the other what their capitulati­ons are.

Surely, such as ouer and besids their owne experience, haue the knowledge of the Ciuile law, haue herein a double helpe aboue another man that wanteth the same. First their owne vnderstanding, which for the most part is of like pro­portion as other folkes is: Then the skill of the law it selfe, which is a quintessence of wit aboue other humane learning, as being either wholy composed of the mature and deli­berate resolutions of such Emperours as then swayed the whole world, or were the domes and iudgements of such wise men, as then managed the whole world and the affaires thereof vnder them. But who, when hee seeth a sword in a scaberd, knoweth whether it will cut or not, although the forme thereof bee a presumption, that it will cut: but doe but drawe it out of the scaberd, and try the blade thereof, and then shall you see the sharpensse of it: I make no application hereof, for that my meaning by my words may be well inough knowne.

But in these matters, the wisdome of the State knowes best what is to bee done, and I onely remember what o­ther Nations doe, leauing the rest to their grauest conside­rations, who by precedents of former times, and men of experience, furnished with exoticke tongues, haue carried this part of policie verie well and safely hitherto: but now to the ordering of Martiall causes.

Martiall causes are either Ciuile or Criminall, whereof both are determinable by the Ciuile law. A Ciuile Martiall cause, is where either the Captaine or the Soldier requireth some thing that is due & withholden from him, as his stipend, his apparell, which among the Romanes was due twice a yeare, that is for Sommer apparell from the first day of A­pril to the first of September, and their Winter againe from thence to Aprill; his dyet which among the Romans was two daies hard bisket, the third softer bread, one day wine, [Page 88] one other day vineger, one day bacon and two daies mutton; his priuiledges either in cases of preferment, as to be remo­ued from one degrée to another, or in cases of immunitie, as ff. de re militari &C. eod. tit. lib. 12. ff. de priuile­gio veteranorū: & de castrensi peculio. &C. eo­dem tit. lib. 12. C. de erogatione militaris annone &C. de vest. mi­litari. to be freed from all seruile functions, and sundry other like, which a diligent reader may gather out of the titles of the Digest and Code of militarie affaires, and other like titles which accompany them.

Soldiours faults are either proper to themselues, or com­mon with others.

Those are common with others, which fall into other men, and are corrected with like ordinarie procéeding as other crimes of like nature are, as manslaughter, theft, adulterie, and such like.

Those are proper which doe properly appertaine to mili­tarie discipline, and are punished by some vnusuall or extra­ordinarie punishmēt, as are these, not to appeare at Musters: to serue vnder him he ought not to serue: to vage or wander long from the Tents, although he returne on his owne head: to forsake his Colours, or his Captaine: to leaue his stan­ding: to fly ouer to the Enemy: to vtter the councell of the Armie vnto the Enemy: to betray the Hoast: to be disobedi­ent to his Captaine, Coronell, or Lieutenant: to loose or sell his Armour, or to steale an other mans: to be negligent in forage, or prouiding of victuall: to neglect his watch: to make a mutiny, or fly first out of the field, or other like, which are deliuered in the late cited titles, of whom Arrian, who wrote the life of Alexander the great, thus saith; Euery thing is coū ­ted an offence in a Souldiour, which is done contrarie to the common discipline; as to be negligent, to be stubborne, to bee slothfull.

The punishments wherwith Soldiers are corrected, are these, either corporall punishment, or a pecuniarie mulct, or iniunction of some seruice to be done, or amotion or remouing out of their places, and sending away with shame.

By capital punishmēt is vnderstood for the most part death, or at the least beating, vnlesse happily it bee pardoned, ei­ther for the vnskilfulnesse of the soldior, or for the mutinie of [Page 89] the companie, being thereto drawen by wine and wanton­nesse, or for the miseration or pitty of the party offending.

All which a wise Iudge moderateth according to the qua­litie of the person, the quantitie of the crime, and the oppor­tunitie of the time.

The last extraordinary matter that the Ciuile Law Iudge dealeth in, is the bearing of Armes, and the ranging of euery man into his roome of honor, according as his place requires: and here first of Armes. For skill in Armory, although it be a thing now almost proper to the Herauldes of Armes, who were in olde time called Feciales, or Caduceatores, because they were messengers of war and peace, eyther to proclaime the one, or denounce the other: yet the ground thereof they haue from the Ciuile Law, so that thereby to this day they may be directed in their skill, or controled if they doe amisse.

For besides, that there are many other places in the Law, C. vt nemo pri­uaetus praedijs suis, vel alienis vela regia im­ponat. vt ne­mini liceat sine Iud. author sig­naimponere &c. De statuis & imaginib. vt nemini liceat signum salua­toris &c. De hi [...] qui po­tentiori [...] nomi­ne titulos prae­dijs suis affi­gunt. & ibi dect. ff de rerū diui­sio. l. sanctum. which touch Armory, as appeareth by the titles here quoted in the margent, Barthol. himselfe maketh a speciall tractat thereof, and diuideth the whole matter of Armes into 3. rancks, according to the diuerse sorts of men that bare them: for some are Armes of some publike dignitie and office, as the Armes of the Legat, or Proconsull, the Armes of Bishops, the Armes of the Lord Admirall; other are Armes of speciall dignities, as Armes of Kings and Princes, which no man is to beare or paint in his house or stuffe, vnlesse it be for to shew his duetie or subiection therein.

The third sort is, of those which are priuat mens Armes, of whom part haue them by the grant of the Prince, or by authoritie of those to whom the Prince hath giuen power to grant Armes to other, as hath the Earle Marshall within this Realme of England; others haue taken them by their owne authoritie, which albeit in former times they might doe, as also they might take such names as euery one did C. de ingenuis & manumiss. l. ad recognos­cenda ff. de rerū diuisione l. sanctum. like of (for names and signes in the beginning were inuen­ted, for to know and to discerne one man from an other) and as euery man might change his name, so might he change his signe, so that it were not done in fraud and deceipt: but after [Page 90] it was forbydden, both that any man should change his C. de mutatione noīs l. 1. ff. de Falsis, l. falsi nominis. name, because it was not thought it could be done with any good meaning, and that no man should beare Armes of his owne authoritie; and therefore Officers were appointed vn­der Princes, as I haue said, who should giue Armes to such as deserued well of the common wealth, eyther in warre or peace: for albeit in the beginning Armes and Colors were proper to men of warre, to auoid confusion in the hoast, & to discerne one companie from an other, yet when it came to be a matter of honour, it was challenged no lesse by men of peace, than by men of warre; for true in déed is that saying of Tully, Parua sunt foris arma nisi est consilium domi: and the Emperour speaking of the benefit, that Aduocates, and L. aduocati C. de Aduocatis diuersorū iudi­ciorum. such like bring to states and Common wealthes, sayth thus, Aduocates which breake the doubtfull fates of causes, and with the strength of their defence sundry times, aswell in publike causes as in priuat, raise vp those that are falne, and reléeue those which are wearied, doe no lesse good vnto man­kind, than if by warre and wounds they saued their parents and Countrey: for we (saith he) doe not count that they on­ly doe warre for our Empire, which doe labour with sword, shield and Target, but also our Aduocates, for indeed the Ad­uocates or Patrons of causes do warre, which by confidence of their glorious voyce doe defend the hope, life, and posteri­tie of such as be in danger: thus sayeth he; and thereupon commeth that distinction of Castrense peculium, Et quasi castrense peculium, signifying thereby, that albeit Counsel­lors to the state, Lawyers, and such like be not actuall war­riers, yet they are representiue warriers, and do no lesse serue the Common wealth than they. The Souldiour riseth betime in the morning, that he may goe forth to his exploit, the Aduocate that he may prouide for his Clyents cause, he wakes by the trumpet, the other by the cocke, he orde­reth the battaile, the other his Clyents businesse, he taketh care his tents be not taken, the other that his Clyents cause be not ouerthrowne: so then eyther of them is a war­riour, the one abroade in the field, the other at home in [Page 91] the City, Beside Bartol treateth in that place, what things are borne in Armes, eyther naturall, as beastes, birdes, fyshes, mountaynes, trées, flowres, sunne, moone, stars, or such like: or artificiall, not taken from thinges eristent, as colours, simple and mixt, deuided by halfes or quarters, or by lines, direct, crosse, ouerthwart, or such other; then how each of these is to be carried, wherein art must fol­lowe nature, that euery thing figured, be borne according to the nature of that which it doth figure, and not other­wise: and therefore as in Ensignes, flagges, or standerds, the speare or shaft goeth before, & the streamer or colours follow after, so the face of euery creature that is figured or described in the banner or hatchment, must looke vnto the shaft or speare; vnlesse a man beare two creatures, one looking toward the other, for then this obseruation hath no place, for vaine it is to coniecture where things are certein, otherwise it is the nature of the face to goe before, and the body to follow after: and the like reason is of the parts of euery creature which is likewise borne in Armor, which are distinguished by before and behinde, whose site must be such, that the head looke to the speare, otherwise would it seeme to goe back like a monster: but if the forepart alone of any crea­ture be borne in a Scuchin, as often it happeneth that men giue onely a Lion, Beare, or buls head, for their Armes, then must not the head directly looke vnto the shaft, but aside: further euery of these creatures, be so described in the coate as his vigor and generositie be best set out, whether it be a feirce or sauage beast, or a milde or gentle creature. But for colours his rule is, that the noblest colour be put in the first part of the field, howsoeuer the coate be deuided, quar­ter or pale. And of Colours the golden colour is the chiefest, as that which doth figure the Sunne, which is the fountaine of light, which is most acceptable to euery mans eye. The next is Purple or Red, which doth figure the fire, that is the highest & noblest of the foure Elements, and next the sunne it selfe in dignitie. The 3. is Blew, of the Heralds called Azure, & Ceruleus in Latin, which figureth the Ayre, which [Page 92] is a cléere and transparant body, and most capable of light, and commeth in nobility next after the fier. The 4. is white, which commeth néere to the Light, and therefore is more noble than Blacke, that draweth néere to darknesse, & there­fore is the basest of all Colours. And for mixt colours, as euery one hath more or lesse of White or Blacke, so eyther they are nobler or baser in reputation or degrée. And thus much in generall as concerning the knowledge of Armes.

Now followeth what the Ciuile Law holdeth as concer­ning Princes, and other Honorable persons, and their successions and places, which a graue Iudge of this land Nedham 37. Hen. 6. fol. 21. hath anciently acknowledged to belong vnto the Ciuile Law.

By the Ciuile Law, all power commeth from God, as the Scripture teacheth, and among powers the two greatest are the Empire, and the Priesthood; for as God hath ordey­ned the one to rule the outward man, and to bring all his actions within the compasse of reason, & so to establish Com­mon wealthes, and to order the same: So also hath he pro­uided the other for the instruction of the inward man, and the planting of Religion among men.

By the Empire, I vnderstand not only the Empire of Rome (which sometimes bare rule ouer most part of the world, at the lest ten mightie Kingdomes, which now are growen into particuler Empires and Monarchies them­selues) but also euery seuerall Kingdome, which acknow­ledgeth no other Emperor than his owne Soueraigne; for howsoeuer they differ in name and title, yet is the office it selfe all one: For euery one of them is Gods immediat Vy­car vpon earth in their owne kingdomes, for matters apper­tayning vnto Iustice. Whereupon the Ciuile Law giues them verie honorable tytles, sometimes tearming them ff. de leg. 2. l. ff. de legat. 2. l. C. 4. tit. 13. C. 1. tit. 3. l. 56. C. 1. tit. 1. l. 5. Gods vpon earth, for the great authoritie they haue ouer other men vnder God; sometimes Ministers of God, for the seruice they do God in their Common wealthes; sometimes most holie, and most Religious, for the care they ought to [Page 93] haue about Religion, and correcting of those things which are done against the feare of God; for a king ought in all C. 1. tit. 1. l. 5. things to propound the word of God before him for his rule, and to follow the doctrine of the Apostles: sometimes they are called most milde, because a king in all the course of his life, but specially in matters of punishment ought to imitate C. 5. tit. 4. l. 23. the mercie and fauour of Almightie God.

Although the Emperor or King be reckoned among his L. fin. C. de verb. signif. C. de dig­nitat. l. 8. lib. 1 [...]. Nobilitie, because he should not be puft vp with the glorie of his place, and conceiue he were of a more excellent mould than the rest, when indéed we are all of one, & the selfe same clay; yet he is both by the ordinance of God & man [...], 1. Petri ca. 2. vers. 13. (as the Apostle tearmes him) among them, that is one which is supreame Soueraigne aboue the rest, and whom they ought in all things to obey, so it be not against the Law of God, and common Iustice, for himselfe is in stéed of the whole Law; yea he is the Law it selfe, and the only inter­preter A b c. signific [...]. via ext de peni­tentijs &c. C. 6. tit. 23. l. 19 C. de testib. l. omnium. thereof, as in whose breast is the whole knowledge of the same; which albeit the Doctors do hold with a qualifi­cation, as thereby vnderstanding, not only the Princes per­son, but also his Councellors, both which put together, make vp a perfect state of a Prince: yet forasmuch as all that be­nefit of wisdome and gouernment that commeth from them vnto the Common wealth, is principally deriued from the Prince, as from the head, who hath vouchsafed to make them as it were members of his body, and so by them to de­riue the power of his gouernment, vnto all, it may be rightly said, that in the Princes breast, resteth the fulnesse of all knowledge, for the well ordering of his Common wealth; for what they sée, they sée for him, what they heare, they heare for his vse, what they vnderstand, they vnderstand to doe him seruice, and so consequently of the rest of the acti­ons of the minde and body, they obey the Prince, [...] Arist. primo Ethicorum. as their Soueraigne: so then as the Prince hath the prima­cie in the gouernment of his Common wealth, and all those which gouerne vnder him, gouerne by, and for him, so also hath he the precedency, and protoclesie, or foresitting in all [Page 94] assemblies before the rest, and such other as haue preceden­cie or foresitting, haue it by the Princes indulgencie.

Next vnto the Prince is his Quéene, who shineth by the [...]. 7. tit. 37. l. 3. in princip. beames of her King, and hath the like prerogatiue as him­selfe hath. After them comes next in place the Kings Chil­dren, because children in a sort are partakers of their Fa­thers dignitie: but yet among children there is a difference, that the male be preferd before the female, and among those which are males the eldest haue the preheminence in going, sitting, speaking, and other like matters of respect. After the kings Children follow in the next ranke Dukes, after them Marquesses, then Earles, fourthly Viconts▪ and last Barons; all which haue dignities eyther heritable, or graunted by the bountie of the Prince, whereupon theyr nobilitie is founded, and whereby they only and no other are to be accompted Péeres of the land. Among these for curtesie sake are reckoned such as descend of Noble houses, euery one according to his degrée, vntill the third genera­tion: L. 1. C. de digni­tat. lib. 12. and the daughters of these great houses, so long as they marrie to any that are in degrée of Peeres, reteyne theyr fathers dignitie, but if they marrie vnder the degrée of Péeres, then they loose theyr fathers place, and follow the degrée of their husband; which notwithstanding is in practize otherwise here among vs, but without any war­rant of Law. The like is of the Widdowes of the Péeres, L. Mulieres 13. C. de dignitat. li. 12. C. de eque­stri dignitat. l. [...]nica lib. 12. who while they liue sole, and vnmarryed, reteyne the no­bilitie of their husbands; but if they marry then they fol­low the condition of theyr second husbands, be it honora­ble, or otherwise.

Next in place after Péeres come Knights, whereof Cu­iacius Cuiacius Lib. de [...]eudis. following the moderne French Heraldrie, maketh thrée sorts; one whereof he calleth Cheualliers, the other Bannerets, the third Bachilers, but setteth downe no pro­per difference of the one from the other, and therefore I leaue that to be inquired of those, which shall be curious thereof. Among the Romanes for oght that I haue read, [...]. cu [...] te. C. de Nuptijs. there was but one order of them, and they were next in [Page 95] degrée to the Senators themselues, as with vs they are to the Péeres.

Betwéene Knights, and Doctors of the Law, hath euer bin question for precedency, since eyther of them hath but in credit in Common weales, as may appeare both by the comparison that Tully maketh betwéene Lucius Murena, a Knight of Rome, and Pub. Sulpitius a Lawyer, eyther of them standing for the Consulship, in his eloquent Oration made for Murena, and many disputes of Bartol and Bal­dus, arguing the case to and fro, which although be yet dis­putable in forreine Countries, where the Ciuile Law is in credit; yet here among vs where all preferment is taken from it, and the Professors thereof are shut vp as it were into a narrow corner of their profession, it is without con­trouersie, and the prioritie thereof indubitable: but yet this Chassa [...]e [...]s de gloria mund [...] lib. 9. is the resolution of those which are learned in this point, that in such acts as concerne learning, a Doctor is to be preferred before a Knight, but in acts that concerne Military knowledge, a Knight takes place before a Doctor: but in other acts which are neyther proper to the one, nor to the other, First are preferred such Doctors as attend about the Prince; secondly such Knights as waite vpon the Prince: thirdly such Doctors as being not about the Prince, are excellent in learning; fourthly come Knights without any place of preferment; lastly Doctors of meaner gifts and place.

Although by the Ciuile Law there bée no Gentlemen of title vnder Knights, but all the rest went vnder the name of people, yet in other common wealthes there are, and with vs be, euen in this ranke, which haue names of preheminence, whereby they are in degree aboue the rest; as with the French there are les Gentilhomes, and le Gens de ordinances, and with vs are Squiers and Gen­tlemen, all which giue Ensignes, or coat Armours, and thereby are distinguished from the meaner people: in which respect Bartol calleth them Noble, but yet of a weake nobilitie, for that it hath no further prerogatiue Bartol tractat. de Insignis. [Page 96] in it, then that it makes them differ from the baser sort of people.

Of these two sorts of Gentlemen with vs, the Squier hath the priority, who séemes by the common name we giue him in Latin, to haue had his origen, eyther for that he carired the Armour of the King, Duke, or other great personage, as we sée not only in the holie Scriptures Saul Homer. Illiad. P [...]n. lib. 35. natura [...]nstor. and Ionathan, had their Armor bearers, but in Poets and other prophane stories, Patroclus was Achilles Armour bearer, and Clitus great Alexanders: whereupon some write that [...] siue [...], which is he whom we call Armiger in Latine, is a footeman, that with a speare, shield, or head-peece, followeth an armed Knight in battaile, or rather as some other suppose, it is the footman himselfe armed in the field: howsoeuer the word be taken, this is sure, that these were men of good accompt in the old time, as those which won themselues credite out of warre, and so their estimation remained in their posteritie; and as those were in time before, so are these which are in our dayes, as discending for the most part from theyr worthy aun­cestors.

There is no dubbing or creating of these by the Princes hand, or him to whom the Prince hath giuen authoritie, as it is in the creating of the Nobilitie, and the making of Knights, but euery one whom the Captaine hath vouch­safed, that seruice, is by the seruice it selfe a Squier; and that not onely he which hath done the seruice in warre, but also such which haue done any equiualent seruice in peace, as Lieutenants, and Shirifes of Shires, and Iustices of Peace within their Countie: for euen in this as in other Promotions hath that distinction of the Law place, of Cas­trensis peculij, et quasi castrensis, wherby seruice of the Com­mon wealth at home, is leuelled and made equall with that abroade. Gentlemen haue theyr beginning either of blood, as that they are borne of worshipfull parents, or that they haue done some thing worthyly in peace or warre L. 1. C. de digni­tat. lib. 10. & 12. whereby they deserue to beare Armes, and to be accounted [Page 97] gentlemen, for he is a gentleman who is commonly so taken and reputed.

And this is the last and lowest order of them to whom the Law doth allow any challenge of precedencie.

Now it followeth that I speake some something how great personages one succéede in another in their places of honour.

And first, to begin with the Empire it selfe, as the greatest earthly dignitie vnder God, albeit in the beginning it were raised vp by no right, but by vsurpation, Iulius Caesar chan­ging the former gouernment of the State, and challenging to himselfe, the whole managing of the same; yet after it came to an orderly course, insomuch as he that had the pre­sent possession of it, disposed it to his best liking, by his last Will and Testament. So Iulius himselfe deuised it to Octa­uius his sisters son: and albeit that deuise tooke not effect, by reason of the treason that was wrought against Iulius owne person, so that Octauius was faine to recouer it by another right, euen by the death of Lepidus and Antonius his col­legues in office; yet that very Will of Iulius gaue a pretence to Octauius, who after was called Augustus (because hee did increase the Empire with many worthy victories) to stand for the inheritance of the Empire, in consideration of which title the Senate and people of Rome more easily submitted themselues vnto his gouernment. Augustus in like sort be­queathed it to Tiberius, and Tiberius to Caius: and so it came from one to another, vntill some of them by crueltie and li­centiousnesse of life, became so odious to God and man, that the people rose against them, and bereft them of that liberty, which they had prescribed in appointing of their Successors, and somewhiles themselues, and somewhiles the Soldiors made choise of whom they thought good, or by whom they thought best to be rewarded. And thus the right of Succes­sion vnto the Empire was tost vp and downe many hundred yeares betwixt Inheritance, Bequest, and Election, vntill at the last, it came vnto that establed state, as now it is in, and setled Electors of the Empire, so often as it happenned [Page 98] to be void. Succession in Kingdomes, in most part of the world, in former time hath béene, and at this day is by right of bloud, (a few onely excepted, which are Electiue, as the Kingdom of Poleland is at this day) and in Succession the eldest son taketh place before the rest; and if there be no heire male, then the eldest daughter succedeth in the kingdom, and her issue: for Kingdoms (as also succession in other digni­ties) are impartible. And yet Fraunce (to exclude Edward the third from the inheritance of the Crowne thereof, who des­cended of Isabell the sister of Charles the faire, and so was next heire male vnto the kingdom of France) alledged for thē ­selues the Law Salicke, pretending none which claimed by the woman, albeit he were the next heire male in bloud, was to succeed, as long as there were of the male line aliue, how far soeuer they were off in degrée from the last king decea­sed. But this is but a meere deuice of the French, fathered vpon some rotten Record of that part of their Nation, cal­led Salii; of whom otherwise they haue nothing memorable to speake of, as being the basest Nation among them all, of whom they report their people to haue béene compounded: but this deuise serued their turne then, whether it were an­ciently inuented, or newly coyned. But howsoeuer they op­pose themselues against womens gouernment, as Bodine Bodin lib. 6. de repub. there contriman, hath of late stretched out the strength of his wit to deuise reasons against the gouernment of that sex: certaine it is, that the Law of God hath allowed it, as it ap­peareth in the example of Debora, who being a Prophetesse gouerned Israell fortie yeares, and by her direction got the Israelites a mightie victorie ouer Sisera the captaine of the hoast of Iaben: and wee among other Nations, haue found by experience, gunaicotary or womens gouernment is no­thing so vnfortunat, as Bodine would make vs beléeue it is. For both in our late Quéene, and also in her sister, (except onely the case of Religion, wherein she followed the error of the time, and was carried way more with zeale than know­ledge, and thereby is more to bee pittied than to bee enuied) what is in their gouernment, the wisest Man-Prince in the [Page 99] world would not desire to bee in his owne Regiment? for what is either in their priuat carriages, (so you giue no eare to virulent and malitious tongues, who report surmi­ses for substances, and tales for truths) or in their publicke gouernment, (so you lay not other mens faults to their char­ges) that any man can iustly blame? For that I may passe ouer the rest of their Heroicall vertues fit for women of their State (specially the late Queene, who was péerelesse among all Quéenes that euer went before her, and vn­matchable, as I verily doe beleeue, by any that euer shall succéed her) as their magnanimitie whereby they subdued, not only their domesticall enemies, but vanquished euen their forraine foes, were their designements neuer so daun­gerous, not shewing any token of discouragement either in the treasonable attempts of the one, or in the malitious com­plotiments of the other.

What an excellent work of hers was that, that then when all her neighbour Kingdomes round about her were drunke with the cup of the fornication of the whore of Babilon, shee alone came out of Babilon, and so continued con­stantly to the end, mauger the threats of the red fierie Dra­gon, and the floods of water he cast out of his mouth after her? How excellent did she shew her selfe in those two ver­tues which doe chiefly preserue Princes States, that is, Mercie and Iudgement, the Records of her time do shew, so that I may spare to remember any by name, which happily would be not well taken.

And yet, truth it is, that mens gouernment is more agréeable to Nature than womens is, whom God in the beginning put in subiection vnder man, and who for the most part are by Nature weake in bodie, and thereby vn­able to put in execution the great affaires of a King­dom, and vnsetled in iudgement, and so hardly can de­termine that which is right, and settle themselues there­upon: yet by the numeration of certaine ill gouerning Quéens, to conclude a generalitie against all gouernment of women, is but an ill kind of arguing, for euen by the [Page 100] like reason a man might conclude against Kings, of which sort, although there hath bin many good, whom God hath v­sed as instruments to worke great good vnto people in euery kingdom, yet more of them haue bin euill, as the Stories of euery country will shew; and to abridge God of his power, that he cannot as well gouerne by a woman as by a man, when it is his good pleasure so to doe, were great iniurie to God, and a great discredit to all woman kind: but to returne thither where I left.

In succession of Kings a question hath béene, where the King hath had sons, both before hee came to the Kingdome and after, which of them is to succéed, he that was borne be­fore the Kingdom, as hauing the prerogatiue of his birth­right, or he that was dorne after, as being brought into the world vnder a greater planet than the other, neither hath there wanted reason or example for each side to found them­selues Herodot. lib. 4. Iustin. lib. 11. Plutarchus in vita Artoxerxis. on: for Xerxes the son of Darius King of Persia be­ing the eldest birth after his father was inthronised in the Kingdom, carried away the Empire thereof from his bro­ther Artemines or Artebarsones borne before his father came to the royall possession thereof: so Arseces the son of another Darius borne in the time of his fathers Empire carried away the garland from his brother Cyrus borne before the Em­pire: so Lewes Duke of Millan borne after his father was Gui [...]ard. l. 1. Histor. [...]lon [...]us Decad. 2. lib. 6. Mich. Ritius lib. 2. de regib. H [...] ­gar. Sigeb. in [...]roni. Duke, was preferred to the Dukedome, before his brother Galliasius borne before the Dukedome. But these examples notwithstanding, and the opinion of sundry Doctors to the contrarie, common vse of succession in these latter daies hath gone to the contrarie, and that not without good reason: for that it is not meet, that any that haue right to any succession by the progatiue of their birthright (such as all elder brethren haue) should be despoiled therof, except there be some euident cause of incapacitie to the contrarie.

Beside sundry contentions haue risen in kingdomes be­tweene the issue of the eldest sonne of the king dying before his father, and the second brother suruiuing the father, who should Raigne after the Father, the Nephew challenging the [Page 101] same vnto him, by the title of his fathers birthright, and so by the way of representation; for the eldest son, euen the fa­ther yet liuing, beares the person of the father: how much ff. de liberis & posthumis l in suis. then rather his father being dead? Whereupon the Law cals as well the sonne Filiusfamilias, as the father Paterfami­lias, for that the son, euen during the fathers life, is as it were Lord of his fathers state: the other claiming as eldest son to his father, at the time of his death; vpon which title, in old Pausanias lib. 3. Historiaris. time there grew controuersie betwéene Areus the son of A­crotatus eldest son to Cleomines King of Lacedemon, and Cleomines second son to Cleomines, and vncle to the said Areus, but after debate thereof, the Senate gaue their sen­tence for Areus right, against Cleomines: beside Eunomus Plutarch. in vi­ta Licurg. King of Lacedemon hauing two sons, Polydectes and Ly­curgus, Polydectes dying without children, Lycurgus succée­ded in the kingdom, but after that he vnderstood Polydectes widow had a child, he yeelded the Crowne to him: wherein he dealt far more religiously then either did king Iohn, who vpon like pretence not only put by Arthur Plantaginet his eldest brothers son, from the succession of the kingdom, but also, most vnnaturally, tooke away his life from him; or king Richard the third, who most barbarously, to come vnto the kingdom, did not only sley his two innocent Nephewes, but also defamed his owne mother, in publishing to the world that the late king his brother, was a bastard. Our Stories Bartel. l. si vi [...]ae matre C. de bonis maternis pri­mogeniti filii nō exclud [...] secūdo­genitū in regno. doe not obscurely note that controuersie of like matter, had like to growne betwéene Richard the second and Iohn of Gaunt his vncle, and that hee had procured the counsell of sundry great learned men to this purpose, but that he found the hearts of sundry Noblemen of the Land, (and specially the citizens of London) to bee against him; whereupon hee desisted from his purpose, and acknowledged his Nephewes right. Yet notwithstanding, when as Charles the second Vicerius in vita Henric [...] 7. King of Cicill, departed his life, and left behind him a Ne­phew of Charles his clo [...]st son, surnamed Martellus, and his younger son Robert, and the matter came in question which of them should succéede, Clement the fifth gaue sentence for [Page 102] Robert the younger son of Charles deceased, against the son of Martellus, being Nephew to his Grandfather, and so caused the said Robert to be proclamed king of both Caecils; Clem. pastoralis de re iudicata. which was done rather vpon displeasure that Pope Clement conceiued against the Emperour Frederick, than that there was iust cause so to doe. And yet Glanuill, an old reuerent Lawyer of this Land, and Lord chiefe Iustice vnder Henry the second, séemeth to make this questionable here Glanuil l. 7. c. 3. in England, who should bee preferred, the Vncle or the Nephew.

And thus much of succession of kings, wherein the eldest among Males hath the prerogatiue, and the like in Fe­males, if there be no Male: for that a Kingdom is a dig­nitie vndiuisible, and can come but to one, bee hee Male or Female; for that otherwise great gouernments would soone come to small Rules and Territories.

And the like that is said of Kingdoms, is to be held of all Dignities vnder Kingdomes, where the eldest son is to bee preferred before all his other brethren, and they successiuely one before another, if there be no issue left of them that goe before; and the Male line is to be preferred before the Femi­nine, and the Feminine before all the rest of the kindred, so it be not a Masculine Feud, and the same intailed vpon the heire Male.

And thus far, as concerning the matters wherein the Ci­uile Law dealeth directly or incidently within this Realme. Now it followeth, to shew how much of all those titles of the Canon Law, which haue bin before set downe, are here in practise among vs.

Of those Titles of the Canon Law, which before haue béene recited, some are out of vse here with vs in the singular or Indiuiduum, by reason of the grosse Idola­try they did containe in them; as the Title of the autho­ritie and vse of the Pal, the title of the Masse, the title of Reliques & the worship of Saints, the title of Monks, and Regular Canons, the title of the kéeping of the Eucharist, and Creame, & such other of like qualitie: but yet are retained [Page 103] in the generall: for in stead of them there are substituted in their places holy worships, tending to the like end of godli­nesse those other did pretend, but void of those superstitious meanes the other thought to please God by; and so in stead of the Masse, hath come in the holy Communion; and in place of worshipping of Saints, hath succeeded a godly remembrance, and glorifying of God in his Saints, and so of the rest whereof there is any right vse within the Church.

Some other are out of vse as well among the Ciuile as Criminall titles, because the matter that is therein treated of, is knowne notoriously to belong to the conusance of the Common Law at this day, as the titles of Buying and Selling, of Leasing, Letting, and taking to Farme, of Mor­gaging, and pledging, of Giuing by déed of gift, of Detecting of Collusion and Cosenage, of Murder, of Theft, and recei­uing of Théeues, and such like.

And yet, I doubt not, but euen these matters, as well Ciuile as Criminall, or most of them, were aunciently in practise, and allowed in Bishops Courts in this Land, a­mong Clerkes, to the which I am induced by three reasons: First, that I find not only the forraine Authors of the De­cretals, but also the domesticall Authors of the Legantines, being all most excellent wise men, as the Stories of their se­uerall ages do report, to haue inacted these seuerall constitu­tions, and to haue inserted them, not onely in the bodie of the Canon Law, but also in the bodie of the Ecclesiasticall Lawes of this Land; and that some wise men, sundry years after their ages, did write and comment vpon the same, as things expedient and profitable for the vse of the Church, and the gouernment of the Clergie in those daies; neither of which, I doe presume, they would haue done, if in those ages there had not béene good vse and frée practise of them.

Secondly, that I find in the Code of Iustinian, by sundry Laws, some of his own making, some other of other Empe­rors before his time, euen from the daies of Constantine the [Page 104] great, bishops in their Episcopall audience had the practise of these matters as wel Criminal as Ciuile, and to that end had they their Officials or Chauncellors, whom the Law calleth Ecclesiecdici or Episcoporum Ecdici, that is, Church Lawyers, or Bishops Lawyers, men trained vp in the Ciuile and Canon Law of those ages, to direct them in matters of Iudgement as well in Ecclesiasticall Criminall matters, as Ecclesiasti­call Ciuile matters.

And that these, which now are Bishops Chauncellers, are the verie selfe same persons in Office, that aunciently exer­cised Ecclesiasticall Iurisdiction vnder Bishops, and were called Ecclesiecdici, it may appeare by that which Papias, an old auncient Historiographer cited by Gothofred in his An­notations vpon the foresaid Law Omnem in the Code, and title de Episcopis and Clericis, and vpon the §. Praeterea writeth of them, who saith thus, that Ecclesiecdici, or Ecdici were those that were ayders and assisters to the Bishops in their Iuris­dictions, not astrict or bound to one place, but euery where through the whole Diocesse supplying the absence of the Bi­shop, which is the very right description of the Bishops Chauncellers that now are; who for that they carrie the Bi­shops authoritie with them euery where for matters of Iu­risdiction, and that the Bishop and they make but one Con­sistorie, are called the Bishops Vicars generall, both in re­spect their authoritie stretcheth it selfe throughout the whole Diocesse, & also to distinguish them from the Commissaries of Bishoppes, whose authoritie is onely in some certaine place of the Diocesse, and some certaine causes of the Iuris­diction, limitted vnto them by the bishops, and therefore are called by the Law, Iudices or Officiales foranei as if you would Clem 2. ca. fora­neos de rescript. say, Officiales astricti cuidam foro diocesis tantum.

So that it is a very méere conceit, that a certaine gentle­man, very learned and eloquent, of late hath written, that Chauncellers are men but of late vpstart in the world, and that the sloth of bishops hath brought in Chauncelors, wher­as in very déed, Chauncellers are equall, or néere equall in time to Bishops themselues, as both the Law it selfe, and [Page 105] Stories do shew: yea Chauncellers are so necessarie Baldus l. ali­quando ff. de officio Procon­sulis. officers to Bishops, that euery Bishop must of necessitie haue a Chaunceller, and if any Bishop would séeme to be compleat within himselfe, that he néeded not a Chaunceller, yet may the Archbishop of the Prouince wherein he is, com­pell Couar. lib. 3. va­riarum resolut. c. 20. num. 4. S. Br [...]z [...]. l [...]b. 1. de vica [...]o [...] q. 46 n [...]m. 1. 4. 12. & 13. him to take a Chaunceller, or if he refuse so to doe, put a Chaunceller on him: for that the Law doth presume, it is a matter of more weight than one man is able to susteine to gouerne a whole Diocesse by himselfe alone; and there­fore howsoeuer the nomination of the Chaunceller be in the Bishop, yet his aucthoritie comes from the Law, and Hostiensis in sum made offi­cio Vicarij nu­moro 2. in sine. nomirationem ab [...], potesta­tem vero a iure recipiuntur. therefore he is no lesse accompted an Ordinary by the Law, than the Bishop is. But trueth it is, not the sloth of the Bishops, but the multitude and varietie of Ecclesiasticall causes brought them in, which could not be defined by like former precedents, but needed euery one almost a newe de­cision. And the cause why Princes in the beginning granted to Clergy men these causes and their Consistories, (for from Princes were deriued in the beginning all these authori­ties, as also the Religion it selfe is setled and protected in Kingdomes by Princes, before there can be had a frée pas­sage thereof) was one that the Clergie men thereby might not be drawen from their prayer and exercise of diuine ser­uice to follow matters of suites abroad: secondly that they were like to haue a more speedy and better dispatch and more indifferency before a Iudge of their owne learning, than be­fore a Iudge of an other profession, for this is true, and euer hath bin, and I feare euer wil be vnto the end, that is said in the glosse, and is in common saw, Laici opido semper infesti sunt Clericis: Lastly that Clerks suits & quarrels should not be diuulged and spread abroade among the lay people, & that many times to the great discredit of the whole profession, specially in crimminall matters; wherein Princes auncient­ly so much tendered the Clergie, that if any man among them had committed any thing worthy death, or open shame he was not first executed, or put to his publike disgrace, be­fore he was degraded by the Bishop, and his Clergie, and so [Page 106] was executed, & put to shame, not as a Clerk, but as a lay ma­lefactor; which regard towards Ecclesiasticall men, it were well it were still reteined, both because the consideration thereof is reuerent & worthy the dignity of the Ministerie, whose office is most honorable, & also for that it is more aun­cient than any Papisticall immunitie is.

The third and last reason that moues me that I should be­léeue, that these Titles sometimes were here in exercise a­mong vs in the Ecclesiastical Courts is, that I find Glanuill, Glanuill lib. 12. cap. 15. de Legi­bus Angliae. who himselfe liued vnder Henry the second, and was Lord chiefe Iustice of England in his daies, sort to the Ecclesiasti­call Courts the plea of Tenements, where the suit is be­twéene two Clerks, or betwéene a Clerk and a Lay man, and the plea is, De libera eleemosina feodi Ecclesiastici, et non pe­titur inde recognitio, whether the frank fée be lay or Ecclesi­asticall: where also is further added that if it be found by the Idem lib. 13. cap. 25. verdict of legall and sufficient men, that it is of Ecclesiastical fée, it shall not be after drawen to lay fée, no though it be held of the Church, by seruices thereunto due and accustomed: se­condly whereas land is demaunded in marriage by the hus­band, Idem lib. 7. cap. 18. or the wife, or their heire, and the demaund be against the giuer, or his heire, then it shal be at the choice of the de­maunder, whether he will sue for the same in the court Chri­stian or in the secular Court: For saieth he, it pertaineth vn­to the Ecclesiasticall Courts to hold plea of dowries, which he calleth Maritagia, if so be the plaintife so make choice of those Courts, for the mutuall affiance that is there made be­twéene the man & the wife, for marriage to be had betwéene them, & there is a dowry promised vnto the man by the wo­mans friends, neither shall this plea be caried vnto the tem­porall Courts, no though the lands be of Lay fée, so that it be certein the suit is for a Dowry, but if the suit be against a stranger, it is otherwise: thirdly the Kings prohibition for­bidding Anno 24. Ed. 1. the Clergie the dealing in many things which are of lay fée, forbids them no one thing that is of Ecclesiasticall fée, and to shew the Princes meaning precisely therein, that it was not his intent by that Prohibition to restraine the [Page 107] Ecclesiasticall Iudges for procéeding in matters of Ecclesi­asticall fée, he sets downe in very tearmes these words (Re­cognisances touching Lay fée) as though he would hereby signifie to all men, that he would not touch matters of Ec­clesiasticall fée, which did then wholy & properly appertaine to the triall of the Christian Court, as hath bin before vou­ched out of Glanuill; who for the place he then held, may be thought to haue knowen the Lawes of England, as then they stood, and the right interpretation thereof, aswell as any man then or now lyuing. And yet because there were some things of Lay fee, which the Clergie then had cog­nisance of, as yet they haue in some measure; as causes and matters of Money, chattels, and debts, rysing out of Testaments or Matrimonie, because he would haue what­soeuer belonged to the Clergie to be vndoubted, excepteth them from those things which belong to the Crowne and dignitie, and leaueth them to the ordering of the Christian Courts; which is nothing else but an affirmance of that which Glanuill, and the rest of the auncient English Law­yers, Bracton and Britton said before.

Lastly the prouinciall Constitution Aeternae de poenis, made in the dayes of Henry the 3. plainly shewes, that in those dayes all personall suits betwéene eyther Clerke or Clerke, or betwéene Lay men complaynants, and Clerkes defendants (for euer the Plaintife must follow the Court of the Defendant, which to the Ecclesiasticall men then was the Ecclesiasticall Court) were tried by the Spirituall Law, and not by the Temporall Law: which practize for that it doth accord with the iudgement of those auncient Lawyers that haue bin before cited, and with the Prohibition it selfe, which there restraineth only calling of Lay men to make re­cognisances of matters of Lay fée; it may be a great argu­ment, that these things were of the Ecclesiasticall right in those dayes: from which I sée not how the Ecclesiasticall Courts are falne, for I sée neither Law nor Statute to the contrarie, vnlesse perhaps they will say the Statute of the 25. H. 8. cap. 19. 25. of H. 8. cap. 19. toke the same away, as being hurtfull [Page 108] to the kings Prerogatiue royall, & repugnant to the Lawes, Statutes, and Customes of this Realme; which whether they be, or be not taken away by the stroak of that Statute, I leaue it to men of better experience in these matters than my selfe to iudge.

But yet this I find by experience to be true, That where there are two diuers Iurisdictions in one Common wealth, vnlesse they be carefully bounded by the Prince, & an equall respect carried to both of them, so far as their places, and the necessarie vse of them in the Common wealth requires; as the aduancement of the one increaseth, so the practize of the other decreaseth; specially if one haue got the countenance of the State more than the other: which is the only cause at this day of the ouerflowing of the one, and the ebbing of the other, but it is in his Sacred Maiestie to redresse it, not by taking away any thing from that profession that is theirs, but by restoring to this profession, that which is their owne; but hereof [...].

For the rest of the matters that belong to the triall of the Ecclesiasticall Courts, some are acknowledged to be abso­lutely in vse, some other are challenged to be but in a certein measure in vse.

In absolute vse are those which neuer had any opposition against them, which almost are those alone which belong to the Bishops degrée or order; for all things which come with­in the compasse of the Ecclesiasticall Law, are either belong­ing to the Bishops degrée, or his Iurisdiction: To his degrée or order belong the ordering of Ministers and Deacons, the confirmation of Children, the dedication of Churches and Churchyards, and such like, none of which haue béen chal­lenged at any time to belong to any other Law. The second sort is of them that belong to the Bishops iurisdiction, which is partly voluntarie, partly litigious: Voluntarie is, when those with whom the dealing is, stand not against it, but litigious it is, when it is oppugned by the one part or the other; Of this latter sort many things in sundry ages haue bin cald in question, but yet rescued and recouered againe by [Page 109] the wise & graue Iudges themselues, who haue found the challenge of them to be vniust. But what doth belong to either of them in priuat, or what causes do appertaine to the whole Iurisdiction in generall, because they haue bin alrea­die particulerly set downe by that famous man of worthy memory Doctor Cosin, in his learned Apologie for certaine Cos in in his A­pologie part 1. c. 2. procéedings in Ecclesiasticall Courts; I will not make a new catalogue of them, but send the Reader for the know­ledge thereof vnto his Booke; but yet in my passage will I note which of them haue bin most chiefly oppugned, and as occasion shall fall out speak to them.

And thus much as concerning those parts of the Ecclesi­asticall Law, which are here in vse with vs: Now it follow­eth to shew whereby the exercise of that Iurisdiction which is granted to be of the Ciuile and Ecclesiasticall cognizance, is defeated & impeached by the Common Law of this Land, which is the third part of this Diuision.

The impeachment therefore is by one of these meanes, by Praemunire, by Prohibition, by Iniunction, by Super­sedeas, by Indicauit, or Quare impedit: but because the fower last are nothing so frequent, nor so harmfull as the others, and that this Booke would grow into a huge vo­lume, if I should prosecute them all, I will only treat of the two first, and put ouer the rest vnto some better op­portunitie.

A Praemunire therefore is a writ awarded out of the kings Bench, against one who hath procured out any Bull, or like processe of the Pope from Rome, or elsewhere, for any Ecclesiasticall place, or preferment within this Realme; or doth sue in any forteine Ecclesiasticall Court, to de­feat or impeach any Iudgement giuen in the Kings Court, whereby the bodie of the offender is to be imprysoned during the Kings pleasure, his goods forfeyted, and his lands seized into the Kings hand, so long as the offender liueth.

This writ was much in vse, during the time the Bishop of Romes aucthoritie was in credit in this land, and very ne­cessary [Page 110] it was it should be so, for being then two like principal authorities acknowledged within this Land, the Spirituall in the Pope, and the Temporall in the King; the Spirituall 25. Edw. 2. 27. Edw. 3. ca. 1. 38 Edw. 3. ca. 1. & 2. 7. Rich. 2. ca. 12. 13. Rich. 2. ca. 2. 2. H. 4. cap. 3. grew on so fast on the temporal, that it was to be feared (had not these statutes bin prouided to restraine the Popes inter­prises) the spirituall Iurisdiction had deuoured vp the tempo­rall, as the temporall now on the contrary, side hath almost swallowed vp the spiritual. But since the forreine authoritie in Spirituall matters is abolished, and eyther Iurisdiction is agnised to be setled wholy, and only in the Prince of this land, sundry wise mens opinion is, there can lye no Prae­munire, by those Statutes at this day, against any man ex­ercising any subordinat Iurisdiction vnder the King, whe­ther the same be in the kings name, or in his name, who hath the same immediatly from the King: for that now all Iu­risdiction, whether it be Temporall or Ecclesiasticall is the Kings, and such Ecclesiasticall Lawes as now are in force, are called the Kings Ecclesiasticall Lawes, and the Kings Ecclesiasticall Courts; For that the King cannot haue in himselfe a contrarietie of Iurisdiction, fighting one against the other, as it was in the case betwéene himselfe and the Pope, although he may haue diuersitie of Iurisdiction with­in himselfe, which for order sake, and for auoyding of con­fusion in gouernment, he may restraine to certeine seuerall kinds of causes, and inflict punishment vpon those that shall go beyond the bounds or limits that are prescribed them: but to take them as enemies, or vnderminers of his state, he can not; for the question here is not, who is head of the cause, or Iurisdiction in controuersie, but who is to hold plea thereof, or exercise the Iurisdiction vnder that head, the Ecclesiasti­call or temporall Iudge. Neyther is that to moue any man that the Statutes made in former time against such Proui­sors, which vexed the King, and people of this land, with such vniust suits, doe not onely prouide against such pro­cesse as came from Rome, but against all others that came elsewhere, being like conditioned as they: for that it was not the meaning of those Statutes, or any of them, thereby [Page 111] to taxe the Bishops Courts, or any Consistory within this land, for that none of them euer vsed such malepert sawsi­nesse against the King, as to call the Iudgements of his Courts into question, although they went far in strayning vpon those things and causes, which were held to be of the Kings Temporall cognisance, as may appeare by the Kings Prohibition thereon framed. And beside the Archbishops, Bishops, and other Prelats of this Land, in the greatest heat of all this businesse, being then present in the Parliament whith the rest of the Nobilitie, disauowed the Popes inso­lencie toward the King in this behalfe; and assured him they would & ought to stand with his Maiestie against the Pope, in these and all other cases touching his Crowne and Rega­litie, as they were bound by their allegeance: so that they being not guilty of these enterprises against the King, but in as great a measure troubled in theyr owne Iurisdiction by the Pope, as the King himselfe was in the right of his Crowne, as may apppeare out of the course of the said Sta­tutes; The word (Elsewhere) can in no right sence be vn­derstood of them, or their Consistories: although some of late time thinking all is good seruice to the Realme, that is done for the aduancement of the Common Law, and depressing of the Ciuill Law, haue so interpreted it, but wythout ground or warrant of the Statutes themselues, who whol­lie make prouision against forreine authoritie, and speak no word of domesticall proceedings. But the same word (Elsewhere) is to be ment and conceiued of the places of re­moue the Popes vsed in those dayes, being somtimes at Rome in Italy, sometimes at Auignion in France, seme­times in other places, as by the date of the Bulls, and other processe of that age may be séene; which seuerall remoues of his, gaue occasion to the Parliament of inserting the word (Elsewhere,) in the bodie of those Statutes, that thereby the Statutes prouiding against Processe dated at Rome, they might not bée eluded by like Processe da­ted at Auignion, or any other place of the Popes aboade, and so the penaltie thereof towardes the offender might [Page 112] become voyd, and be frustrated. Neyther did the Lawes of this Land at any time whiles the Popes authoritie was in his greatest pride wythin this Realme, euer impute Praemunire to any Spirituall Subiect, dealing in anie Temporall matter, by any ordinarie power wythin the land, but restrained them by Prohibition only; as it is plaine by the Kings Prohibition, wherein are the greatest matters that euer the Clergie attempted by ordinarie and domesticall authoritie, and yet are refuted only by Prohibi­tion. But when as certeine busie-headed fellowes were not content to presse vpon the kings Regall iurisdiction at home, but would séek for meanes for preferment by forrein autho­ritie to controul the Iudgements giuen in the kings Courts by processe from the Pope; then were Premunires decréed, both to punish those audacious enterprises of those factious Subiects, and also to check the Popes insolencie, that he should not venter hereafter to enterprise such designements against the King and his people. But now since the feare thereof is past, by reason all entercourse is taken away be­twéene the Kings good Subiects, and the Court of Rome, it is not to be thought the meaning of good and mercifull Princes of this land is, the cause of these Statutes being taken away, the effect thereof shall remaine; and that good and dutifull subiects stepping happily awry in the exercise of some part of their Iurisdiction, (but yet without preiu­dice of the Prince, or his Regall power) shall be punished with like rigor of Law, as those which were molesters, grée­uers, and disquieters of the whole estate. But yet notwith­standing the edge of those Premunires which were then fra­med, remaine sharpe and vnblunted still against Priests, Iesuits, & other like Runnagates, which being not content with their owne natural Princes gouernment, séek to bring in againe, that and like forrein authoritie, which those Sta­tutes made prouision against; but these things I leaue to the reuerend Iudges of the land, and others that are skilfull in that profession, onely wishing that some which haue most insight into these matters, would adde some light vnto them, [Page 113] that men might not stumble at them, and fall into the daun­ger of them vnawares: but now to Prohibitions.

A Prohibition is a commaundement sent out of some of the Kings higher Courts of Records, where Prohibitions haue bin vsed to be graunted, in the Kings name, sealed with the seale of that Court, and subscribed with the Teste of the chiefe Iudge, or Iustice of the Court from whence the said Prohibition doth come, at the suggestion of the Plaintife, pretending himselfe to be grieued by some Ecclesiasticall or marine Iudge, in not admittance of some matter, or doing some other thing against his right, in his or their iudiciall procéedings, commaunding the said Ecclesiasticall or ma­rine Iudge to proceed no further in that cause: & if they haue sent out any censure Ecclesiasticall or Marine against the plaintife they recall it, and loose him from the same vn­der paine of the Kings high indignation vpon pretence that the same cause doth not belong to the Ecclesiasticall or Marine Iudge, but is of the temporall cognisance, and doth appertaine to the Crowne and dignitie.

Prohibitions, some are Prohibitions of Law, some other are Prohibitions of fact.

Prohibitions of Law, are those which are set downe by a­ny Law or Statute of this Land, whereby Ecclesiasticall Courts are interdicted to deale in the matters therein con­tained, such as are all those things which are expressed in the kings Prohibition; as are also those which are mencioned by the second of Edward the sixt, where Iudges Ecclesiasticall C. 13. 2. Edw. 6. are forbid to hold plea of any matter contrarie to the effect, in­tent, or meaning of the statute of W. 2. Capite 3. The sta­tute of Articuli Cleri, Circumspecte agatis, Sylua Cedua, the trea­ties De Regia Prohibitione, the Statute Anno 1. Edwardi 3. Ca­pite. 10. or oght else wherein the Kings Court ought to haue Iurisdiction.

Prohibitions of fact, are such which haue no precise word, or letter of Law or Statute for them, as haue the other, but are raised vp by argument out of the wit of the Deuiser. These, for the most part, are méere quirks and subtilties of [Page 114] law, and therfore ought to haue no more fauour in any wise, honourable, or well ordered Consistorie, than the equity of the cause it selfe doth deserue; for such manner of shifts (for the most part) bréed nought else but matter of vexation, and haue no other commendable end in them, though they pre­tend the right of the Kings Court, as those other Prohibiti­ons of the law doe: but the Kings right is not to be suppo­sed by imagination, but is to be made plaine by demonstrati­on, and so both the Statute of the 18. of Edward the third, Capite 5. is, where it is prouided no Prohibition shall goe out, but where the King hath the cognisance, and of right ought to haue; and also by the forenamed Statute of Ed­ward the sixt, which forbids that any Prohibition shall bee graunted out, but vpon sight of the libell, and other warie circumstances in the said Statute expressed: by which it is to bee intended the meaning of the Lawgiuers was not, that euery idle suggestion of euery Attorney should bréed a Pro­hibition, but such onely should bee graunted, as the Iudge in his wisdome should thinke worthy of that fauour, and of right and equitie did deserue it: although (as I must déeds confesse) the Statute is defectiue in this behalfe for to exact any such precise examination of him in these cases, as it is also in other points, and is almost the generall imperfection of all statutes that are made vpon Ecclesiasticall causes: but (I feare me) as emulation betwéene the two lawes, in the beginning brought in these multitudes of Prohibitions, ei­ther against or beside law, so the gaine they bring vnto the Temporall Courts maintaineth them; which also makes the Iudges they cesse not costs and damages in cases of of Consultation, (although the statute precisely requires their assent and and assignement therin) because they would not feare other men from suing out of Prohibitions, and pur­suing of the same.

The Prohibitions of the law, as haue beene before shew­ed, are neither many, nor much repined at, because they containe a necessarie distinction betwéene Iurisdiction and Iurisdiction, and imply the kings right, and subiectes be­nefit: [Page 115] but the Prohibitions of fact or of men, are both infinit and odious, for that there is, well nigh, no matter either Ciuile or Ecclesiasticall, bee it neuer so cléere or absolute, but they clog it and incumber it with some Prohibition; and the matter they conteine, is (for the most part) absurd and friuolous, as shall first appeare in Marine causes, and after in Ecclesiasticall matters.

For Marine causes, it is well knowne, that all such bargaines and contracts, or as it were contracts, as are made by any persons either in any forraine country, or a­ny Hauen or créeke of the Sea, or any shoare thereof, as far as the greatest winter waue doth run out, or vpon any great riuer, to the first bridge next to the Sea, for any marchandize, ship, tackle, or other negotiation belonging to the Sea, or to any marchandize brought from beyond the Sea, is and ought to bee of the admirall cognisance, and so euermore hath béene since the Court of the Admi­raltie was first erected: and yet the Common Lawyers to defeate the Ciuile Law of the tryall thereof haue deui­sed sundry actions, and among the rest, an action of Tro­uer, whereby they faine, that a ship arriued in Cheapside or some other like place within the citie, and there the Plain­tife and Defendant meeting together, bargained vpon some marchandize, or other like sea-faring matter, by which fiction they pretend, the bargaine now is to bee tryed in the Common Law, and not by the Ciuile Law, as be­ing done in the bodie of a Countie, and not vpon the maine Sea, or any other place subiect to the Admirall Iuris­diction.

But that this fiction, or any other like qualitied to this, should haue any such force as to worke any effect in Law, I will shew, first by the definition of a ficti­on, then by those things that are necessarily attendant thereon.

A fiction thereof is defined by Bartol (whom also the rest [...]. si is qui proemptore § 3. ff. de vsucapi­omb. & ibi Bar­tol. of the Doctors doe follow) to be an assumption of the Law vpon an vntruth, for a truth, in a certaine thing possible to [Page 116] be done, and yet not done: vpon which fiction the Doctors hold there wait two things, the one is Equitie, the other Possibilitie. For first, vnlesse there because why, that which is not, should be famed to be, and that which is, should bee accounted not to bee, and that which is done in one sort, or at one time, or in one place, should be imagined to be done in another sort, at another time, and in another place, there is no reason a fiction should be admitted: for the Law alloweth no man to come to extraordinarie remedies, but where ordi­narie remedies faile: and therefore if that which is in con­trouersie may be obtained by any other meanes than by a fiction, a fiction is not to be afforded: but if ordinarie means cannot be had, then fictions may be entertained to supply the L. in causa. ff. de numrib. defect of the ordinarie meanes, that thereby, although the truth bee otherwise, yet the effect of the Law may bee all one.

So then the Law faineth an infant not yet borne, to bee borne for his benefit, for that happily without that fiction, L. qui in vtero & penult de statu hō [...] ff. the poore infant should be remedilesse of his Filiall portion, Legacie, or other right in conscience due vnto him: so Ne­phewes and Neeces succéed together with their Vncles and L. 1. § si [...]iliu [...] ff. de suis & legit. l. 2. l. 3. l. 4 C. [...]od. l Gal [...]us 29 § & bene & § videndum ff. de liberis & posthu­m [...] § cum filius Inst [...]t. de haered. ab [...]n [...]ato. L. veri [...] est. § vl ff. pro socio, L. action. § pub­licatione ff. eod. L. absentē. ff. de verhorū sign [...]fi­cat. L. lege Cornel ff. ff. de testamen­ [...]is. Aunts in their Grandfathers and Grandmothers goods, for such portion as should haue come to their parents, if they had liued; for that the Law presumeth them to represent the per­son of their parents: so he that is dead, is fained to be aliue to many constructions in Law, speciall if many of his equals in age, be aliue at the time that hee is fained to bee aliue: so he that is aliue and is in captiuitie, for the vpholding of his will which he made in libertie, is fained to be dead the houre before he became captiue: so he that is obstinat and will not appeare in Iudgement, being lawfully called thereto, is fai­ned to be present, that neither himselfe should take benefit out of his obstinacie, neither his aduersarie hurt by his ab­sence and iniurie. Infinite more examples might be brought of this sort; but it would be too long to run thorough them al, and this shall suffice to haue shewed that the Law approueth fictions, but where there is equitie for it, and the Law it selfe [Page 117] otherwise cannot haue her effect. And as the Law cannot L. Gallus § fi e­ius ff. de liberis & posthumis. l. fi pater § sicum. ff. de adopt. Horat. de Arte poetica. procéed to a fiction without equitie, so neither can it faine any thing that is impossible, for Art euermore followeth Nature; and therfore if a man would faine disproportionable things, such as the Painter did in Horace, who made Boares wal­low in the waues of the Sea, and Dolphins wander in the woods; these fictions in no sence can be admitted, for that they are such as neither nature nor reason can brooke. In like sort, if a man would faine one to liue, who were dead two hundred yeares since, so that it were not possible, that he or Bartol l. si is qu [...] proemptore num. 21. 22. 23. & s [...] quentib. any of his equals should liue at that age, this would not hold in Law, for that it is aboue the age the Law doth presume a­ny man may liue by Nature; although the Law doth pre­sume such as dye in war for defence of their country (for the better incouragement of those that are aliue, to venter them­selues in like seruice for the common wealth) to liue for euer; because their fame doth florish for euer: and vpon like rea­son the Law will not suffer any person to adopt another for his child, who is either elder or equal in age vnto himselfe, or is not so far vnder his yeares, as by course of Nature he might bee his naturall child indéed: so much the Law de­testeth impossibilities, that it will not suffer a man to fame that which in common Sence and Nature might not be true indéed.

Now, if these things be true, as in all reason and shew, by former precedents they appeare to be true, I would gladly see how actions of Trouer, (whereby the Common Lawyers translate vnto themselues matters of Marine triall) if they be squared to these Rules of Fictions, can be maintained: for first to speake of equitie, which the Law requires in these manner of proceedings, what equitie can it be to take away the triall of such businesse as belongeth to one Court, & to pul it to another Court; specially, when as the Court from whence it is drawne, is more fit for it, both in respect of the fulnesse of knowledge that that Court hath to deale in such businesse, and also of the competencie of skill that is in the Iudges and professors of those Courts, correspondent to [Page 118] these causes, more than is in the Iudges and professors of the other Courts, for the deciding and determining of these matters. For, albeit otherwise they are very wise and suf­ficient men in the vnderstanding of their owne profession, yet haue they small skil or knowledge in matters pertaining to the Ciuile profession: for that there is nothing written in their bookes of these matters, more than is to be gathered out of a few Statutes of former time, whose drist was not to o­pen any doore vnto them, to enter vpon the admirall profes­sion, but to preserue the Kings Iurisdiction from the Admi­rall incrochment, as may by the said Statutes appeare; wheras contrarily, the Ciuile law hath sundry titles included in the bodie thereof concerning these kind of causes; where­upon the interpreters of the Law haue largely commented, & others haue made seuerall Tractats thereof: So that, by all likelihood, these men are more fit and better furnished to deale in this businesse, than any men of any other profession, as hauing, beside the strength of their owne wit, other mens helps and labors to rely vpon.

Besides, this businesse many times concerns not only our owne countrimen, but also strangers, who are parties to the suit, who are borne, and doe liue in countries ordered by the Ciuile Law, wherby they may be presumed they haue more skill and better liking of that Law, than they can be thought to haue of our Lawes and our procéedings: and therefore it were no indifferencie to call them from the trial of that Law, which they, in some part know, and is the Law of their coun­try (as it is almost to all Christendem beside) to the tryall of a Law which they know in no part, & is méere forraine vnto them; specially when the Princes of this Land haue aunci­ently allowed the Ciuile Law to bee a Common Law, in these cases, as well to their owne subiects, as it is to strangers.

Further, the auocating away of causes in this sort from one Iurisdiction to another, specially when the cause hath long depended in the Court from whence it is called, insomuch as now it is ready to sentence, or rather is past sentence, and [Page 119] stands at execution, cannot be but great iniurie to the subiect after so much labour lost, and money spent in waste, to begin his suite a new againe: which is like to Sysiphus punishment, who when he hath with all his might, forced his stone vp to the top of the hill, and so is (as himselfe hopes) at an end of his labour; yet the stone rowles downe againe on him, and so his second labour (his strength being spent with the toile of the first) is more grieuous than the former was: which be­ing semblably true in a poore Clyent, who hath his cause in hearing, there can bee no equitie in this fiction, whereby a cause so néere ended, should againe bee put vpon the An­uill, as though it were still rough worke and new to bee begun.

And surely, as there is no equitie in it, so there is no possi­bilitie such a fiction should be maintained by Law; for that it hath no ground of reason to rest his féete on. For if this be graunted, that such a fiction by Law may be made, then one of these absurdities must needs follow, either that a ship may ariue in a place where no water is to carrie it, or if that it a­riue according to the fiction, either the people, their houses & their wealth shall be all ouerwhelmed in the water, as the world was in Noahs Floud, and Deucalions Deluge, and so no bodie there shall be left aliue to make any bargaine or con­tract with the Mariners and shipmen that arriue there; or that the people that dwell there shall walke vpon the water, as people doe on land, which Peter himselfe was not able to doe, but had suncke, if Christ had not reacht his hand vnto him, and therefore far lesse possible for any other man to do. So that it may be wel said (these things standing as they do) no such fiction can hold, and that no action can be framed vpon it; for as there is no Obligation of impossible things, so there is no Action of things that neither Nature nor Reason will afford to be done: neither is it to the purpose that the main­tainers of these fictions doe say, that in this case, the place where the contract is made is not considerable, which I take to be far otherwise; for that, when that themselues will con­uey a Marine cause from the Sea vnto the Land, they will [Page 120] lay it to be done in some speciall place of a Countie, bee the place neuer so vnproper for such an action: for that the foun­dation of these actions, is the place where they were done, as namely that they were done in the bodie of such a Coun­tie, or such a Countie, and not vpon the maine sea, or beneath the lowest bridge, that is vpon any great riuer next the sea. And therefore in two emulous Iurisdictions, when they are so deuided, as that one is assigned the sea, the other the land, the place of the action can in no sort be suppressed, and ano­ther supplyed in the roome thereof: Quod enim vna via prohiba­tur, alia via non est permittendum, & quod prohibitum est directo, prohibetur etiam per obliquum: for if this were graunted, then matter enough would be offered to one Iurisdiction to de­uour vp the other, and the Law would be easily eluded: which to restraine either of these Iurisdictions to their owne place, and to prouide that one in his greatnesse doe not swell vp a­gainst the other, hath set either of them their bounds and ly­mits, which they shall not passe: which, as it is the good pro­uision of the Law, so ought either Iurisdiction in all obedi­ence to submit it selfe therunto, for that the diminishing of ei­ther of them is a wrong to the Prince from whom they are deriued, who is no lesse Lord of the Sea than he is King of the Land: and therefore, in no sort, such libertie must bee al­lowed to the one directly or indirectly, as that it should bee a spoyle vnto the other; which would easily come to passe, if when as the law alloweth not any man to sue a Marine by the ordinarie course of the lawes of this land, yet a man will follow it by an extraordinarie. But where there is an vni­formitie of Iurisdiction, as that it is all by sea, or all by land, there may a thing be fained to be done in one place, that was done in another place, without any mans preiudice, for that in this case, the place is not trauersable (so it be not in Crimi­nall matters where time and place is required, that the ac­cuser doe not wander from place to place with the iniurie of the accused) for howsoeuer the place and the action is altered, yet the truth of the cause remaineth one and the selfe same still: and so far as concerning actions of Trouer in Admirall [Page 121] causes. Now it doth follow that I should speak of like preiu­dices that grow to the same by actions of Trespas, but those will I passe ouer, for that in so small a Treatise as this is, I cannot go ouer all: and therefore will I only put the Reader in mind, that there are more deuises rising out of the Com­mon Law, that infest the Admiraltie than one. But now to Wils and Testaments wherein they are impeached.

For matters of Wills and Legacies, they are so proper to the triall of the Ecclesiasticall Law of this Realme, as the professors of the Common Law themselues, do oftentimes confesse and say, they haue no more to doe therewith, than the Ciuilian hath to doe with the knowledge of the matters of Franktenement: and yet euen these matters of Testa­ments & Legacies, although Prohibitions be not so frequent in them, as they are in the rest of Ecclesiasticall causes, yet they are not quite void of them, and that in some points, wherein the verie life & essence of a Will doth stand.

For whereas the auncient Romanes, knowing how sub­iect matters of Wils are to forgerie & corruption on the one side, and suppression & concealment on the other side, to méet with all craft & subtilty whatsoeuer, which might seize on them, did most carefully prouide, that there should be seuen witnesses at the least, present at the making of euery Will & Testament, except it were in time of some generall plague or sicknesse, when so many Witnesses could not conueni­ently be had together for feare of infection, or if it were in the Countrie, where there are small multitude of people, and that those witnesses should be particulerly required to that purpose; with diuers other obseruations and circumstances tending all to the safe and sure making thereof: which the Ecclesiasticall Law altered afterward in sundry points, for that many true Wills were many times ouerthrowen for want of those precise solemnities, & reduced the whole num­ber of those seuen witnesses, vnto two only agreeably to the Law of God, & the Law of Nations, where that number of witnesses is allowed, as competent to prooue any matter, so that the same witnesses be honest & credible persons, such as [Page 122] whose faith is not doubted of. The Common Lawyers, be­cause themselues in sundry matters very dangerously many times admit one witnesse, & giue him full credit, and that in matters of great waight & importance; (as though all should be squared to their rule, and framed to their compasse) If an Ecclesiasticall Iudge in the probate of a Will, contrarie to the rules of his owne Law, will not admit the testimonie of one witnesse, they forthwith fling out a Prohibition against him, as though he had done an offence against the Crowne and dignitie, in that he doth not allow those number of wit­nesses in the Probate of a Will, that the Common Lawes of this land allow almost in euery matter.

For aunswere to which, if I should alleage the precise forme of the Ecclesiasticall Law, which to the essence of a will requireth this number of two witnesses, or else holdeth it not for a Will (but in cases inter liberos, & ad pios vsus, where the only hand of the Father or Testator without wit­nesses serueth for a Will, so the same be knowen to be the Testators owne hand, or so prooued by comparison) I would think to wise men I had said sufficiently; but I will not rest hereupon, but will conuince themselues, by themselues: for, doe they I pray you in their owne procéedings, where a Law or Statute requires more witnesses than one, content themselues with one witnesse alone? yea, doe they not in all cases where a certeine number of witnesses are appointed to prooue a fact by Law or statute, furnish the cause with so ma­nie witnesses as the case desires, or else doe they not accompt the procéeding void? And will they think themselues so pre­cisely bound to the kéeping of the letter of the Common law, and will they not suffer the Ciuilian in like maner to cleane fast to the obseruation of the Ciuile Law, especially when it hath the consent of the Law of God, & the Law of Nations, and is his Maiesties Ecclesiasticall Law of this land, aswell as the other is his Temporall Law of the same?

I confesse it may be true many times, which one man saith, specially when there concur therewith many great and vio­lent presumptions, and the party that reporteth it is of good [Page 123] credit, but dangerous it is to open this gap to the malice of men, for euen so, many things shall be obtruded to the Iudge for trueth, which are stark lyes, and many things shall be pretended to be gold in shew, which in proofe and practize will L. iuris. urandi. §. Simili modo. C. de Testibus. be found to be no other thing, but méere drosse. And there­fore well decréed the Emperor Constantine, that no one mans testimonie should be heard, though he were neuer so great a man in Court.

But perhaps some man will say, if credit shall not be gi­uen oftentimes to one mans testimonie, much wickednesse will passe away vnpunished: for reply to which I aunswere, it is better to let a bad man scape, than to punish a good, and although it be true, if a man may excuse himselfe by deniall, no man will be found guiltie; so also it is true on the other side, if it be ynough to condemnation to be charged by one man alone, without any other witnesses, no man shall be innocent, and therefore the admittance of one witnesse in causes, and the procéeding thereupon to iudgement is verie dangerous.

An other like bar to this they lay in against Ecclesiasticall procéedings in matters of Testament; whereas an Ecclesi­astical Iudge prooueth a Will, wherein are mannors, lands, tenements, and other like hereditaments bequeathed, chal­lenging this also to be of the Crowne and dignity, as though the Ecclesiasticall Iudge thereby tooke vpon him to decrée which lands were deuisable by will, and which not, or would by his probat adde a strength vnto the Will, to make the de­uise good or bad, whereas on the contrarie part the Ecclesi­asticall Iudge by this act doth only testifie, that such a person made such a will, & that the same was prooued before himselfe vnder his Teste, for his last will & testament: but for the va­liditie of the Will it selfe, and the Legacies & deuises therein, whether they were of lands or tenements, or of goods or chat­tels, the Probat it selfe worketh nothing, but leaueth that to the Law, Common or Ecclesiastical, 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 [Page 124] Will be lawfully prooued before the Ordinarie, yet the be­quests are not good, eyther in respect of the person to whom the bequests are made, or in respect of the thing that is not deuisable in all, or in part; as by the Common Law, lands in Capite cannot be deuised, more than for two parts, but in Socage the deuise is good for all; And by the Custome of the Citie of London, & some other places of the land, a man can bequeath no more than his deathes part, and if he do, his bequest is void for the rest; but in other places of the land a man may bequeath all. By the Ciuile Law a man can be­queath nothing to a Traytor, or an Hereticke, or an vnlaw­full Colledge, or Companie (vnlesse perhaps it be for the aliment, or maintenance of them in extreame pouertie, that they dye not for hunger, which is the worke of charitie) and if he doe, the legacie thereof is void to all intents & purposes. So then, the Probate of the Ordinarie in matters of land, neyther helpeth, nor hindreth the right of the deuise it selfe, but is a declaration only of the dead Mans doome vttered be­fore such, and such witnesses: which taketh his strength not so much from the Probat, as from the Law, and is testified only by the Probat, that the same was declared by the Te­stator, in the presence of the witnesses therein named, to be his true & Last Will. So that no man herein is to be offen­ded with the Ordinary, as presuming of a matter not apper­tayning vnto him: for this testification in all Law & consci­ence doth belong vnto him, to giue allowance so far vnto tho defuncts Will, as it is auouched before him to be his last act and déed in that behalfe: but rather they are in this case to thank the Ordinary, that he by that act of his hath preserued the memorie of that, which otherwise perhaps would haue bin lost & perished, to the great hurt of the Common wealth, and others which haue priuate interest therein.

Of all matters that appertain to the Ecclesiastical Courts, ther is no one thing that the Princes of this land haue made more carefull prouision for, since there was any Church go­uernment in this land, than that all maner of Tythes due by the word of God should be fully & truely paid vnto their Pa­rish [Page 125] Churches where they grew, & if they were denied should be recouered by the Law of holy Church. For first before the Conquest, king Athelstone made a Law, that euery man Polychronicon. should pay his Tythes to God, in maner as Iacob did, who made a vow to God, If God would bring him back againe to his countrie, he would when he retorned home, pay tythes to God, of all that God should giue him: the like did king Edgar, & king Edmund, commaunding that those which wil­fully refused to pay their tithes, should be excommunicated.

William Conqueror, (as Roger Houenden reporteth) in Houenden part. 2. cap. de De­cimis ecclesiae. the 4. yeare after his conquest, hauing got some time of rest from warre, & setling of rebellious spirits, who kicked at his gouernment at home, entred into a consideration of the well ordering of the Church, and Common wealth by wholsome Lawes: & therefore by the aduise of his Counsell, let call all the great Prelates & Potentates of this Land, with twelue other sufficient men of euery Shire experienced in the Laws and customes of the Land, that he might by them learne by what Lawes & customes the land was gouerned, before him­selfe came to the Crowne thereof; straitly charging & com­maunding them vpon his high displeasure, they should make true report to him therof, without adding any thing thereto, or taking any thing therefro: who beginning of the Lawes of holie Church, because by it, the King and his throne are established, among other Lawes and liberties of the Church, recorded this for one, which I will verbatim set downe in Latin, as it is penned by the Author.

De omni Annona, decima garba est Deo reddita, & ideo reddenda: Si quis gregem Equarum habuerit, pullum reddat decimū, qui vnam tantum vel duas habuerit, de singulis pullis singulos denarios praebeat. Similiter qui plures Vaccas habu­erit, decimum vitulum, qui vnam vel duas de singulis vitulis singulos denarios; & qui caseum fecerit, det decimū Deo, et si non fecerit, lac decima die. Similiter Agnum decimū, vellus decimū, Butyrum decimum, Porcellū decimum. De Apibus vero similiter, decimū commodi, quinetiam de bosco, de prato, de aquis, de molendinis, & viuarijs, piscarijs, virgultis, & hortis, [Page 126] & negotiationibus, & omnibus rebus quas dederit Dominus decima pars ei reddenda est, qui nouem partes simul cum deci­ma largitur. Et qui eam detinuerit, per iustitiam Ep̄i, & Regis si necesse fuerit ad solutionem arguatur. Haec enim S. Augu­stinus praedicauit & docuit, et haec concessa sunt a Rege, Baro­nibus, & populo. Sed postea instinctu diaboli multi eam detinuerunt, & Sacerdotes negligentes non curabant inire laborem ad perquirendas eas, eo quòd sufficientér habe­bant vitae suae necessaria. Multis enim locis sunt tres vel qua­tuor Ecclesiae, vbi tune temporis vna tantum fuit, & sic caepe­runt minui.

This Augustine to whom the Conqueror here referreth himselfe, was Augustine the Monke, whom Gregory the great about the yeare of our Lord God 569. sent here into England, to réestablish the Faith decayed by the Saxons; who set down sundry ordinances for the Church, & framed it in vniformitie of Prayer & gouernment to that, as then was vsed in the Church of Rome: but long before Augustins time, as it may by our Stories appeare, (euen in the daies of king [...]he [...]ward. lib. [...]nico. Lucius, who sent to Elutherius a Bishop of Rome, for learned men to instruct him and his people in the Faith, which was about a hundred and fortie yeares after the Ascention of our Lord Iesus Christ) the Faith of Christ was here preached in Brytaine, and fiftéene Archbishops are by our Stories Io [...]elin of Fur­nes in h [...]s booke of Brittish Bi­shops. reported, one to haue succéeded an other in the Sea of Lon­don, before the irruption of the Saxons into this land; All which time it is not like the Churches of God that were in the land, were void of this prouision for the Ministerie, so Marianus Sco­tus. that I assure my selfe the payment of Tythes was far more auncient, than the time of Augustine; albeit the Conqueror citeth there the authoritie of Austen, rather than any former precedent of the Britans, both for that the doctrine of Austen was better knowen vnto the Saxons, among whose aunce­stors Austen taught & gouerned as an Archbishop, than any of the Fathers of the Brytish Church, to whom the Saxons were enemies, and their tongue altogether vnknowen vnto them; and beside, for that this doctrine of Austen, concer­ning [Page 127] Tythes, best suted with the generall custome that was then vsed thoroughout all Europe in paying thereof.

The next Prince after William Conqueror that ordered any thing about payment of Tythes, for oght that I haue read to the contrarie was Edward the first, who at the peti­tion of the Clergie, stablished the Articles of the Clergie, which his sonne Edward the second confirmed by his Let­ters patents vnder his great Seale, and by consent of Par­liament, at the petition of the Clergie in the ix. yeare of his Raigne.

In Edward the thirds time, writs of Scire facias were An. 18. Ed. 3. cap. 14. graunted out of the Chauncerie, to warne Prelates & other Clerks, to aunswere for Dismes there; but after the matter was well vnderstood by the king, the parties were dismissed from the Seculer Iudges, for such maner of pleas, sauing to the king his right, and such as his Auncestors had, and were wont to haue of reason.

During the Raigne of Richard the second, Parsons of An. 1. Rich. 2. cap. 14. holie Church were drawen into seculer Courts for their owne Tythes, by the name of goods taken away; And it was decréed by the King that in such case the generall auer­ment of the plaintife should not be taken, without shewing specially how the same was his Lay cattel.

By the Statute of the first of the same king cap. 14 it is acknowledged, that the pursuing for Tythes, of right doth, and of old times was wont to pertayne to the Spirituall Court, and that the Iudges of holie Church only haue the cognisance in these matters.

By the Statute of the 15. of Edward the third, it is orde­red, 15. Edw. 3. That Ministers of holie Church, neyther for money taken for the redemption of corporall penance, nor for proofe and accompt of Testaments, nor for trauell taken about the same, nor for solemnitie of Marriage, nor for any other thing touching the Iurisdiction of Holie Church should be appea­ched, or arrested, or driuen to answere the kings Iustices, or other ministers, & thereupon they should haue writs in the Chauncery, to the Iustices when they demaunded them.

[Page 128] In the second yeare of Henry the fourth, the Religious of 2. Hen. 4. the order of the Cystercians, that had purchased Buls from the Pope to be discharged of the paiment of Tythes, were by act of Parliament reduced to that state they were in before.

In the 5. yeare of the same King it was ordered, That 5. Hen. 4. ca. 11. all Farmers, and Occupiers of any lands or possessions be­longing to any Fryers Aliens, should pay all maner of Ty­thes due to Parsons and Vicars of Holie Church, in whose parishes the same were, as the Law of holy Church required, notwithstanding the same were seised into the K. hand, or any Prohibition were made, or to be made to the contrary.

About the 7. yeare of the same king, such Religious per­sons as had purchased Buls from the Pope in the dayes of Richard the second, to be discharged of Dismes pertaining to Parish Churches, Prebends, hospitals, or vicarages, not put in execution, were forbyd from that time foreward, to put them in execution, or to purchase any other in time to come.

After king Henry the eight had dissolued the Monasteries, and other like Religious houses, and sold the Churches and Tythes therto belonging to Lay men, (who before that time were not capable of the same; insomuch as after the dissolu­tion, when the Purchasors demaunded the same, they were denyed to hold plea therof, by reason of their incapacitie) a Statute was made in the 27. yeare of the same king, where­by 27▪ Hen. 8. cap. 20. all Subiects of the kings Dominions, were to pay theyr Tythes, and other dueties of Holy Church, according to the Ecclesiasticall Lawes, & ordinances of the Church of Eng­land, and after the laudable vses & customes of the Parishes and places where they dwelt, or occupied lands, and the same to be sued for before the Ordinary, or some other competent Iudge of the place, according to the course & processe of the K. Ecclesiast. Courts of England: which statute because it took little effect, by reason of the obstinary of the people in yéelding these dueties to the Laitie, who had purchased them, & that the said Purchasors could neyther by the order or course of the Ecclesiasticall Lawes, sue for them in any Ecclesiasticall Court of this land, neither was there found any remedy in [Page 129] the Common Law of this land, whereby they might bee re­lieued against them that wrongfully detained the same. In the 32. following another Statute was made, wherin it was 32. Hen. 8. [...]7. enacted that all & singuler persons of this Realme, and other of the kings dominions, of what state, degrée, or condition so­uer they were, should fully, truely, and effectually diuide, set out, yeeld, and pay, all and singuler their Tithes and Offe­rings, to the owners, proprietaries and possessors of Parso­nages, Vicarages and other Ecclesiastical places according to the Lawfull customes and vsages of the Parish and pla­ces where such Tythes or other duties rise and grow due. And in case where any are wronged and grieued, being ei­ther an Ecclesiasticall or lay person, for the wrongfull detei­ning or withholding of the said Tithes or offerings, or any part or parcell thereof, the same to haue full power and au­thoritie to conuent the same person or persons so detaining the same, before the Ordinarie or other competent Iudge of the place, where such wrong was done: and the same Ordi­narie or competent Iudge to haue power, by vertue of the said Act, to heare, decide, and determine the same by defini­tiue sentence, according to the course and procéeding of the Ecclesiasticall law, without reseruation of any right to the Temporall Iudge to giue remedie by any suit or action for the recouery of the same; sauing in case where an inheritance or fréehold in the premises is claimed, and the person clai­ming, is disseised, deforced, and put from the possession of the same, in which cases only, the Statute alloweth the Temporall Iudge to take knowledge, and that onely for the regai­ning of the right and the possession of the inheritance so lost.

After the decease of king Henry, king Edward his sonne 2. Edw. 6. c. 13. tendering in like sort the state of the Clergie, the benefit of his subiects, and the practise of the Ecclesiasticall Courts of this Land, made a Statute, wherby he did not onely ratify, confirme, and allow such statutes as his father had former­ly made, but did further order, that euery of the kings sub­iects from thenceforth should iustly and truely without fraud [Page 130] or deceipt set out and pay all manner of prediall Tythes in their proper kinde, as they did rise and happen, in such man­ner as had béene paid within the fortie yeares next before the making of that act, or of right or custome ought to haue beene paid, with certaine forfeitures and penalties, as well against them which carried away any prediall Tythes, before the tenth part thereof were iustly diuided from the same, or o­therwise agréed for with the owner thereof; as also against those that did let or hinder the owner thereof, his deputie or seruant to view, take, or carrie away the same. Inacting fur­ther that the party so substracting or withdrawing any of the Tythes, obuentions, profits, commodities, or other dueties aforesaid, might or should be conuented or sued in the kings Ecclesiasticall Court, by the party complainant, to the intent the kings Ecclesiasticall Iudge 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 conuent, or sue any withholder of Tythes, or any other like dueties, before any other Iudge than Ecclesiasticall; excep­ting only out of the said Statute things contearie or repug­nant to, or against the effect and meaning of the Statute of Westminster the second, the fift Chapter, the Statuts of Ar­ticuli Cleri, Circumspecte agatis, Sylua Cedua, the treaties De Re­gia Prohibitions, matters against the Statute of Anno primo Edwardi primi, Capite decimo, and such other matters beside, wherin the Kings Court of right ought to haue Iurisdiction.

Notwithstanding all which good prouision of ancient kings before the Conquest, and moderne kings since the Conquest, for the assuring of the suite of Tythes to the Ecclesiasticall Courts onely, and the continuall possession that the Ecclesi­asticall Courts haue had of the same, deduced from so aunci­ent time as hath béene before shewed, and so often obtained in contradictorie iudgement, as the consultations thereupon graunted doe testifie: yet sundry men in sundry ages, of this Land haue by wrenches and subtil denises (which are odious in Law, and are by all godly and wise Iudges by all possible [Page 131] meanes euermore to be restrained) raised vp matter out of the said statute themselues, contrarie to the true sence and meaning therof, to draw the tryall of most of those matters away from the Ecclesiasticall Courts. So that those Sta­tutes which then were intended for the good of the Ecclesia­sticall L. legata inn [...] ­liter. ff. de adi­mendis legatis. l. 2. ante finē. C. d [...] iure [...]ur. propter caluminā dando. Courts are now become the vtter ruine and ouer­throw of the same, contratie to the rule of the Law, and com­mon reason, that things which were purposed for one end, should worke vnto another end.

The first aduantage they take against the Ecclesiasticall Courts out of these Statutes, is gathered out of the twen­tie seuen and thirtie two of Henry the eight, where it is 27. & 32. Hen. [...] ordered that all the Kings subiects shall pay their Tythes according to the laudable vses and customes of their pa­rishes, and places where such Tythes grow and become due: which, albeit is vndoubtedly meant of Ecclesiasticall customes, triable at the Ecclesiasticall Law, and so euer held till now of late that men thinke all too much that goeth beside their owne n [...]; ye [...], there want not in these daies, which goe about with all might and maine to drawe away these things vnto the Temporal Courts, as belonging to the Temporall Crowne and dignitie: Wherein they do wrong, not only to the kings Ecclesiasticall Courts, to spoile them [...] their auncient Iurisdiction, but also do in [...] to the king himselfe, as though he had but [...] proper Iurisdiction belon­ging to his Throne, and seat of Maiestie, & that which were done by his Ecclesiasticall power, were done against his Crowne and Dignitie▪ whereas they are equally vni­red in him, and his Thro [...] is no lesse [...] vp by his Ecclesiastical power, th [...] it is vpholden by his Tempo­rall authoritie. And therefore a méere Paradox is that, that they so constantly affi [...], that customes in pay­ment of Tythes are matters of Temporall cognisance only, and not of spirituall cognition. For as there [...] Seculer customes, such a [...] [...]e the customes of Manor [...] and Lordships, where the Lord hath his Rent, hi [...] he [...]t, his reliefe and seruice, and the tenant againe doth his homage and fealtie, according to the Nature of his Tenure, which [Page 132] seculer customes the fornamed statute De Regia Prohibitions forbiddeth Ecclesiasticall Iudges to deale in: So also there are Ecclesiastical customes, such as is the payment of Tithes and other Ecclesiasticall duties, to which common Lawyers are not to put their hands, but to abstaine from them, as de­dicated to the vse and tryall of the spirituall Courts. Other­wise would neither the auncient authors of the Legantines and Prouinciall constitutions of this Land (the eldest of which, are equall with the daies of Henry the third, and the Prouincial. c. quoniam de deci­mis. youngest of them endeth in the raigne of Henry the fift) euer haue changed so many seuerall customes of payment of Tythes, as then were within the Land, and in stéed of them haue brought in one vniforme payment of the same, as is at this day vsed, saue where either the negligence of the Par­sons, or the couetousnesse of the Parishioners hath in some point changed the same. Neither would these statutes of Henry the eight euer ha [...]e ordered the people, should pay their Tythes after the laudable customes and vsages of the Parishes where they grew, if the vsage and custome of the payment it selfe had not beene subiect to the Ecclesiasticall cognisance: for in vaine shall [...] sue for that, the Law allowes him no course to come by, of it be denyed in the speci­all L. Finali. ff. de officio eius cui mandata est iu­risd. & l. 3. ff. de pena legata. [...] belonging [...] that [...] i [...] vndoubted Law where [...] Iuri [...]diction gran­ted, [...] in like manner granted all th [...]se things, with­out which, [...]hat authoritie or Iurisdiction cannot be perfected or performed.

And therefore it is without question, [...] Tythes, by the sai [...] Statut [...], [...] by the Ecclesiasticall law, and not [...] so [...] the Custome whereby they are p [...]d, i [...] onely [...]able at the Ecclesiasticall Law. Other­wise this [...] follow thereupon, which in all other [...] beside this of [...]ur [...], i [...] a great absurditie, Bartol. l. nulli C. de iudiciis. Glos. c. significanerunt de indiciis. th [...] the [...] of [...] which the Ciuilians call [...], [...]ill be [...] and [...]oyned, which by [...]ll good poli [...]ie, together with all her par [...]s emergent or [...] ought to be [...], discuss [...], and determined be­fore [Page 133] one and the selfe same Iudge; one, I mean not in num­ber, but one in profession, for otherwise I should by this as­sertion, bar Appeales, which is not mine intent.

Which course, if it were held here in England, causes should not be drawne péecemaele in such sort as Medea tore her brother limme-meale, and one part of it carried to this Cicero pro Mu­rena. Court, another to that, like vnto the rent limmes of the child that were cast here and there by Medea, thereby to hinder her father from pursuing of her; but al should be ended in one and the selfe same Court, which would be a great ease to the sub­iect, who to his intollerable vexation, and eycessiue charges is compelled to run from Court to Court, and to gather vp as it were, one lim of his cause here, and another there, and yet happily in the end cannot make a whole and perfect body of it.

Beside, it is a mightie disorder in a common wealth, thus to iumble one Iurisdiction with another, & the very confu­sion as well of the one law as the other; for as kingdomes are preserued by knowing their bounds, and kéeping their lymits, so also Iurisdictions are maintained and vpheld by containing themselues within the lists or banks of their au­thoritie.

Further, vnlesse they will graunt there is an Ecclesiasti­cal custome, as there is a Seculer Custome, and that the one is as well to be tryed in the one Court, as the other is in the other, they will make their owne Doctrine in the before-re­hearsed Prohibition void, where they certaine vs there is a Seculer Custome; and if there be a Seculer custome, then doubtlesse there is also an Ecclesiasticall or spirituall cu­stome: for the word Seculer, is not put in that place abso­lutely, Glos in Clem. v­n [...]a, in verbo a­terna [...]te [...]. de summa trinit. & f de catho­lica. but relatiuely, and the nature of Relatiues, is one to put another, & one to remoue another: but by the Seculer cu­stom they but the Ciuilian, therfore they grant him the spiri­tuall, for of contrarie things there are contrarie reasons and contrarie effects: and what that which is proposed, doth worke in that which is propounded, the same againe that L. Fin. § p [...]us [...] ­tem de legatis 3. & ibi Angel. which is opposed doth worke in that which is opponed, by [Page 134] which Rule, as Temporall Lawyers are to deale in Tempo­rall Customes, and spirituall men are not to intermedle ther­in, so also Ecclesiasticall Lawyers are to deale in Ecclesiasti­cal causes, and that temporal Lawyers are not to busie them­selues thereabout.

And that this was the intent of the king, when he first re­ceiued the Church into his protection, with all the priuiledges therof, may appeare hereby, that hauing vnited both the Iu­risdictions in his owne person, hee did not iumble them both together, as now they are, but kept them distinct, one from the other; not only in authorising the Ecclesiasticall Courts that were before, but also in vsing the verie words and phra­ses that the Iurisdictionaries Ecclesiasticall did vse euery where in their writings, euen these words whereupon men now take hold to frame Prohibitions vpon, viz. (according to the laudable customs & vsages of the parish and places where such Tythes growe) which were the words of Innocent the third, in the Decretals vpon the title of Tythe long before these statuts were made, or any other statuts concerning the true payment of tyths; and Linwod in the same title of tithes often vseth the very selfe same words and phrases that the other doth: so that if these words made no Prohibition before the statute (as I think, it cannot well be shewed to the con­trarie) neither ought they to do it now since the statute, for that they are taken still in the Church businesse, and not in a temporall matter: whose gouernment, although it be vnder one and the selfe same Prince that the Temporall state is, yet is it distinct from the same, as euer it hath bin since there hath bin any setled forme of Church gouernment many common 1. Corinth. 5. wealth, as may appear both by the example of S. Paul; which neuer goeth to any temporal power to punish the incestuous person, although there were sundry lawes then both in Gréeke and Latine written of these matters, but doth it by the spirituall sword alone: and also by that, that in mat­ters of Iar for worldly causes betwéen brother and brother, he forbids such as were new Christians, to go to law before 1. Corinth. 6. Infidels, but aduiseth them rather to appoint Iudges among [Page 135] themselues to decide such controuersies: which, albeit in those daies was ment as wel of lay Christians, as of the ministers of the Gospell, for that the number of them then was small, and the causes of suit they had one against another were not many, and might easily be ended by one and the selfe same consistorie; yet when the number of the Christians increa­sed, and the Church got some rest from persecution, the Iu­risdiction was againe diuided, and as there were Seculer Courts appointed by Princes, wherin Temporal mens cau­ses and Lay businesses were heard, so there were also by the same authoritie erected Ecclesiasticall Courts and Bishops C. de episcopall audienta t [...]rtis. audiences, wherin either Ecclesiasticall mens causes alone, or such as they had against Lay men, or Lay men against them were treated of, and determined.

So that this was no new deuise of Henry the eight, or Edward his sonne, that when they tooke vpon them the su­premacie ouer the Church, as they had before ouer the com­mon wealth, they did not mishmash both the states together, and made one confused heape of them both, but left them seuered as they found them, only affording either of them an equall proportion of protection; for that by these two parts, the kings Monarchie is compleat, and himselfe is the head and chiefe Gouernour of the whole and entire bodie of his Realme. For this was exemplaried vnto them in all former ages since the Church and common wealth had any louing and kind cohabitation together, as hath béene before re­membred. And therefore doe they wrong to the ashes of those kings deceased, which by subtill sence and strained in­terpretations, draw these Lawes which they intended for the benefit of the Church, and Church gouernment, to the ouerthrow of the same, as though the Positiue Lawes of the kingdome could not stand, if the Lawes of the Church continued and stood vp right.

Vpon the same words of the same Statute, (if perhaps at any time there grow any controuersie about the limits or hounds of Parishes) they draw the same by like impor­tunitie from the triall of the Ecclesiasticall Law vnto [Page 136] the Common Law, auouching the same also to bee of the Temporall cognisance, and yet Linwod, who liued in the daies of Henry the fift, making a Catalogue of the princi­pall matters, that in his daies belonged vnto the Ecclesi­asticall Courts, reckoneth the bounds of Parishes for one. And very like it is it should so be, for that Ecclesiasticall men first in this Kingdome, made diuisions of Parishes, as by our owne Cronicles it appeareth; and the first practise there­of within this Realme, came from Honorius the fourth Arch­bishop of Canterbury after Augustine, who himselfe died in Registro Eccle. Xp̄i. Cant. Stow. the yere of our Lord God 693. although otherwise the thing it selfe be more auncient, and discends from the councell of Saint Paul, he gaue to Titus, to appoint Elders in euerie Citie: but that Cities and Countries againe are diuided in­to Tit. cap. 1. v. 5. seueral Parishes, it was the ordinance of Pope Dionisius, about the yere 266. & frō him deriued into this & other realms; & the distinction thereof was chiefely deuised that it might be knowne of what congregation euery people were, and that so they might be trained vp in the Schole of godlinesse vnder their owne Pastor or Minister. But that now the diuision of Parishes doth serue to other politike vses, it comes not of the first institution thereof, which was méere Ecclesiastical: but it groweth out of a second cause, that is because beeing so fitly and aptly primarily diuided by Ecclesiasticall men as they are; the Princes therefore did vse the opportu­nitie thereof for Temporall seruices, subdiuiding the same againe into many Tythings or like smaller diuisions, for the more spéedie seruice of the king, and better ordering of the common wealth. Which our auncient Fathers well knowing, neuer called the same in question, acknowledging therein the good they had receiued from Ecclesiasticall men, by this partition of Countries into Parishes: but men of la­ter age being lesse thankfull than they, and loath to séeme be­holding to Ecclesiasticall Courts for any matter of good order and disposition, haue arrogated the same wholy to the Tem­porall Courts; as though the Ecclesiastical Iudge could not as well discerne what two or thrée honest men depose and [Page 137] say, as concerning the limits or bounds of a Parish, as twelue meane men of the countrie, who are vpon like de­positions to giue vp their verdict. But for the limits of Bi­shoprickes, I acknowledge that they are Temporall, for that they were not primarily designed out by Ecclesiasti­call men, and theyr direction, but were assigned to Pro­uinces, or Shires, first described and distynguished by Princes: but for Parishes, neyther reason nor antiquitie concurs with them, that they should be temporall, or that they should be vsurped or challenged to be of the temporall cognisance.

And so much for those Prohibitions, which they com­monly frame out of the 27. and 32. of Henry the eight, not that there are no more but these, but that hauing a taste of these, there may be like Iudgement made of the rest.

Out of the statute of the 2. of Edward the 6. cap. 13. they vpstart many Prohibitions, the first whereof in order of the Statute, although the last in practise is the prohibition of treble damages, vpon not diuiding and setting out of Tythes, or at the least, for the not compounding for them before they be carried away: Which forfeiture they suggest, and thereupon bring a Prohibition, and so draw the whole suit of Tythes into their Courts, contrary to the true mean­ning of this Statute, which would those treble dammages, in case of not iustly diuiding and setting out, or not com­pounding for the Tythes before they be carried away, be no lesse recouerable before an Ecclesiastical Iudge according to the Kings Ecclesiasticall Law, than the forfeyture of double value, by the letting and stopping of them to be caried away, whereby they are lost, with the costs thereon growing, is re­mediable at the same Law: For albeit the clause which is to redresse this wrong, be put after that part of the Sta­tute, which concernes the stopping and letting of Tythes to be carried away, yet when there is as great reason it should stretch it selfe to the first branch of the prouision, as to the second, and the second branch hangeth on the first by [Page 138] a coniunction copulatiue, and there is no hetorogeny or dis­paritie in the matter, whereby it may not be aswell veri­fied in the one branch, as in the other, I see no reason why it should not equally respect them both, according to the rule of the Law; Clausula in fine posita refertur ad om­nia C. 6. tit. 28. l. 1. precedentia, maximè quando non resultaret intellectus contratius iuri, as here it doth not: for the intendment of eyther branch of the Statute is, to procure by theyr seue­rall forfeytures, a iust and true payment of Tythes, the recouerie whereof, as the precise words of the Statute in one member restrayne vnto the Ecclesiasticall Law; so the Identitie of reason in the other member doth confirme it vnto the same Law, for where there is the like reason L. Illud ff. ad l. Aquiliam. or equitie, there ought to bee the like disposition or order of Law.

Beside if the principall cause it selfe be triable in the Ec­clesiasticall Court, why should not those things which hang thereon be tried in the same Court, for they are but as it were accessaries to the principall, and so not only follow the nature of the principall, but also belong to the Court of the principall, and are determinable where the principall is, for otherwise happily there might fall out contrary sen­tences of one and the selfe same thing, the one condemning, the other absoluing.

Further in that Court wherein the course of Iustice al­ready is begun, the cause may with lesse labour and easier expences be ended, being both for the most part determinable by one sentence, than that a new processe thereof should be­gin before an other Iudge, who knoweth little or nothing of the principall matter, and therefore cannot so easilie decide the accessarie.

Lastly, those which take this course, first to surmise a for­feyture, then to draw the originall suit, whereupon the for­feyture grew into question, bring in a proceeding far diffe­rent from the common style of all well ordered Courts, in all Nations, among whom the cognusance of the cause, & triall thereof goeth before, and the forfeyture or execution thereof [Page 139] followeth after: But in this Hysteron proteron, the execu­tion is in the foreward, and the triall is in the rereward: In which doing they deal much like as Cacus the Giant dealed with Hercules oxen, who to thintent that Hercules should not find what way they were gon, drew them backward by the tayle into his Caue; but as that deuise setued not Cacus, but that Hercules had his oxen againe, so it is to be hoped the Reuerend Iudges of the land, will not long suffer this sub­tiltie to preuaile, but as it came in like a Fore, and raigned as a Wolfe, so in the end it shall dye and vanish away like a vaine deuise, much like the destinie of Boniface the eight: for the reuerend Iudges are not only to minister Iustice be­tweene man & man, so that euery man may haue his owne, and none be eppressed of an other, but also they are to carrie an vpright and indifferent hand betwéene Iurisdiction and Iurisdiction, yea, though themselues be parties to the mat­ter in question, so that one Iurisdiction eat not vp an other, as the Locusts in Egipt deuoured vp all the greene things of the land.

An other Rendeuous they make of the words of this Pro­uiso (Law, statute, priuiledge, prescription, or composition reall) as though all which passeth vnder any or these tearmes belongeth to the triall of the Common Law, and not to the cognisance of the Ecclesiasticall Law, and that forsooth, be­cause these words and tearmes are expressed in the Sta­tute: which is much like vnto that, as one would needes haue a house, to be Master Peacocks house, because he saw a Peacock sit vpon the top thereof: But it is not the na­ming of a thing in a Law or Statute, that makes it to be of the Temporall cognisance, or otherwise: but it is the nature or qualitie of the thing named, that rangeth it vnder the one Law, or the other. So that if the matter ordered in the Law or Statute be temporall, the cognisance shall be Temporall, if Spirituall, then the case is determinable in the Ecclesi­asticall Law: for this Prouiso is not prohibitorie, as the last Prouiso of this statute is, whereby Ecclesiasticall Iud­ges are forbidden to hold plea of any thing that is in the said [Page 140] Prouiso conteyned; but it is rather directiue, and sheweth where the Ecclesiasticall Iudge is to giue way to immu­nities, and to pronounce for them: so that for any thing is conteyned in this Prouiso to the contrary, the cognisance of these matters, specially Priuiledge, Prescription, and Composition, still remayneth at the triall of the Ecclesi­asticall Law, as they did before this Prouiso was made De praescripr. lib. 2. tit. 26. De Priuileg. lib. 5. tit. 33. for Tythes, and other Ecclesiasticall dueties, as may ap­peare by the seuerall Tytles in the same Law hereon writ­ten.

And for the other words, Law and Statute therein mentioned: when as the King hath two Capacities of go­uernment in him, the one Spirituall, the other Temporall, and his high Court of Parliament, wherein Lawes are made, doth stand aswell of Spirituall men, as Temporall men, and so ought to stand in both houses, if the auncient booke, De modo tenendi Parliamenti be true and authenti­call, which makes the vpper house of thrée states, the Kings Maiestie, the Lords Spirituall, and the Lords Temporall; and the Lower house in like sort of thrée other, the Knights, the Procurators for the Clergie, and the Burgesses; and his Maiestie hath wythin this Realme aswell Ecclesiasti­call Lawyers, as Temporall, which are no lesse able to iudge and determine of Ecclesiasticall matters, than the Temporall Lawyers of temporall businesse: It is not to be imagined, but as his sacred Maiestie will haue those Lawes to be held Temporall, and to haue their constru­ctions from Temporall Lawyers, which are made and promulged vpon Temporall rights and causes: So also his Highnesse pleasure is, and euer hath béene of all his predecessors, Kinges and Quéenes of thys Land, that such Lawes and Statutes as are set out and publyshed vpon Ecclesiasticall thinges and matters, shall bee taken and accompted Ecclesiasticall, and interpreted by Eccle­siasticall Lawyers, although eyther of them haue in­terchangeably each others voyce in them to make them a Law.

[Page 141] And that the King doth infuse life into eyther of the Lawes, when as yet their substance is vnperfect, and they are as it were Embreos, is in Temporall matters, by his temporall authoritie, and in Spirituall matters, by his spirituall authoritie, for to that end he hath his double dig­nitie in that place, as also the Ecclesiasticall Prelates sus­taine two persons in that place, the one as they are Ba­rons, the other as they are Bishops: So that euen the or­ders of the house doe euince, that they are two sortes of Lawes in that place vnconfounded both in the head and the bodie, although for communion sake, and to adde more strength to each of them, the generall allowance pas­seth ouer them all. And as they rest vnconfounded in the creation of them, so ought to be likewise in the exe­cution of them: and as the Temporall Law sortes to the Temporall Lawyers, so the Spirituall Lawes or Sta­tutes should bée allowed and allotted vnto the Spirituall Lawyers.

And as the nomination of these words Law or Statute in this precedent Prouiso, makes not the Law or statute Temporall, but remayneth wholie Ecclesiasticall, by rea­son of the Spirituall matters it doth conteine, and the po­wer of him that quickneth it, and powreth life thereinto: so much lesse can the inserting of these tearmes Priuiled­ges, Prescriptions, or Composition reall, intitle the Com­mon Law to the right thereof, or the Professors of the said Law, to the interpretation thereof: for that matters of these tytles so far as they concerne Tythes, and other Ecclesi­asticall dueties, haue béen euermore since there hath been any Ecclesiasticall Law in this land (which hath been neere as long as there hath béen any profession of Christianitie with vs) of Ecclesiasticall ordinance, neyther euer were of the Temporall cognisance, vntill new of late, that they transubstantiat euery thing into their owne profession; as Midas turned or transubstanciated euery thing that he tou­ched into gold.

But here it will not be amisse to inquire, (since Tythes [Page 142] came in the beginning of the Primitiue Church, wythin a little time after the destruction of Ierusalem, and the sub­uersion of the Iewes policie, vnto the Christian Church, and Common wealth, void of all these incumbrances, as shall appeare after by the testimonie of sundrie of the aunci­ent Fathers, which were néere the Apostles time) how it comes to passe (since Tythes are no lesse the Lords por­cion now, than they were then, and in the Patriarkes time before them) that these gréeuances haue come vpon them, more vnder the Gospell, than euer they did vnder the Law: for then neuer any Lay man durst stretch out his hand vn­to them, to diminish any part thereof, but he was char­ged Malach. 3. with robberie by the Lords owne mouth; and in pu­nishment thereof, the Heauens were shut vp for gyuing raine vnto the earth; and the Palmer worme and Gra­shopper were sent to deuour all the gréene things vpon the earth. And for Ecclesiasticall men, it is not read any where in the Scripture, that euer they attempted to graunt out anie priuiledge of Tythes to any person, other than to whom they were disposed by the Law, or to make a­nie composition thereof, betwéene the Lay Iew, and the Lords Leuites: euery of the which haue beene, not on­ly attempted agaynst the Church in Christianitie, but executed with great greedynesse: so far worse hath béene the state of the Ministerie vnder the Gospell, than was the condition of the Priestes and Leuites vnder the Law.

The beginning whereof, although it be hard for me to finde out, because there is small memory thereof left in Sto­ries; yet as far as I can by all probabilities coniecture, this great alteration in Ecclesiasticall matters, came by two occasions: the one by the violence of the Laitie, thrusting themselues into these Ecclesiasticall rights, contrarie to the first institution thereof; for when they were first recey­ued into the Christian world, they were receyued and yéel­ded to, for the benefit of the Clergie only, as in former time vnder the Law, they had béen for the vse of the Priestes [Page 143] and Leuites only: The other was the too too much curiosi­tie of Schoolmen, who beeing not content with the simple entertaynment of Tythes into the Church, as the aunci­ent fathers of the Primitiue Church receyued them, would néedes séek out how, and in what right, and in what quan­titie, this prouision belongs vnto the Church, wherein they did by their ouermuch subtiltie rather confound the trueth, than make that appeare they intended to doe. By the first of these was brought in that great prescription, which is called the Prescription beyond the Lateran Coun­cell, whereby Lay men held Tythes in sée, wythout pay­ing any thing therefore vnto the Church; and out of that issued the rest of those pettie Prescriptions, which we now haue, which are nothing else but imitations of the first. By the second came in Priuiledges, Customes, and Com­positions, or if they came not in wholly by them, yet surely were they much strengthned by them; but of eyther of these after in their places. But for that of all these forena­med greeuances in the Church, as far as my trading serues mée, Prescription is the eldest, and first rusht into the Church, and violated the Liberties thereof; I will first be­gyn thereby, and shew vpon what occasion it first seysed vpon the Church, and preuailed against her, and then will I speak of the rest in order.

It is out of question, that from the time of Origen, who lyued within fower score yeares after the death of Saint Iohn the Euangelist, as also did Cyprian, who was his coequall in tyme, and so along by the ages of Chryso­stome, Ambrose, and Augustine, and some of the purer Popes, as Vrban the second, Dyo [...]isius, and Gregoue the great, there was good vse of Tythe in the Churches, where Christian Religion was imbraced, as may appeare by euery of their testimonies, that God had not appointed it to be a prouision onely for such as serued at the Altar vnder the Law, but also was purposed by him from the beginning, to be a maintenance for the Ministerie vnder the Gospell: and therefore Origen in his xi. Hemily vpon Numbers, [Page 144] speaking of Tythes, sayth thus, I hold it necessarie that this Law or precept be obserued, according to the letter: and vp­on the 22. of Mathew, he thinketh Christs words vttered there as concerning Tythe, to be a precept no lesse necessarie for the vse of Christians, than they had bin for the Iewes: and therefore he accounteth Tythe neyther ceremoniall, nor Iudiciall, but morall and perpetuall. Cyprian in his lxvj. Epistle, aduiseth the Clergie of his time, since they had Ty­thes allotted vnto them for their maintenance, they should not absent themselues from Gods seruice. Chrysostome vp­on the viij. of the Actes, vseth this argument to persuade husbandmen to pay theyr Tythes truely vnto the Church, that it is good for them so to doe, for that there are conti­nuall prayers and intercessions made for them by the Mi­nisterie. Ierome vpon Tymothy sayeth, The precept of payment of Tythes, is aswell to be vnderstood in the Chri­stian people, as in the Iewes. Reade Ambrose, vpon his Lent Sermon, and Augustine vpon his xliiij. Homily, and Gregory vpon his xvj. Homily, and you shall finde no lesse plaine places for the continuance of the payment of Tythes among the Christians, than the former were. Adde to these the practise of Dionisius himselfe, who by Ieromes account flourished in the yeare 266. who not only diuided out Parishes, drawing the example thereof from Saint Paul, who first appointed Bishops in Cityes, but also assigned orderly to euerie Parish his Tythes. All which held in the Christian common wealth, in a decent and comely sort, vntill the irruption of the Hunnes, Goathes, and Vandals, vpon the Christian world, who first inuading Italy vnder the Emperour Iustinian, did for many yeares so harrow the whole Countrie, and spe­cially Lumbardie, as that they left not almost a man of excellent Religion any where vnpersecuted, ouerturned Churches, burnt Libraries, ouerthrew Schooles of lear­ning, and to be short, what wickednesse did they not? inso­much as Gregorie the great, being otherwise a verie good man, and one that did relye himselfe vpon the prouidence [Page 145] of almightie God, verily thought and taught that the end of all things was then come: but after those fierce and bar­barous Hospinland [...] [...]r g. n [...]m. [...]. people once set theyr face to goe against France, (which had beene hitherto free from that mundation) which happenned in the daies of King Theodorick, who liued a­bout the 650. yeare of the Incarnation of our Sauiour Ie­sus Christ; Charles Martel the father of Pippin, after king of France, being then great master of the kings house, would not (although otherwise he were a very victorious man, and valiant Captaine) oppose himselfe against them, vnlesse the vnder-clergie of France would be content to resigne euery Gagni [...] lib. 4 Histor. Fra [...]. man his Tythes into his hands, that thereby he might re­ward the Souldiour, and support the charges of the war then present: which the poore Clergie, in respect of the eminent danger, and for that Charles Martell himselfe did solemnly vow and promise that they should bee forborne no longer, than for the time of the war, and that they should be restored vnto them againe at the end of the war, with a further gra­tuitie for their good wil, yeelded most willingly thereunto, specially the Bishops not contradicting it, leauing to them­selues a small portion of their liuing only, during the time of the daunger. Whereupon Charles Martell vndertaking the enterprize, get a mightie great victorie against the enemies, insomuch that hee slew in one battaile 34500. of the Infi­dels: which battaile being happily atchiued, and the danger of the war being past, the poore Clergie men hoping to receiue againe their Tythes, according as it was promised them by Charles Martell, they were put from the possession there­of, and say or doe what they could, their benefices were diuided before their face, in recompence of their seruice, to such of the Nobilitie as had done valiantly in that action, and the same assured to them and theirs for euer in fée. And this is the first violence that euer Tythes suffered in the Christian world, after they left the Land of Iurie, and came to inhabite among the Christians; which al­beit was a nefarious act, and nothing answerable to the late mercie that God had vouchsafed them in conquering of their [Page 146] enemies, yet there wanted not like sacrilegious mindes in all Christian Lands, which did imitate this wicked fact of Martellus, insomuch as the example hereof passed ouer the Alps into Italy, and mounted aboue the Py­renie Hils into Spaine, and within short time after sai­led here into England: in such sort, as that euen to this day sundry Monuments thereof appeare euerywhere in the Land, where any tytle of immunitie is challenged from payment of Tythes, reaching beyond the Lateran Councell, whith can descend from no other head, than from this fact of Charles Martell; neither was there a­ny redresse thereof vntill the said Lateran Councell, be­fore mencioned, which notwithstanding came néere fiue hundred yeares after: for this fact of Martellus was done about the six hundreth and threescore yeare after the Natiuitie of our Sauiour Iesus Christ, but the Councell that reformed it, and was holden vnder Alexander the third, was not celebrated before the yeare of the Incarna­tion 1189. neither was the reformation therof at that time totall nor suitable to the first institution of Tythe among Christians.

For neither could many wilfull and refractarious per­sons, be then brought to obey the Canons of the Coun­cell, in restoring any part thereof againe vnto the Church, although they were charged so to doe vnder paine of dam­nation. Neither did all such as did then restore them, re­store them to the Churches from whence they were taken, which had béene most agréeable to the ordinance of the Church set downe by Dionysius, who first diuided Pa­rishes and assigned vnto them Tythes, as hath béene afore­said; and also to the Scripture it selfe from whence Dio­nysius▪ tooke his light to diuide Parishes and dispose of Tythes as hee did, by which it was not lawfull for him that paid his Tythes to pay them to what Priest or Leuite Deuteron. 18. him liked, but hee must pay them to the Priest or Leuite that dwelt in the place where himselfe made his aboad: but yet this libertie that was giuen them by the Councell [Page 147] then, gaue cause vnto the errour that the common Lawyers hold at this day (not knowing the auncient procéedings of the Church in these cases) that before the Lateran Councell, it was lawfull for euery man to giue his Tythes to what Church he would, which was so farre otherwise, as that be­fore this violence offered vnto the Church, there was a flat Canon, more auncient then the fact of Charles Martel­lus, Leo. 4. 13. q. 1. c. Eccl. which did precisely forbid any man to pay, or a Bishop to giue leaue to any man to pay his Tythes from the baptismall Church to another: and that the contrary was yeelded to in the Lateran Councell, was not that they held it lawfull to inrich one Church in this sort, with the impouerishment of another, but the cause was the hard­nesse of mens hearts, who scarcely could bee wun by this fauour to restore that little againe vnto the Church, that their forefathers had in such abundance taken away from it: and that the Fathers of the said Councell did yeeld thereunto (although it were an inconuenience thus to doe) was for that they did count, although they did admit that for the present, yet there might bee a bet­ter time found out after for the reformation thereof, and so sustained the inconuenience for the present vpon this rea­son; that the vniuersall Church of Christ is one bodie, and euery particular Church a part of that bodie, and so it lesse mattered to what particular Church they were restored, so that they were restored at all: for that by the restitution to one they hoped in time they might with more likelyhoode come vnto the other; for in those things wherein there is an Identitie or like representation of Nature and condition, as is betwéene Church and Church, is easier passage the one from the other than is in those that are of different nature and disposition, as is in a lay man and a Church.

Out of these ruines of these violent and presumptu­ous prescriptions, which haue now obtained strength of a statute in the world haue issued out sundry petty prescripti­ons, which also are confirmed by law and custom as the other [Page 148] were; as the prescription wherein one Church prescri­beth Tythes against another Church, the Law pu­nishing therein the negligence of the one and rewarding the vigilancie of the other: Prescriptions, wherein one Ecclesi­asticall body corporate or politique, prescribeth Tythes or o­ther Ecclesiasticall duties against the Parson or Vicar of the Parish, and the Parson and Vicar againe against them: A prescription whereby a Lay man hauing no right to prescribe Regul. sine pos­ssession [...]d. regu­l [...] i [...]ris in 6. Tythes (because he can in no right possesse Tythes, and pre­scription cannot procéed without possession) doth notwith­standing by pernancie or giuing some part of his ground or pension in money in licu thereof, prescribe a discharge therof: A prescription wherein a lay man doth prescribe the manner of Tything, which albeit by the cōmon Law is counted to be good by paying a thing neuer so small in lieu thereof, yet nei­ther by the Canon Law, neither by the Law of God it selfe, it could euer be lesse than the iust tenth it selfe; so that the manner of Tything with them is not vnderstood in that sence, as the Common Lawyers doe take it, by paying any thing whatsoeuer in place of the iust tenth, but their intend­ment hereby, is that no country can be bound to an vnifor­mitie Li [...]wod Prouin. qu [...]am verbo vn [...]form [...] in Glo. de decim. of payment of Tythes to be vsed euerywhere: but e­uery man is to pay Tythes according to the manner of the Country where he dwels, that is, that one paies his Tythe corne, and binds vp the same in sheaues, another leaues it scattered in the furrowes, another Tythes it in Cocks or Pookes; and this is that, that they meane, that there cannot be an vniformitie of Tything prescribed to euery man after which he is of necessitie to set out his Tyths, but that he may prescribe some other manner of Tything against the Parson or Vicar: but against that vniformitie that the whole tythe [...]d. verbo con­s [...]tudines. should not be paid, was neuer any prescription allowed a­mong them, for they euermore haue beene of this minde con­trary to that that the Schoolemen hold, that Tythes are part of the Morall Law, and not of the Iudieiall or Ceremoniall Law; and that in the Precept of Tythes; there is a double Ca. a nobis de de­cimis in Glos. consideration, one of the honour of God, whereby be retai­ned [Page 149] tythes vnto himselfe, in signe of his vniuersall Lordship ouer the whole world, which is irremissable, the other of the profit or vtilitie of man in that it concerns the prouision of the Minister in all ages, which is vndispensable.

And yet, notwithstanding all this, the Ecclesiasticall Iudge admitteth all kinds of prescription beforenamed, and according to the proofes thercon brought, giueth sentence either to absolution or condemnation: albeit the reuerent Iudges of the Land, vpon an erronious report made in the eight yeare of Edward the fourth, haue a conceipt to the con­trarie, viz. That no Ecclesiasticall Iudge will admit any Plea in discharge of Tythe, or the manner of Tything, as it is in their sence taken; and therfore they hold whatso­euer the defendant doth alledge in his suit for a consultati­on, and namely that the Ecclesiasticall Iudge did allow of the Plaintifes Plea and allegation, and did admit him to the proofes thereon without deniall, are idle speeches, and rather words of course than of effect and substance. And therefore notwithstanding, whatsoeuer is alledged by the Defendant as concerning the Ecclesiasticall Iudges well acceptance thereof, it is counted nothing materiall by the Temporall Iudges, for that they haue a preiudicate opini­on of the Ecclesiasticall Iudge in these cases, and therefore howsoeuer the refusal be, or be not, they grant out their Pro­hibition in these cases. And yet if the Iudges Ecclesiasticall procéedings might be séene and vouchsafed to be read before them, it would bee plaine, there were no such cause of their hard opinion against them; for euerywhere they doe allow such & like allegations. And if perhaps one inferiour Iudge shold make refusal as they pretend, yet could it not be refor­med, by another in an ordinarie course of appeale, but that there must néeds be brought a Prohibition out of the Com­mon law to redresse the same? vnlesse happily they can shew, it is a generall conspiracie in the Ecclesiasticall Iudges, or a Marime in their learning, that they will not or cannot ad­mit any Plea of discharge in this case, which they can neuer doe. And therefore they are to be intreated to change their [Page 150] opinion in this point, and doe not the Ecclesiasticall Iudges that wrong, as to charge them with such an imputation, whereof their whole practise is witnesse to the contrarie: for it is vnworthy such mens grauitie as theirs is, who pro­pound vnto themselues the inquirie of the truth in all mat­ters, thus to be misconceiued and masked in an errour, and that for so many yeares, and not to bee willing to heare the contrarie, which is an obstinacie in policie no lesse indurat, than the Papists is in Religion, who see the truth and will not beleeue it. And so far as concerning Prescriptions and the first cause and beginning thereof.

Now it followeth I speake of Priuiledges which are immunities graunted vnto priuat men beside the Law.

Of these, some are very auncient, such as true zeale toward the Church bred, and the iust admiration of the holy men of God for their sanctimonie of life, their great knowledge in the word of God, their great patience in persecution for Christ and his Gospell, the vigilancie and care they had in their Office, stirred vp both in Prince and people. So Constantine the great, being rauished with the loue of Re­ligion, and the good opinion he had of the Ministers of his time, erected Churches, and endowed them with large pos­sessions, and graunted them sundry immunities, whereby they might more securely intend to the preaching of the word of God, and the winning of soules to the Christian con­gregation, wherein they laboured with all their might and power, God still adding to the number of the Elect. Neither did he this alone in his owne person, but he also gaue leaue to all other of his subiects that would doe the like: whereupon L. 1. C. de sacros. Ecclesiis §. si qui [...] authent. de Ecclesia. the Church was so inriched within a short time, that as Moses in the building of the Arke, was faine to make Pro­clamation, no man should bring in more towards the build­ing thereof, the people bringing in continually such great a­bundance of all things necessarie towards the furnishing thereof, as that there was enough and much to spare: So also Theodosius the thirtéenth Emperour after Constantine, [Page 151] (although otherwise a most louing and fauourable Prince towards the Church) was faine to make a Law of Amortisa­tion or Mortmaine, to moderate the peoples bounty to­wards the Church; as did also many wise Princes in other Nations vpon like occasion, and in imitation of this Act of Theodosius, many yeares after; and among the rest, diuerse Magna charta. cap. [...]6. W. 1. [...]. 31. an. 13. E [...]. 1. Princes of this Land did the like, vpon the dotage of the people towards the Religious Parsone, & specially towards the foure Orders of Friers that were then newly sprung vp in the world. But yet this Act of Theodosius was done with the great dislike of these blessed men Ierom and Am­brose, who liued in those daies, for that Ierom thus com­plaineth of that Law to Nepotian: I am ashamed to saie it, the Priests of Idols, Stage-players, Coach-men, and Common Harlots, are made capable of Inheritance, and receiue Legacies, onely Ministers of the Gospell, and Monkes are barred by Lawe thus to doe; and that not by persecutors, but by Christian Princes, neither doe I com­playne of the Lawe, but I am sorie wee haue deserued to haue such a Law made against vs: In like manner, and vpon the same occasion doth Ambrose deplore the state of the Clergie in his one and thirtieth Epistle: Wee count it (saith hee) no iniurie, in that it is a losse, wee are not grie­ued that all sorts of men are made capable of Wils, none ex­cepted; how base, prophane, or lauish of his life or honestie soeuer hee bee, but I am sorie that the Clergie men only of all sorts of people, are bard the benefit of the Law that that is common to all; who notwithstanding, onely pray for all, and doe the common celebration of the Seruice for all▪ So far they.

And yet whosoeuer lookes into this constitution, where­by it was forbidden that any man should passe any Lands or other immoueable possession vnto the Church, without the Princes leaue (for that thereby the things that are so passed, come as it were, into a dead hand, which holdeth surely fast that it once apprehen­deth, neither easily parteth with it, so that it cannot [Page 152] without much difficultie bee reduced and brought againe to the commerce and common vse of men) shall find it was ra­ther for the benefit of the common wealth, than for the dislike of the Church, it was so ordered.

For if that course had béene holden on still, the greatest part of the liuelyhood of the common wealth, woule in short tune haue come vnto the Church, and so Lay men should not haue béene able to haue borne the publicke burthens of the common wealth; which it concerns Seculer Princes to be carefull of, and to foresée that by ouermuch bountie towards the Church they impouerish not their owne state, and loose the rights of Escheats, Primer season, and other Priui­ledges of the Crowne in cases of forfaiture, and specially make bare their Lay subiects, vpon whom a great seruice of the common wealth doth lye. And yet otherwise the benefi­ciallest state of this Realme vnto the Prince is the Clergie, as from whom the King hath a continuall reuenew in Tenths, and is déepest in Subsidie, and not the least in all other extraordinarie charges according to the proportion of their place. And therefore, as the King is to maintaine the one, so he is also to cherish the other, and not to suffer their state in any sort to be diminished, for that all other states are made for the seruice of the Church, and the Church again for the benefit of them.

But this was none of those Priuiledges I spake of, for these are more auncient than they, and graunted out vpon better deuotion than the other: but after this, the zeale of Re­ligion being almost extinguished in the Christian world, partly by the great vproars and tumults that were in euery Country, by the influence of one barbarous Nation or other into them, who pulled downe Churches faster than euer they were built, and made hauock both of Priest and people, that professed the name of Christ, partly by the heresies that rose euery where in the Church in those daies, which distracted mens minds, and made them wauer in the constancie of their Religion, it was reuiued againe vpon this oc­casion.

[Page 153] One Benedict, who otherwise had béen a man of action Hospinian de Origine Mo­nachatu [...]. in the Common wealth, (that Benedict which was as it were the Father of all those that professed a Regular life, within the West part of Christendome; for before his time the Monkes of the West Church, serued God fréely a­broad, without being shut vp in a Cloister) he I say finding himselfe, wearied with the tumults and broyles which hap­ned vnder the gouernment of Iustinian, 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 giue himselfe wholy to the seruice of God: where when he had a while remayned, he grew so famous by his Christian exercises of fasting and prayer, and the good and holsome exhortations that he made to those that resorted vnto him, that within a very little time after, there was great confluence of people vnto him, not only from di­uers parts of Italy, but euen from sundry other parts of the world, so that within a short time they grew into fraterni­ties vnderneath him, to whom he gaue rules to liue by, to the imitation of that, that Saint Basill did in the East Church: to which his disciples submitted themselues with all ala­critie, leading a life far different from the common sort of men, denying vnto themselues all those ordinary delights that other men doe commonly take, out of meat, drink, ap­parell, mariage, Temporall preferment, & such other things which wordly and carnall men séeke for verie gréedily, hum­bling themselues only to God, and the rule of their Master. Which thing bred such an admiration of him, and of his Schollers, that not only many other orders sprang out from them within few yeres; as the Premonstratenses, Clunacen­ses, Templarians, Hospitallers, Cystertians, and the order of Saint Iohns of Ierusalem, but euen Popes, Princes, and people were wholy carried away with the wonderment of them, insomuch as euery of them did as it were striue, who might shew themselues most kind vnto them; whereupon Princes built them houses, euery one in his kingdome, as Clito Ethelbald king of Mercia, buylt the Monasterie of [Page 154] Crowland here in England, of black Monks, vnder the rule of the said Benedict, in the yeare 716. Popes and Princes graunted them priuiledges, so far as it concerned eyther of their particulers: the Clergie, Nobilitie, and People, con­ferd goods and lands vpon them, euery one according to his abilitie.

In this zealous bountie of euery degrée towards these new sort of men, there were two vndigested Priuiledges graunted them, both of them so hurtfull and iniurious to the Church of God, as neuer any was the like. The one was the annexation or appropriation of presentatiue Benefices to these Religious houses: The other, the fréeing of such lands or hereditaments, as they held in sundry Parishes from the payment of Tythes to the Parsons and Vicars thereof; to both of which the Scholmens diuinitie gaue great aduan­tage, as shall be shewed hereafter.

Eyther of these had their beginning of one roote, that is to say, of this false ground, that Preaching which is the most true, and most naturall foode of the Soule, in a congregation that is come to the profession of Religion already, & knowes but onely the Articles of the Christian Faith, the Lords Prayer, the ten Commaundements, and other principles and Rudiments of Christian Religion, is nothing so neces­sarie for the saluation of a mans Soule, as Prayer is: be­side, that preaching oftentimes giues more cause of Schisme and dispute in Religion, than it doth of profiting & edifying the Soule: and therefore it was not permitted by the Pro­uinciall constitutions of this Realme, that Parsons or Vi­cars Linwood puin. eisdem, de offi [...]. Ar [...]hidi­aconi [...], et ca. ignorantia Sa­cerdotum, de officio Archi­presbyteri. of Churches, should expound or preach any other mat­ter or doctrine, than the Lords prayer, the ten Commaunde­ments, the two precepts of the Gospell, that is, the loue of God, and the loue of a mans Neyghbour, the sixe works of Mercie, the seuen principall Vertues, the seuen Sacra­ments, (for so many then the Romish Church held) the se­uen deadly Sinnes, with their progenie, and this to be done vulgarly and plainly, Absque cuiuslibet subtilitatis textura fantastica, for so they call learned and orderly Preaching; [Page 155] whereas notwythstanding Prayer is euermore profita­ble, euery where necessarie, and neuer dangerous: Fur­thermore, Preaching onely profiteth those, that be present and doe heare it, and attend vpon it: but Prayer is auail­able, euen to those that be far distant, yea, though they be in the remotest place of the world. By which, and other like arguments, they translated away that maintenance that was prouided for the home Pastors, (who by Gods owne institution, were to watch ouer their Soules) to for­rein and strange Guids, who neuer communicated to their necessitie in any heauenly comfort, but only tooke the milke of the flock, and fed themselues withall. But by this pre­tence of theirs, ought not Preaching to haue béen disgra­ced, for albeit Prayer be a necessary péece of Gods seruice, and so necessary, that the Soule of man is as it were dead without it; yet is it not equall to the dignitie of Preaching, which God hath ordeyned to be the onely meanes to come to Saluation by: for Faith comes by hearing, and hearing by the word of God, and without Faith it is impossible to be saued: for Faith is a gift that purifies the hart, and makes a mans prayers acceptable to God; and therefore neyther of them ought so to take place, as that the one should shoulder out the other, but they ought so to go hand in hand together, as that one should help, assist, and countenance thother.

But how these annexations of Benefices first came into the Church, whether by the Princes authoritie, or the Popes licence, it is verie disputable, and there are reasons on both sides for to shew the same.

For whereas there are reported by Ingulphus Abbot of Crowland before mentioned, to haue bin viij. Churches, be­side the Patronage of some other, annexed and appropria­ted to the said Abbey, by sundry Saxon Kings, it doth not appeare by oght that I can find; whether they were done by the soueraigne authority of the kings alone, to the imitation of that, that was done by Martellus, who made all Christian Kings to sinne in this point, or that it was done by any o­ther [Page 156] Ecclesiastical authority, for that there is nothing extant for the allowance thereof, saue the seueral Charters of those auncient Kings only: and that I should be rather induced to beléeue that it was done by those Kings authoritie only; I am thereto persuaded, that I find William the Conque­ror, immediatly vpon the great victorie that he got ouer this kingdome, to haue appropriated thrée Parish Churches to the Abbey of Battaile, which he buylt in memorie of his Conquest. And whereas William his sonne had depopulated & ouerthrowen sundry Churches in the new Forrest, Hen­rie his brother by his Letters Patents gaue the Tithe ther­of to the Cathedrall Church of Sarum, and annexed there­to xx. other Churches in one day, if the copie of that Re­cord that I haue séene, as concerning these appropriati­ons, be true: yea the matter was gon so far in those dayes, that euen Noble persons, and other meaner men, would commaund Corrodies and Pensions to their Chapleines, and other seruants, out of Churches, and could not be re­dressed, vntill such time as there was made a Statute to A [...]no 1. Edw. 3. cap. 10. reforme it.

On the contrarie side, that I should take it to be a deuise of the Pope, I am moued thereto, that I find euery of these orders of Religious men were confirmed by one Pope or other; and as they confirmed them, so it is like they made prouision for them, and that most especially this way; and that chiefly after the Lawes of amortisation were deuised and put in vre by Princes: and thereupon it is that we finde sundry sorts of annexation made by Popes & Bishops vn­der Linwood. c. licet bona memoria. gloss. in verb. asserunt non ligari. de lo­cato & con­ducto. them, euery one in their Diocesse: as some were made so far as concerned the Patronage only, & then had the Monks therein presentation only: some other were made pleno iure, and then might the Monkes both institute & destitute therin without the Bishop, and turne all the profit thereon to their owne vse, reseruing onely a porcion to him that should serue the Cure there: some other Churches did they graunt simply to them, without any addition of full right, or otherwise, and then if the Church were of their owne foundation, they [Page 157] might chuse, the Incumbent being once dead, whether they would put any other therein, vnlesse perhaps the same Church had people belonging vnto it, for then must they of necessity still maintaine a Curat there; and of this sort were their Granges & Priories, & those which at this day we call Donatiues: but if it were of another mans foundation, then was it otherwise. To this also I adde that, that the Pope euery where in his Decretals, arrogateth this right vnto himselfe, as a Prerogatiue of the Apostolike Sea, to graunt these priuiledges to Religious orders, to take and receiue Benefices at lay mens hands, by the mediation of the Dio­cesan whose office it was to be a meane betwéene the Religi­ous house and the Incumbent, for an indifferent rate that neither of them should presse too much the one vpon the other: Gloss. in verb. de Decim. and therefore in the beginning, the vsuall rate that they set downe betwéene the beneficed man, and the Religious person was the one halfe of the Benefice, for that it was not thought that the Pope would charge a Church aboue that rate. But after by the couetousnesse of Monkes and Friers themselues, and the remisnesse of the Bishops, who had the managing of this businesse vnder the Apostolike Sea, the Incumbents part came to so small a portion, that Othobon. c. quo­niam de Appro­priationibus Ec­clesiarum. Vrban the fifth, by Othobon his Legate here in Eng­land, in the yeare of Saluation 1262. was faine to make a Legantine, whereby he forebad all Bishops of this Land to appropriat any more Churches, to any Monasterie, or other Religious houses, but in cases onely, where the per­sons or places to whom they were appropriated, were so poore, as that otherwise they were not able to susteine themselues; or that the cause were so iust, that it might be taken rather to be a worke of charitie, than any inforcement against Law: and that beside with this Prouiso; as that if the new Proprietaries within sixe Monethes next after, should not set out a competent porcion for the Minister, of the fruites of the Benefice, themselues should assigne out a sufficient maintenance thereout, according to the quantitie and qualitie thereof; Which constitution, be­cause [Page 158] it tooke not that effect that was hoped, there were two Statutes made, the one by Richard the second, the An. 15. Rich. 2. cap. 6. An. 4. H. 4. cap. 12. other by his successor Henry the fourth, both for the conue­nable indowment of the Vicar, there to doe diuine Ser­uice, and informe the people, and to kéepe hospitalitie a­mong them.

Albeit most of these Appropriations were principally in Monkes and Fryers, and such other Religious persons, yet were not Bishops Seas, and Cathedrall Churches, altogether frée from them, as I haue before shewed in the Cathedrall Church of Salisburie, to whom Henry the first appropriated néere twentie Churches in one day: And the Sea of Winchester, which hath had two Benefices aunci­ently annexed to the Bishops table, the Parsonage of East­meane, and the Parsonage of Hambleden. Neither do I doubt, but the like was done in other Bishops Seas, and other Cathedrall Churches, if I had as good instruction to report of them, as I haue had information to speake of these.

And so far as concerning the first effect of Priuiledges, whereby sundry fat Benefices haue béene iniuriously dra­wen from their owne Churches, and vnnaturally appro­priated to Monkries and Fryeries, and other seculer and Religious places; which as I haue said, hath béene partly the act of Lay men, and partly of Ecclesiasticall men. Now followeth the second effect hereof.

And that is, the exemption of these Religious mens pos­sessions from payment of Tythes, which is a priuiledge of the Pope alone: for Monkes aunciently paied Tythes of Ca. ex parte tua. gloss in verb. laborum de de­cim. their land, before these priuiledges, as other Lay men did. But Pascalis the second, casting a more fauorable aspect towards Monkes, and other Religious men, than any of his predecessors before time had done, did order together with the Councell of Ments, That neyther Monkes, nor other Religious persons, or any other that lyued in com­mon, should pay Tythes of their owne labors: Which im­munitie Fod. in deā gloc. verb. laboris. in processe of time, Pope Adrian recald, so far as [Page 159] it concerned the rest of the Religious persons, and limit­ted it onely to the Cystertians, Hospitallers, Templers, & those which were of the order of S. Iohns in Icrusalem, leauing onely to the rest fréedome from paying Tythes of landes newly broken vp, and laboured wyth their owne hands, and of their garden, and of their cattell. In which state the matter stood vntill Innocent the thirds dayes, who although he were in no other point of better mould than the rest of the Popes were; yet was he in this more pittifull towards poore Incumbents of Parish Churches, than any of his predecessors had béene; who séeing hereby the incon­ueniences of beggery and ignorance that grew vpon sun­dry of the Parochian Priestes, by meanes of these Priui­ledges, ordered in the second Lateran Councell, holden in the yeare of grace 1120. that for such lands as any of the Ca. nuper Abba­tes, de decimis. said fower Priuiledged orders, should acquire and get af­ter the said generall Councell, they should pay Tythes, or compound for them as other men did; yea though they la­boured them wyth their owne hands, or manured them at their owne charges. Which consideration also moued Henry the fourth, a king of this Realme, to prouide by Sta­tute, first, that such of the order of Cystertians, as had pur­chased An. 2. H. 4. ca. 4. Bulls to be discharged of Tythes, should be re­duced into that state, as they were before: Then, that no An. 7. H. 4. ca. 6. person Religious or Secular, by colour of any Bulls, con­teyning any priuiledges, to be discharged of Dismes per­tayning to any Parish Church, not put in execution, should put the same in execution, or should purchase the like in time to come.

Whereby it is verie probable, that few of those landes which are now challenged to be frée of Tythe by the Sta­tute of the xxxj. of Henry the eight are frée of Tythes in 31. Hen. 8. cap. 13. déed: for that they are no otherwise fréed by that Statute, than that they were first fréed in the Religious mens hands; so that if they were neuer fréed in their hands, they re­maine still charged with Tithes.

But betwéene this interruption of not paying of Tythes [Page 160] wrought by Innocent, in the second Lateran Councell, and the dissolution of Monasteries effected by Henry the viij. are thrée hundred and thirty yeares, and betwéene the foresaid Statute, made in the seuenth yeare of Henry the fourth, and the subuersion of the Monasteries brought to passe by Henry the eight, as hath bin before remembred, are one hundred and thirty yeares. In which long distance of time the one from the other, it is not to be doubted but many of those Religious houses were built and indowed, which by no possible meanes could be partakers of those priuiled­ges which were abolished before the time of their erection: neither was there any reuyuing or renewing of these pri­uiledges by any Pope of Rome, or Prince in this Realme, after they were thus first repealed by the Pope and Prince aforesaid, for oght that I haue read, or heard to the con­trarie.

So that if this matter were well vnderstood, and the ages and orders of those Religious persons from whom the clayme is made, were rightly conceiued, it would giue great light vnto the Iudges to discerne what lands were exempted from the payment of Tithes, and what not: for now many are pretended to bée exempted from Tythes, which neuer were of any of those fower orders, and if they were, yet were they not before the time of the interruption, but since.

And so far as concerning the second effect of these Priui­ledges. Now it followeth that I speake a word or two of compositions, which are agréements betwéene persons liti­gant, whereby eyther partie may know their owne right, and not striue againe about doubtfull matters. As good Lawes haue growen out of ill manners, so compositions haue risen out of quarrels, caused by priuiledges, and other like exemption for matter of Tythe: whereof although there be no speciall Treatise in the Law, as there is of the rest, yet they are so often mencioned by the Decretals them­selues, as that it is not to be doubted, but that they are part of the Ecclesiasticall Law, aswell as the rest are, & that [Page 161] they are the deuise of the Ecclesiasticall Lawyers, and not the conceipt of the Common Lawyers, the forme and stile of them doth wel shew, which sauoureth wholly the maner and phrase of writing of the Ecclesiastical men, & hath no touch of the Common Law at all. And if the deuise bee the Ecclesi­astical mens, as all Bishops Registers euery where do shew, which are full of these compositions, why should not also the totall be theirs, that euery cause might haue his ending, where it hath his beginning? Eorum enim est legem interpre­ta [...]i, quorum est con [...]r [...].

And these are those grieuances of the Church, which I said the Schoolemens curiositie in their distinctions, either inuented, or gaue strength vnto them after they were inuen­ted; but inuent them all I thinke they did not, for that these Acts of appropriations of benefices were somewhat more an­tient than the Schoolemen themselues are: but the rest of the Priuiledges, they either came into the world with them, or insued anon after them, so that I may well say they much strengthened this iniquitie. For when that euery man vn­derstood by their Doctrin the quotitie of Tythes, or the tenth part thereof was not precisely by Gods Law (since the light of the Gospell sprang out as the day light vnto the Christi­ans, who before sate in darknesse, and the shadow of death) but that it was by the institution of the Church onely; then began they freely to spoyle the Church, of her due Tythes, and to giue away that to one Church, that was due to ano­ther. And the reason that persuadeth the Schoolmen to this, was that after much adoe, diuiding the whole Law of Mo­ses into thrée parts, the Morall, the Iudiciall, and the Ce­remonial, they did conclude that there were thrée parts like­wise in the Tythe, the one Morall, which was a necessarie maintenance for the Minister, and therefore was naturall and perpetual: the other Iudicial, which was the number of ten, fit as they taught for that people onely, and therefore was positiue and remotiue: the last Ceremoniall, and that was the mysterie contained in this quotitie, or number of Ten, which being but a shadow onely, was abolished with [Page 162] the Law it selfe: wherby they did (infer the precise number of Ten being taken away, by reason of the Ceremonie it selfe) a competencie now onely doth remaine for the Minister out of the Tyths: which opinion hath bin wel confuted of late, by a very learned man, as his Treatise therof doth well shew; but I fear with lesse successe than the truth of y^e cause doth de­serue, for this is a point that toucheth many mens priuat be­nefit, & therefore shal haue no more fauor than it néeds must.

But the deuise whereon the Schoolmen did build this Ce­remonie Thom. in quod­ [...]bet part. 3. art. 6. q. 6. is this, that as all Digits vnder ten are vnperfect, & do tend to ten as to their perfectnesse; so all men, saue Christ alone, are vnperfect & haue need of Christs righteousnesse to make them perfect: Which Abraham well knowing, paid Tythes to Melchisedech, who was the figure of Christ, as therin acknowledging that himselfe & al mankind, who were represented by the other nine Digits were vnperfect by rea­son Idem part 22. q. 87. art. 1. of Original sin dwelling in them, & therefore had néed to be perfected by Christ who was figured by the tenth number.

All which that we may grant to bee true betwéene Christ and all mankind, as it is true indéed, and that ten is the pefec­tion of the other numbers vnder ten, for that all the rest of the Digits, when they come to ten, returne backe againe to ten, and are multiplyed by the coupling of themselues with ten: yet where is this proportion betwéene Christ and ten in the Scripture, that should make this Ceremony: which if it cannot be found any where, nor any consent of the primi­tiue Church shewed for it, as I thinke it cannot bee, then may it with as good authoritie bee reiected as it is receiued. For albeit Thomas Aquinas himselfe were t [...]a [...]med a Sera­phical Doctor, that is, such a one as had a sence in the vnder­standing of the holy Scripture aboue all others of his age, and that he did much profit the study of Diuinitie, with his wittie distinctions: yet is not his authoritie such, that it must prcuaile in cases of Diuinitie, without the authoritie of the scripture & the consent of the ancient fathers of the primitiue Church, interpreting this péece of Scripture in that sence as he doth, which wold make aswéet harmony if it might be had.

[Page 163] And therefore as to my poore sence, better said a learned Iun [...]us in. 2. c. 3. Gen [...]s [...]s. man of our time to this point, writing vpon the Sabbaoth day in the second of Genesis, which may be also proportiona­bly vnderstood of the tenth, for that they were both before the Law in their very number, and were but repeated by Moses vnder the Law, because they had bin approued by God before the Law in the selfe same numbers: and that which he saith of the Sabbaoth is this, that albeit it hath a Ceremoniall de­signation of the day, that is, that it doth figure vnto vs our perpetual rest, which we shal haue in heauen, after that there is a new heauen & a new earth, yet there is therin two parts, the one naturall the other positiue, as that God should haue a seuenth day of worship, this is Naturall, & therfore doth re­maine, because it is perpetuall: but that this seuenth day of the Lords worship shold be y^e seuenth day after the Creation of the word, this was positiue, & therfore was changed by the Apostls & blessedmen of the prsmitiue church into the seuenth day after the resurrection of our Sauiour Iesus Christ: which as it is verified by him in the Sabbaoth, so may it be in like sort vouched by like reason in the tenth, wherein also by like semblance there are two parts, the one naturall the other po­sitiue. The naturall is this; that God out of all the fruits of the earth, the increase of cattell that are worthy of him and fit for mans vse, should haue a tenth, both in the acknowledge­ment of his vniuersall gouernment ouer vs, and also for the prouision of his ministers, & therfore this remaineth: and in that sence imediatly after the dissolution of the Iews policie, the good Christians of the Primitiue Church as soone as they could get any outward forme of a Church, & peace from perse­cution receiued it in the very quotitie, as a thing no lesse be­longing to their ministers, than it did appertain to y^e priests and Leuites of the Law: But that the Lord annexed these tyths by Moses to the Priests & Leuits for their maintnance during the time of the dispensing of the mysteries vnder the law, this is positiue, & therfore changed by the good christians in the primitiue church from the Iews Ecclesiastiques to the Christian Ecclesiastiques.

[Page 164] Neither can it be thought this number came from the Iu­diciall part of the Law, as a fit proportion to maintaine one Tribe, out of the reuenewes of the other eleuen Tribes: for that this number or quotitie was reuealed to be Gods long before the Law, and before there was any such diuision of Tribes among the people of Israell; which yet were not, but were parted afterward by Moses into families according to the number of the Twelue sons of Iacob. And therefore it is not to be presumed that the Law which came long after, im­printed a forme vpon that, which was so long in being before there was any Law or ceremonie. But as the Apostles or prime-Christians, whenas they did first change the day of the Sabbaoth by diuine inspiration or otherwise, from the day of the Creation, to the day of the Resurrection, durst not substitute any other day into the place of the first day than a seuenth; for that the Lord had reuealed his pleasure in many places of the Scripture as concerning that number, for his day of worship, so that no other day could be appointed for his day of worship than a seuenth: So neither durst the good Christians of the Primitiue Church (moued no doubt with no other instinct than the other were, when they translated this prouision of tythes for their ministerie from the Iewish Church vnto their owne Church) change the number of ten into another number beside more or lesse: For that God had no lesse manifested his will in sundry parts of the Scripture. as concerning this number, to be a number for the mainte­nance of his ministerie, than he had declared his pleasure as concerning that other number to be a day for his honour, chalenging it euerywhere in the Scripture, in the very quo­titie for his owne right, and counting it robberie if it were at any time withholden from him. And therefore it may be well thought, the Schoole-men herein did great wrong to the Church, who by their quaint distinctions brought this cer­taintie to an vncertaintie, which is no where to be found in the Scripture. Which I am more bold to speak, for that I sée some haue trod this path before me, and shewed by good de­monstration, that the turning of this quotitie into a compe­tencie [Page 165] is a thing nothing warrantable by the word of God, but that the quotitie ought stil to stand as a perpetuall right due to God and his Church. But hereof hitherto.

And so hauing passed ouer this whole prouiso of Law, Sta­tute, Priuiledge, Prescription, and Composition, I might well leaue the turning of this stone any more, but that yet there remaineth one Prohibition of prescription to be hand­led, which in my fancie is worse than all the rest, for that it draweth away from the Parochian Church her maintnance, and transferreth it vpon lay men: and that which worse is, it makes Bishops to be instruments hereof, who are to be Pa­trons and defenders of Churches, and not pillers or pow­lers of the same. And yet the authors thereof doe imbrace it and kisse it as a golden birth, or as if that Iuno her selfe had béene present at the Natiuitie thereof. And the deuise is this.

A Bishop being owner of a Manor yet not diuided into Te­nancies, nor hauing any Parsonage erected vpon it, ordei­neth the one and diuideth out the other: here the Bishop being seised in the whole Manor before the said diuision, be­cause he is a clergie man, is supposed to be in possession aswel of the Tythes as of the Manor it selfe, and therefore after creating a Parsonage, and diuiding out his Tenancies, may retaine and kéepe to himselfe, and his said tenants, so much of the said Manor discharged of tythes as him listeth, and as­signe ouer the rest for the maintenance of the Minister, and that his tenants after may challenge exemption from tythe, as the Bishop did, for that they were exempted by his capa­citie while they were in his owne hand.

Neither of which is so by Law; for insomuch as a Bishop is an owner of a Manor, and is a prime-founder of a bene­fice, he hath no more right to the Tyth thereof than a méere Lay Pat [...]on hath, who for his zeale to the Church, and to incourage other to be like affected to Gods Religion as him­selfe is, may haue some small pension assigned him and his for euer by the Bishop out of the same benefice, in acknow­ledgement of the erecting, founding, or endowing thereof: [Page 166] but for any portion of Tyths to him or his, he could neuer re­tain any, nor can to this day, neither yet can the Bishop him­selfe, vnlesse perhaps he will be like to Ananias and Zaphira, Actorū 5. which held part of the price of their ground from the Lord, and were worthily punished for the same. And as they can­not detaine it themselues, being spirituall men, so much lesse can they passe it ouer to any Lay man, for that Lay people neither by Gods Law, neither by the Canons and Decrees of the Church, were euer capable of them: yea, it was so Ca. quamuis de decimis. & ibi Abnum. 5. far off, that euer any Bishops durst infeoffe any Lay man in Tythe; that who so did it, was to bee deposed and excom­municated vntill such time as hee restored the same to the Church againe. And to say the truth, Tythes were neuer Ca [...]a nobis de decimis. at any time in Bishops as in Fee, but in vetie few ca­ses, as were the Bishop had a Parish himselfe distinct from other Parishes, for sundry Bishops in sundry places had so, and then the Tythes of the Parish did belong vn­to them in such sort as they doe now belong vnto the In­cumbents thereof: Or if the Tythe were not within any Parish, for then in like sort it did belong vnto the Bi­shop of the Diocesse, in whose Territorie it was, albeit now within this Realme it belongs vnto the King: Or where the Parishes were vndistinguished, for then were they the Bishops, not to conuert vnto his owne vse, but to diuide among the Ministers and Clerkes which labou­red in the Diocesse vnder him, in Preaching, Teaching, Ministring of the Sacraments, and executing of other Ecclesiasticall functions, euery one according to his desert: Or that it were the fourth part of the Tythe, for then did it belong to the Bishop in Law, towards his owne re­liefe, and the repayring of the Parish Church where they grew, and not to confer or bestow the same, as him thought best; which notwithstanding now also is growne out of vse, and nothing left vnto the Bishop from the Churches of his Diocesse, beside his Procurations and Synodals to be paid by the Incumbents in the time of his Visitation. Be­side which cases, it cannot bee found that euer any Bishop [Page 167] had to doe with Tythe, much lesse to alyen, dispose, and transferre the same as him listed, and to whom him listed.

For it is verie certaine, Bishops indowments themselues, in the beginning of the Primitiue Church, stood not in Tythes, but in good Temporall and finable Lands, which gratious Princes and other good benefactors of former A­ges C. de sacro sanct. Eccl. & de Ep̄is. & clericis tot. ti­tul. bestowed vpon them, as it doth appeare out of the first booke of the Code; whereas sundry Lawes of Constantine the great, and other gratious Emperoues, euen vnto the time of Iustiman himselfe are recorded, both for the conser­ring of Lands vpon the Church, and those, such as should neither be barren, neither charged with Statutes, or other debts of the Exchequer, as also for the conseruing and Authent. m [...]lto magis C. de sacro sanct. Eccle. safe kéeping of such Lands as were in such sort conferred and bestowed vpon them: & is manifest also out of our owne Stories, both in Britans time, during whose Raigne there Iocelin of [...] in his booke of British Bishops. Stow fol. 37. are reported to haue beene fiftéene Archbishops in the Sea of London well indowed with possessions, and if they were Archbishops, then must necessarily also follow there were Bishops, for that these are respectiue one to the other. The like is written of the Sarons Raigne, vnder whom the Hen. Hunting­ton lib. 3. Sea of Canterburie, the Sea of London, the Sea of Ro­chester, and the Sea of Yorke (for these foure were first set vp againe after the Sarons first receiued the faith at the Preaching of Augustine, Melitus, and Iustus Paulinus) are namely reported to haue béene inriched with large Do­minions Charta regis [...] ­the [...]be [...]i, & charta Wi [...]l. pri­mi. St [...]w fol. 77. and possessions, giuen to euery of them for their maintenance. And what course hath beene held with Bi­shopricks erected since the Conquest, the ruinated state of them and others doe shew, among whose auncient liue­lod is not to bee found any indowment by Tythes, but such as of late haue come vnto their hands, and that for the most part, by change of their good finable Lands for im­propriat parsonages. And therefore much to blame are some of our time, who (whenas their predecessors in former ages neuer admitted of any impropriat parsonage into [Page 168] their possessions, but only in such cases as haue béene before remembred) for the name and place of a Bishop will be con­tent to make Glaucus change with Diomede, that is, giue Homer. Illiad. 6. their golden Armour for the others brasen Armour: or doe like as Roboam did, who in sted of the golden shields that his Regum 1. c. 1 [...]. father Salomon did hang vp in the Temple, put in their places Shields of brasse: for the change is no better, and so well know they that procure the same, otherwise would they neuer so instantly desire it.

And therefore an vnsutable deuise was that, and contrary to the course of former Ages, which was procured in the first yeare of the late blessed Quéene, not (as I thinke) by her owne séeking, for she (good Ladie) did in this as she was di­rected, but vpon some other policie; that it should bee lawfull for her to take away so much fineable Lands from any of the Bishops as her pleased, and to giue them back againe in lieu thereof Tenths, or Parsonages impropriat: which hath patcht them vp againe but with vnsutable péeces to their coate; whereby they are both brought into obloquie, as though they detained the due prouision of the Parochian Church from it, and are set in a way ready to be ouerthrowne if euery bird haue his owne fether againe. Authent. de nō alienand, aut permutand. reb Eccl. &c. § si minus.

And therefore those good Emperours are most worthy of commendations, that when they had any occasion to make change of Lands with the Church, would still allow them the like in value or better: for a small gaine it is vnto a Prince for a few thousands of increase of temporarie benefices vnto his Exchequer, to draw a perpetuall losse vpon a Church or Bishoprick: for so déere ought the Spirituall state to be vnto a Prince (vpon whom God hath bestowed so many King­domes, and other things of price as hee hath done, and put such an infinite number of people in subiection vnder his féete) that he would not in any case be hard with God, but thinke euery greatest liberalitie towards God & the Church to be the best.

For certaine it is the Empire and Church doe not much Die. § si minus Authent. vt sup̄. differ the one from the other: for as the Empire doth gouerne [Page 169] the outward man, and frameth him by outward policie to be a good and loiall subiect to the state: So also the Church fra­meth the inward man by the word of God, and causeth him not only to be a dutifull subiect vnto his Prince, but also to be an acceptable seruant vnto his Maker: So that there must be aswell had an awfull care of those things that are consecrated to God, as there is a héedfull regard had of those things that belong to the good of the Common state: for the Church was not made of God for the Common wealth, but the Common wealth for the Church. And therefore most Anno pr [...] Iacob. Regis cap. 3. gratious hath bin the consideration of our deare Soueraign, who to stop all importunate suits made to Bishops, for the graunting away of any of their reuenues to himselfe, or any other, and to méete with the too too easie facilitie of many Bishops, in yéelding vnto such suits; of his Christian and Princely pietie and care, hath made a Law, whereby to pro­tect the Churches possessions from alienation or diminution, that they may remaine and continue, according to the true intent of their foundation to their successors for euer, to the vses and purposes therein limitted.

But here is occasion offered by the example of our gratious King to wish that such as were authors to the King, for the dissoluing of Monasteries, and other houses of Religion, had bin likewise councellors to him for the restoring of all appro­priated parsonages of Tithes, which were as it were in cap­tiuitie vnder those houses of Religion, vnto their proper pa­rishes from whence they were taken. Which had bin a me­morable worke, & easie to haue bin persuaded the King, ha­uing so many great mountaines of temporalities and Seas of goods & chattels come vnto his hand: so that these spiritual­ties would haue séemed matters of smale account vnto him in comparison of those other great riches and possessions that came vnto him. Which if it had bin done, how blessed a state and Church had this bin, when euery congregation should haue had a sufficient prouision to mantaine a learned Prea­cher among them: for so was it by the first institution, and so continued till violence and superstition changed it. But I [Page 170] feare those men which began this worthy worke, had not such a sincere minde towards Almightie God in this refor­mation, as they ought to haue had, but that they sought ther­in their owne aduancement more than they did the glorie of of God; which I doubt me, lest God hath remembred, in some of their posteritie, which being left in great state, haue eyther so vanisht away, as that their place is scarse to be found, or else doe so continue, as that their posteritie euer since hath bin as it were in a minoritie, so that they are as though they were not, great in place, but smal in reputation: yea, the thrée fayrest branches or boughes that euer were in the world, issuing out of that trée, vnder whose shadow all these things were done, are quite gone, and liue by no other posteritie, but by their owne worthy fame and glorious acts which they did in their life time; which also now being gone, doe follow them, & so shall doe vnto the worlds end, for they were all thrée memorable worthies in their place. So dange­rous a thing it is to mixt our owne ambition, or any other carnall consideration with Gods glory. But God be than­ked such is the careful consideration of our most gratious Go­uernor, that now is, in this behalf, that it may be hoped, that God will remember him, and his posteritie in goodnesse, ac­cording to all that good that he hath done for the Church, that he and his posteritie after him, may sit vpon his seat so long as the Sunne & Moone indures: for certeinly his godly and gratious comportment, hath béen such hitherto, as that he may be verily thought to be a man according vnto the hart of God, as Dauid was. But now to the losse that comes to the Church by these impropriations.

Whilest the Parochian Churches stood in their essentiali­ties, that is while they did enioy the naturall indowments due vnto their place, that is, all manner of Tythes, and other Ecclesiasticall dueties, growing & arising within the com­passe of their Parish, due by the word of God, they preached vnto their congregation, they prayed for them, they myni­stred vnto them the Sacraments, they kept hospitalitie among their Parishioners, and reléeued the poore, so far as [Page 171] their portion would reach vnto; which was a comly thing to behold, acceptable to God, comfortable to their Parishio­ners, & conuenable to their calling: but after the same were appropriated to Religious houses, these good courses were much disguised: for albeit those Religious men, to whom these Parochian Churches were annexed, did much pray for those congregation, as they pretended, from whom they had the fat of the Benefices, yet they preached little to them, kept smal hospitality among them, or did any other spiritual work belonging to any Pastorall charge; yet notwithstanding the whole institution for which benefices in the beginning were erected, was not altogether extinct in them, but there was some outward shape or forme of the first ordinance left them, so far forth, as that they made continual prayers & intercessi­ons to God for them: but when it came once into the Laities hands, there was not so much as a footestep left of the first in­stitution, for they neyther preach vnto the people, pray for them, nor kéepe any hospitalitie among them, but spend all the whole reuenues of the Church vpon their priuate vses, which many times are vnfit for such Spirituall prouision to be spent in: so that for the benefit of the Church, the returne of them might be well wisht, albeit in so far as they are per­plexed and intricated by the Lawes of this land, with priuat mens states, it would be hard to be performed; for the chang­ing of them would be much like, as if a man should moue one stone in a vauted worke, such as the stonie roofes of many Cathedrall Churches and Colledges are, where the taking of one stone away is the ieopardie of the whole buylding: But yet let those to whom this doth appertain, consider whi­ther in this it were better to please God, than man.

But now to returne thither where I left: as euery good Bishop, or any of his Clergie, did wyn any countrie village, which the Latins call Pagus, to the Faith; so they erected vp a Church there, and appointed a Pastor or Minister ouer them, to informe them in the Law of God, and to minister Hespinian de origine Mono­chatus. the Sacraments vnto them: and set out for his maintenance the Tythe of that Page, or Village, to which he was assig­ned [Page 172] Pastor; which they did in Tythes, rather than in any other prouision, both because it was the Lords inheritance in all ages, and appointed by him for the maintenance of such as serued in his Tabernacle, during the dispensation of the mysteries of the Law, & now was returned again into Gods hand by the expyration of the demise of them made vnto the Leuites, during the said time of dispensation; and also be­cause the people would be the more easilie induced to part with one part out of euery ten, of all the fruites of their grounds, and labours of their hands, vnto the Minister, than if there had bin any other reguler imposition laied vpon them: for certein it is, Villages & Pages came more hardly and more lately vnto the Faith, than great Townes & Ci­ties did; and therupon grew that name of opposition, which was betwéene Christians that dwelt in Cities, & the Infi­dels that dwelt in Pages, that the one were called Pagans, the other were called Christians, taking their names vpon the difference of the places where they dwelt. But from these Pages, (as I haue said) came first the vse and practize of Tythes in the Christian world, insomuch as after when any Law was made, as concerning Tithes, they held them euer­more for a Parochian right onely, & in no sort at the disposi­tion [...]a. Cum contin­gat de Decim. verb. de sure coī [...]n g [...]os. of the Bishop, but in such cases as before is rehearsed; insomuch, that if a Bishop challenged any Church in his Di­ocesse, he challenged it not in respect of any fee simple he had in it, but in regard of the Spirituall Iurisdiction he had ouer it. And therefore the Authors of this opinion were far out of Ab. ca. nuper de Decim. et ca. deputati de Iu­dicijs num. 16. the way, when as they thought the Bishop had like right in the Tythes of a Church of his Patronage, to giue & bestow them as he listeth, as he hath in his demeanes, and other his Temporall lands, eyther to lease them out, or diuide them into Tenancies, as him best liketh.

Neyther is that case cléere or without question whereby they pretend, a Bishop being seised in a Mannor, may pre­scribe the Tithes of the demeanes therof, by an immemorial prescription for him & his Tenants, and Farmers for yeares, and Tenants at will, to be exonerated, acquited, and priui­ledged [Page 173] from all Tythes growing thereupon: which if it be against an other person than himselfe, may hap to be true, although perhaps also that be questionable, for that it is not long since Lay people were capable of that right; neyther could themselues by Law of the Church at any time graunt such Spirituall rights as these are, to a Lay man, either in Feudum, or Emphiteusim, without danger of Excommuni­cation, Ab. ca. ad h [...] de Decimis n [...] ­mer. 4. or deposition of their owne place, as hath béen before shewed. But if himselfe, or his predecessors were Parsons there, either in the right of their Bishoprick, as hath bin of late before remēbred, or that the Benefice was annexed vnto their Sea, for the prouision of their Table, as many Bisho­pricks had some one or more benefices appropriat vnto them to this purpose, then could they not prescribe the Tithes in such sort as is pretended: For albeit no prescription proceeds without possession, yet no man can prescribe against himself, although he be in possession; for that euermore there must be two persons in a prescription, the one which doth prescribe, the other against whom it is prescribed; and therfore in these cases it is neuer said, they hold their Tythes by prescription, but in the right of their Church, or Parsonage. In eyther of which cases, if they were Lords of the Mannor, & Parsons of the Parsonage together, it is not to be thought they would so respect the good of their Farmer, as that they would either hurt their Church, or preiudice their owne Table, for their farmers sake: which they must doe, if they suffer a Prescrip­tion to run against the Church, or themselues, to exempt the demeanes of the Mannor from payment of Tythes, which were due both to the Church, & themselues: For they were men, that both knew in their conscience, how much they were bound vnto the Church in this behalf; & they were not ignorant what preiudice they should doe vnto themselues, if by prescription they should yéeld to exempt so necessary a pro­uision for the maintenance of their Hospitality, as the tithes of the demeanes of a whole Mannor, & their tenancies are: for no small part of their commendation stood in those dayes in their hospitalitie, & therefore it is not to be presumed that [Page 174] they would easilie cut off any prouision that was fit for the same. Beside, if by either of these two wayes, the Bishop were Parson in the place, then did the fruites of the Bene­fice, during euery Vacation of the Bishoprick, not come to the King, as they now do, wherby the Parsonage & Mannor are both consolidated into one, for that they are now both holden to be Temporalties; but the Parsonages came to the Archbishops of the prouince, as a spiritualtie granted to his Sea by priuiledge, during the vacancie of the Seas of such Bishops as were in his Prouince, as may appeare by the Lord Archbishops Records of Canterbury, so that it cannot E [...] Registro Archiep̄i Cant. be thought any prescription could run in these times, being so often interrupted by vacancies as they were. Which being well considered, the conclusion is very doubtful, whither euer any prescription ran in this case, neyther would it easilie be beléeued by those that know the course of Antiquity, but that there hath a Iudgement passed in this part, & therefore will I stay my selfe here, and prosecute this point no further.

I intended to say nothing in this treatise of the Tithes of Minerals, & other subterraneous bodies, because I know by Law, they are holden by the like right, as the Tithes of those things are, which grow in the vpper face of the earth; but yet because I sée there is a question made of them, by some that will make euery thing controuersable, that is due vnto the Church, I will satisfie also their curiositie: And therefore, for Mettals, & other substances which are digged out of the bow­els of the earth, & therefore are called Fossilia, this is certein, that what God worketh here in the superficies of the Earth, for those things that spring out of the earth, by the heat of the Sunne, the temperature of the Ayre, & the influence of the Celestiall bodies; the same he effecteth below in the depth of the Earth, for the generation of Mettals & other subterrane­ous bodies by the heat & cold of the earth, that is included in Erastus tractat. de ortu Metal­loram. the bowels therof: For by the heat, he raiseth vp vapors & ex­halations in the matrix therof, as the matter of those subter­raneous bodies: but by the cold, he dryeth, thickneth, hard­neth, and indurateth the same into a Mettall, or Minerall, [Page 175] whereby he giueth as it were a forme vnto it. And as the dis­position of euery exhalation so compacted & drawen together is finer or grosser, hotter or colder, so is the Mettall or Mine­ral, or other subterraneous body more noble or more base: yea, somtimes by reason of this diuersitie of exhalations & vapors drawen together at one time, are diuers conditions of Met­tals there confounded together, whereof some are noble, as Gold, Siluer, & Copper; some other are of lesse estimate, as Tyn, Lead, and such like. Neither do these grow only in the beginning, but they renew againe when they are digged vp, (as Trées & plants in the vpper face of the earth do rise out of the rootes & stemmes of those trées which haue bin cut down) if the place of their new generation be prepared accordingly: For whereas the place of their generation is far below in the Earth, nature of a certein modesty in her selfe, will not yéeld to the generation of these subterraneous bodies, but in secret places, far remote from the sight of the Sunne, & the priuitie of other Meteoricall bodies, which are vnder the firmament. And by that meanes it hapneth, that these Minerall bodies are rarely knowen & perceiued to renew againe; for that be­ing once exposed to the light of the Sunne, they are seldome or neuer closed vp againe, by reason of the greatnesse of the gulfe that is made in opening of them. But yet the nature of them is such, that if their bed were therto prepared according­ly, they would conceiue a new: Which is a thing so notorious ff. Soluto Ma­trimonio, l. fru­ctus eos. §. 13. Plin. lib. 36. cap. 15. et 18. de naturali Hi­stor. in Quarries of stone, which are lesse abashed at the sight of the Sun, & the presence of other Meteoricall bodies in their generation, that the Law it selfe, & other good Authors haue set it downe for an vndoubted experience, that being digged vp, they doe renew againe, by the nature & disposition of the mould wherin they are ingendered: For some earthes do as naturally yéeld stones, & other minerals out of them, as others Strabo lib. 5. bring forth Corne, Hay, & other fruites: which if it be true in those bodies which are in the vpper crust of the Earth, why not also in those bodies which are found & framed below in the Matrix therof. And if these bodies do both ingender & renew, which are conceiued so far below in the Nauell of the earth, [Page 176] why is not Tythe due of them, aswell as it is of other fruits that are in the summitie or hight of the earth. Whether is it that Gods hand lesse laboureth in the procreation of these subterraneous bodies, than it doth in the ripening & quick­ning, of that fruit that springs out of the vpper face of the earth? But that is far otherwise, for here in these vpper fruites, one planteth, an other watereth, and God only giues the increase: But in the other Minerall bodies, God alone doth all, for he only is the planter, he is the waterer, and he giues the increase alone. Or is it that God hath lesse delight to be honored with these hid treasures of the earth, than he hath to be worshipped with the labour of the plow, or the in­crease of the cattell of the field? But that this is not so, it is plaine by the glorious Temple that Salomon made, which 2. Chro. ca. 2. had not only Cedar trées for the roofe therof, and Algummin wood for the ornaments thereof, but also had quarrie stone for the wals thereof, & gold of Paruaim for the beautifying of it, & for the ouerlaying of it within. And of all other kind of Mettals, gold is first remembred in the Scripture, imme­diatly Genef. 2. vers. 21. & 12. after the creation of the world, so that God himselfe may séeme to haue a special regard of this Mettall aboue the rest, for that this alone aboue all the rest, by purifying is not diminished. Or is it that God loueth his Ministers lesse than other men, so that he would haue the Laity to haue al the pre­cious things of the earth, & his Ministers to haue no part of any other thing, but that which is vulgar & common? But how vnlike that is, who sées not, when he séeth that God hath committed vnto them, the inestimable treasures of his word; in comparison whereof, both these vpper fruits of the earth, & those hid treasures below, are méere drosse & corruption? and therefore it is not like, when he hath committed vnto them those great matters, he would deny vnto them these smaller blessings. Or is it that there hath bin paid tyths of the vpper fruit of the earth already, & therefore cannot Tythe be twice Ca. en parte de Decimis, & ibi [...]b. 18. demanded of one ground in one yere, according to a new ouer ruled doctrine? But that opinion is both contrarie to Law many hundred yeares obteyned in the Church without con­tradiction, [Page 177] whereby it is ordained, that as often as the earth fructifieth in one yeare, so often shal Tithes in the same yeare be paied of it: & also it is contrary to Diuinitie & reason that it should be otherwise. For when as God hath giuen thee more Haruest or more Vintages in one yeare, is it not both godly and reasonable, as God hath increased his blessings towards thee, so thou also shouldest rise in thankfulnesse towards him? For, wher euery one hath receiue dmore grace or more fauor, there ought he to be more thankful, lest God for lack of this correspondencie in thankfulnesse, bring thy nine parts, for thine ingratitude towards him, to a tenth onely. For cer­tainely so he is able to doe by sending deluge and drought vpon the earth, by bringing barrennesse vpon it, by de­stroying that which is sprung out of the earth alreadie, by storme and tempest, by the grashopper and the caterpiller: for all this hath hee threatned to all those that are vn­thankfull this way, neither is the Lords hand more shortned now than it was then. Whereas not withstan­ding to the contrary, hee hath promised great kindnesse vnto such as shall pay their Tythes truely and chéerful­ly, as that he will open the windowes of heauen and power out his blessings without measure vpon them. Hilarem enim datorem amat Deus. Beside this, that earth that bringeth out mettals in the Matrix of the earth, is not that that bringeth out corne and grasse in the top of the earth: for that earth that is the mother of mettals, being prest downe far into the bo­wels of the earth, can yéeld no sustenance to those fruits that grow so many fathoms aboue it, to which it confers nothing saue that it doth support and bear vp that other earth, which nourisheth the plants and fruits of the vpper earth, whose sustenance is not fet déepe out of the earth, but is suckt out of that earth which is within one cubit or two of the top of the earth: which may be easily perceiued by those fruits and trées that grow vpon hard rocks néer to the top of the earth, whose food, although it be néere vnto the top of the earth, yet doe they florish and stand fast, as other trées and fruites doe, which haue more fat and déepe mould vnder them. And there­fore [Page 178] cannot the Tything of those things which are aboue, ex­cuse the Tything of the treasures that are below, albeit the conclusion were true, that two thing are not to bee paid out of one ground in one yeare, for these are neither one ground, and the conclusion it selfe is erronious, and therefore I con­clude this point thus: Since Mettals and Minerals, and o­ther subterraneous bodies are in no lesse Obligation to God, than other fruits of the earth are, there must be no lesse tiths paid of them, than are of other fruits of the earth; for that these are the inward fruits of the earth, as well as those are the outward, and therefore of like things, there must be like iudgement and like consequence. And thus much as concer­ning the Tythes of Mettals and Minerals.

And now because I am in this matter of Tythes, I will shape an answere to one doubt that is made, as concerning the Tyths of Turues, that is, of earth disposed and prepared for fewel, which are said not to be tytheable, & that vpon this reason: That Tyths are not paid of the earth it selfe, but of those things which spring out of the earth: which opinion is true, if it be vnderstood of earth not seperated from the bodie & masse of the rest of the earth. For if Tyths should be yearely paid therof, as it is paid of other things that grow out of the earth, all the whole earth in a short time would become the Clergies. But if it be meant of earth that is seuered from the rest of the masse & globe of the earth, then is it otherwise. For that earth that is thus seuered from y^e other earth is no more part of that earth from whēce it is seuered, than a mans hand or leg being cut from the bodie, is part of his bodie after it is cut off from it. And therfore of this earth so prouided for fewel may Tyths aswel be paid as of any other fewel of wood, cole, or otherwise that is prouided to be burnt. For there is one reason of things when they are vnited together in one bo­bie, and another of those things when they are diuided from the same body: for so long as they are in one and the self same body, they follow the nature of the whole, but when they are diuided, then is there another consideration of them. Sepera­torum L. finali. ff. de ca­lumuiatoribus. enim seperata est ratio, & ex seperatis non infertur de vn [...] ad [Page 179] aliud. Corne, Grasse, and such like, while they stand are not Titheable, although the tythe then is in them pro Indiuiso: For while that they stand they are part of the earth vpon which they stand, and therefore so long vntithable, because the earth it selfe is vntytheable. But if they be cut downe, then are they to be Tythed, because they are now no longer parts of the earth, but bodies by themselues seperated from the earth, so that now the not tything of them is penall: Of which sort are turues seperated from the rest of the masse of the earth. Neither is this my opinion alone, but it was Prouincial. de decim. c sancta & ibi Linwood verbo turbarū. Linwoods long agoe, and other Ecclesiasticall writers, who not only make Turfe Tythable when it is prepared for fire, but also great rods, and smal twigs, sticks, & chips of timber, buts and rootes of trees, thornes, bryers, walnut shels, and L. Ligni appel­latione §. 4. 5. & 6. ff. de legat. 3. nut shels, wéeds, coles and cole-brands (called Titiones, be­cause they are so burnt as they shall not make a smoke) cow­shards, which the Law cals Editus boum. All which a man can vse to no other purpose than to burne: for where wood lacks, these succéed in place of wood, & are called by the name of wood, & are in like Obligation, as concerning the Tythe due therout, as wood it self is; Vbicunque enim est eadē ratio, veleadē L. Illud. ff. ad [...]egem Aquiliā. aequitas, ibi debet esse eadē iuris dispositio. And therfore not in that, that Turues sometimes were gremiall earth they are to bee discharged of tythe: but in that they are accounted for Fewel by the law, when they are so prepared to be burnt, they are to pay tythes in like sort, as other things applyed to that vse do.

And so far as concerning the Prohibitions which arise out of this prouiso. Now it followeth that I speake something of 2. Edw. 6. c. 13. the next prouiso, which is concerning the Tythes of barren heath, and waste ground, and the Prohibitions thereupon.

This prouiso hath two branches, the one for comparatiue barren, heath, & waste ground, the other for absolute barren, heath & wast, for either of which is assigned a time of 7. yeers, either for the paiment of such tiths, as before the time of their improuement, and conuerting to errable, they were charged with, or for the frée and absolute discharge of them from all manner of Tythes for seuen whole yeares next after [Page 180] their improuement ended and determined. For so I take the Statute meant, when as it made the one Tythable, the other not, for if otherwise they had béene both in one predicament of barrennesse, the Statute had not made one frée from tithe for so many yeares as it doth, and charged the other all that time with Tithe.

For these two kinds of grounds, although the Statute say nothing, which is comparatiue barren, which is absolute, yet reason telleth vs, that is Comparatiue that hath a posi­tiue vnder it, and a Superlatiue aboue it: and therefore that is Comparatiue waste, barren, or heath, in respect whereof there is some ouer ground more or lesse, waste, heath, or barren, so that it hath simply and positiuely in it some condition of heath, wast, or barren: but if it hath no­thing of any of these qualities in it, then is it neither heath, barren, or waste, howsoeuer long otherwise it hath lien vn­manured, and not turned to tillage: For it is not the turning of a ground to tillage that makes it heath, barren, or waste, but it is the il disposition of the ground it selfe, subiect to these inconueniences, that causeth it not to be turned to tillage; for no man will willingly till that, where the gaine of the tillage will not quit the cost and labour of the husbandry, as for the most part it falleth out in these grounds they doe not.

Barren ground therefore simply, is that, which being ea­red, Glos. L. licet. C. de locato & con­ducto verbo sterilitates. yealdeth not the séede againe, or at the most, yéeldeth so smal aduantage for the tillage, as that the tenant after that he hath paid his Rent, hath not the worth of halfe his séed a­gaine; much like vnto that ground whereof the Scripture speaketh, whose barrennesse is such, as being eared and sow­ed, neither the Mower filleth his hand, neither the Gleaner his lap, with the yéeld thereof. These grounds are not only called Sterilia of the Latines, but also Infaecunda, Infrugifera, & sine prole, for the excessiue barrennesse that is in them: and the Gréeks vpon like occasion tearme such conditioned grounds; L. si quis vsuras. ff. de eo qui pro tutore. [...], in which sence, money not put to vsurie is by the Law called barren money, and Aristotle cal­leth [Page 181] it fruitlesse money: for that money was not deuised ther­by Arist. 1. lib. poli­ticorum. to increase money, as gréedie Vsurers in all ages haue done, but that by the meanes thereof men might ease the dif­ficulties, and necessities of change of one kind of thing for a­nother, as a horse for an oxe, a shéepe for a goat, Iron for brasse, and such like: for there is nothing that may not bee Arist. 4. ethi­corum. c. 1. esteemed by money, and the vse of money is the vttering of money, whereby it is commonly said, Money is lost by the vse thereof, not that money doth perish or decay by vse, for we sée the cleane contrarie to that, though money goe tho­rough a thousand mens hands, yet it is still of the same va­lue, and remaineth in her proper essence or being: but that the vse of money is in the laying of it out, and that by the vse thereof, money passeth from him whose it was, and the pro­pertie thereof goeth to another, and therefore as to the first owner it is spēt, & lost: without which loosing, money naturally gaineth nothing; for lay it vp in a cofer or chest neuer so long, it will neuer be the more in number, although perhaps as S. Iam. cap. 5. v. 1. Iames saith, It will gather a rust & canker, & that rust and can­ker will bee a witnesse against them which so hord it vp from the seruice of God and the common wealth, in the day of the Lord: so then, as that money is barren, that lyeth still and bringeth out nothing, so is that ground barren that beeing tilled, yéeldeth no fruit, or at the most, so little, as the gaines will not recompence the charge.

Although heath ground, and barren ground be almost Sy­nonomies, yet to speake properly, heath is as it were an ef­fect of barrennesse, for that there is no ground that bringeth forth heath, but for the most part it is barren. And therefore as heath it selfe is an vnfruitfull kind of shrubs, and is good almost for nothing but for the fire; for that neither growing or cut downe, it hath any beneficial vse at all for the common wealth: so also the ground it springeth out of, hath neither faicenesse to the eye, nor goodnesse to the yéeld, but is com­monly either a black sower ground, that hath no swéetnesse at all in it, or is a dry hungry soyle, such as euermore cryeth Prouerb, 12. giue, giue, and neuer restoreth oght againe.

[Page 182] Waste is that which for the vnfruitfulnesse thereof hath laien time out of minde vnmanured, in which sence it is all one with barren ground; or it is such ground as for the charge of hedging, ditching, fencing, and tilling no man will manure.

Our forefathers aunciently comprised all these three vn­der one name calling them all by the name of Noualia, that is new broken vp ground not only because they were not broken vp in the memorie of man before, but also for that being eared, they yeelded little or no fruit at all: and therefore the interpreters of the Law defining what Noualia are, say that they are such grounds as before the tillage thereof were inutilia; and example them out, in Mountaines, Marshes, C. commissum de decimis verbo i [...]tilia. Thickets, and such other vnprofitable ground, as out of which before the stocking of them vp and conuerting them to tillage, the Church tooke little or no benefit at all. And those are the same or cosen German to those which this Statute calleth heath, barren and waste; for they are one and the ve­ry self same with them, in all the chiefe points, for which they are excepted out of the Statute.

So then now, there is no further question what is heath, barren, and waste ground, but who shall trie the matter of this qualitie, the Ecclesiasticall Iudge, in whose continuall possession this triall hath béene vntill now of late, that vnder colour of this Statute, it hath béene incroched vpon, as it may appeare by all the Titles of the Ecclesiasticall Law, where there is any mencion of the Tythes of new broken vp ground, and the Decrées of the Lawgiuers in the same, betwéene the Monasteries challenging them by graunt, and the Parochian Ministers of the Parish where they grew, claiming the same by right: Or the Temporall Iudges, whose is the Cognisaunce of the Tytle and Te­nure of the ground, as also is the setting, letting, buying, sel­ling, and other alienating of the same.

For the point it selfe, the Statute maketh no mention, but passeth it ouer with silence; and therefore it is to bée presumed that it meant, that it should there rest, where it [Page 183] was before the making of the statute: for the statute was not made in derogation of the Ecclesiasticall procéedings, that were before; but in affirmance thereof, as the whole drift of the said Statute doth shew.

And if the Statute had meant otherwise, it would surely haue expressed it either in the prouiso it selfe, or af­ter in the derogatorie clause; where it maketh an enu­meration of such things as it intended should bee ex­empted from the tryall of the Ecclesiasticall Law, and by vertue of this Statute, should not bee comprised vn­der the same, among which there is no word of this prouiso, or anie other in the same Statute before named.

Neither is it vnto the purpose, that the Common Law of this Land taketh knowledge of the Tenure and Title of Lands, and such other complements belonging to the same; for these things that are here in question, are no part of those Legall Essences, which the Law requireth to the Tytle and Tenure thereof, as is Féesimple, féetaile, and other of like na­ture, according to the learning of that Law, but these are cer­tain accidents ouer and beside the Tenure of the land, which may be present or absent without the iniurie of the Tytle: as God many times turneth floulds into wildernesse, & springs of water againe into drinesse, & a fruitful land makes he bar­ren for the wickednesse of them that dwel therin, and yet the Tytle or Tenure of the ground is not changed, by these chan­ges of qualities, but remains the selfe same that it was: so that these things are no more subiect to the ordering of the Common Law, than it is in the Cōmon Law, to iudge & de­termine what mould is white & what is black: what ground will beare wheat, what barley, what oats; for these things are no matters of skil of law, that they néed to be fetcht out of bookes, but they are matters of common experience which e­uery country man can as well skill of as the greatest Lawyer that is, and therefore the Law in this case is not desirous of any curious proofe, but contenteth it selfe onely with the depositions of two or thrée honest men, which speak sensibly [Page 184] and féelingly to the point that is in hand, which is enough to direct any wise Iudge in his sentence, so that it néeds not these long circumstances of twelue men to teach the Iudge what and how truely the witnesses haue deposed. For if e­uery qualitie of the ground resteth in the mouth of twelue men onely, then should no man bee able to say out of the mouth of a witnesse, and pronounce thereupon, this ground is mountaine, this is plaine, this is meadowe, this is errable, vnlesse he were warranted by the verdit of twelue men ther­unto: which if it be an absurditie to hold, then sure it is like absurd to say, that barren, heath, and waste cannot bee pro­nounced without a Iurie; for that these things are like obui­ous to sence, and like qualited as the other are.

And I pray you, when they haue drawne it vnto their triall, what doe they in effect otherwise than the Ecclesiasti­call Iudge would or should haue done, if it had remained stil vnder him? for doe they giue credit simply to the conceit of the Iurie, as touching that which hath béene declared and pleaded in the cause before them, or doe not the Iudges them­selues rather make a briefe of all that hath béene pleaded in the cause before them, and thereof make as it were a verdit, and put the same in the mouth of the twelue for their verdit, before they goe from the bar? So that the whole weight of the cause standeth rather in the Iudges direction, in such sort as it is at the Ecclesiasticall Law, than it doth in the mouth of the Iurie; for the Iurie men for the most part, are simple people, & scarce foure of the twelue vnderstand their euidence: so that it may séeme rather to be a matter of supersluitie than of good policie, to refer a matter to their verdit, when as they say no other thing, than that the Iudge taught them before; Stultum enim est id facere per plura, quod fieri potest per pauciora: for albeit perhaps some capricious fellow of the Iurie, vpon the confidence of his owne braine, sometimes start aside from that which the Iudge hath told him, and draw the rest of his fellowes, as so many shéepe, after him; yet for the most part the Iudges voice is their direction, their loadstone, and and North pole to guid them in this businesse.

[Page 185] Besides, in this Prouiso, as in some other precedent, there is a great disaduantage offered to the Clergie, which they much complaine of, and that is, that in cases of this nature, they are compelled to suffer triall vnder them, who are as in a maner parties vnto the suit, by reason of the interest they haue therein, either in present, or in consequence; so that ma­ny now a daies (learning too late by other mens harmes what the euent in theirowne cause wilbe) chuse rather to loose their right, than to venture their cause vpon such partiall Iudges, as the 12. men are.

And so far as concerning those prohibitions as are forced out of this Statute, for naturally they grow not out thereof: so that I might now passe ouer to the other branch of my di­uision, that is of such matters as are now held by the Com­mon Lawyers, to be in a certaine measure only of the Eccle­siasticall procéeding, but were aunciently wholy of the Ec­clesiasticall cognusance; but that the name of the Statute, De Sylua caedua, offering it selfe vnto me in the conclusion of this Statute of Edward the vj. giues me occasion to speak something thereof, before I come to the rest.

This Statute as the words thereof doe shew, was made in behalfe of the Laitie against the Clergie, for the exemption of great Woods of xx. yéeres growth, & vpward, from the pay­ment of Tythes; and that in three cases only, where the wood was great, where it was of xx. yeares of age and vpward, where it was sold to Marchants, eyther to the profit of the owner himselfe, or in ayd of the King in his warres; so that without these cases, it séemeth the Statute intended no fur­ther exemption: for Statutes are things of strict Law, and are no further to be extended, than the words thereof giue matter thereunto, specially when the thing it selfe naturally was lyable to ordinary course of the Law, as other things of like nature are, and the statute comes in derogation of their ordinary course: as in this case, great timber auntient­ly was no lesse tythable than small trées are, and so by nature ought to be if the statute were not to the contrary; yet not­withstanding these limitations of the same, if great wood be [Page 186] cut down to any other vse then to sale, as to build, or to burne to a mans owne vse, a prohibition in this case lyeth, and yet is there no Identitie of reason to extend it, nor any absur­ditie would follow, if it were not extended, for here is nei­ther mony sought (which gaue occasion vnto the Lawgiuers to make this statut of exemption) neyther is it an vnnatural thing for to pay Tythes of great wood; for before this time they were paid, and by the Law of God it séemes they ought to be paied, for that he that is taught, ought to communicate to him that teacheth him in all things: and therefore since the reason that moued the Lawgiuers to order it so in one case, ceaseth in the other, there is no reason of extention, & when there is not an Identitie of reason, in the things that are in demaund, there can no sound inference be brought in from the one to the other, for of seuerall things, there is a seuerall reason, and a seuerall consequence, neyther can there be fra­med thereof a good implication, eyther positiuely, or remo­tiuely: neyther hath this interpretation of theirs any war­rant of Law for it, saue that it hath bin so defined and deci­ded: but what is that to the purpose, if it hath bin wrested and wronged contrary to the true sence of the Statute, and that by those that take benefit thereby, whose partiality be­ing taken away, the thing it selfe would easily turne againe to his owne nature, and right would take place?

The reason they yéeld for the exemption of great woods of the ages aforesaid, although to themselues, it be plausible, yet to others it is strange, as namely, that great Trées are Plowd. in Soby contra Molyns. part of the Fréehold, and that men vse not to pay Tythes of their fréehold, but of those things which spring out of their fréehold, as out of Corne, grasse, fruit, & such other; whereas in déed the tallest Timber tree, that is, if it were as high as the highest Cedar in Lebanon, is no more part of the inheri­tance or fréehold, than the lowest bramble that groweth in the field; for they are both equally part of the ground wher­in they grow, and do take a like norishment and sustenance from the same, neyther doe they differ in that they are trées the one from the other, secundum magis et minus, as the Logi­tians [Page 187] say; but in that, the one is a great trée, and the other a small shrub: and the cause of this prouision here in Eng­land for these great trées, was not for that one was more of the inheritance than the other, but for that the one yéeldeth more profit to the common wealth, than the other, & there­fore they haue made the cutting down of the one more penal, than the other: as in like case by the Ciuile Law, who so pri­uily cutteth downe, or barketh a vine, an oliue, or a fig trée, ff. Arborum fur­tim caesarum, to­to tit. or doth any other vnlawfull act, whereby any fruitfull trée, or any Timber trée doth perish and decay, it is Theft; and it is punished in the double value of the hurt which is done, and if he be tenant to the ground which hath done this vil­lanie, he loseth his hold: which commeth not of that, that one kind of Trée hath more state in the ground than an other hath, but that the Law hath respected, the necessarie vse of the one more than the other.

By the Ciuile Law, although this word Wood be gene­rall, L. Ligni appol­latione de L [...]g. 3 & L. Carbonum ff. de verb. sig­nificat. yet it is thus distinguished, that some is wood, some is Timber, which the Law cals Materia. Timber is that which is fit to build or vnderprop withall: Wood is what­soeuer is prouided for fewell, so that vnder that name there passeth Réed, Coale, Turfe, Cow dung, and whatsoeuer L. ligni appella­tione, § Ofil [...]us, & §. idem ff. de legat. 3. is any where ordinarily vsed for fewell. Tymber is of a higher consideration than wood is, insomuch as if a man be­queath vnto an other all his wood that is in groue field, there shall not passe by this legacie such Trées as are cut downe for timber: but if they were dotterd Trees, or the owner thereof purposed them for fewell, and so cut them out into billet, or fagot, in such sort as there could be no other vse thereof than to burne, then it is otherwise: for by this meanes, of great wood, it is become small wood, as being cut out in shides, or splinters, fit for to burne. So that in the reckoning of the Ciuile Law, tymber stands not onely in the nature of the wood it selfe, but is in the destination and purpose of the owner, who according to his good ly­king, may make that wood, which is fit for timber, fier wood, or tymber: which if it were so in account with the great [Page 188] Lawyers of this land, the Church should haue more Ty­thes of Wood appointed for fewell, and les [...]e suite for the same.

As they exempt the bodies of great Trées aboue xx. yeares Plowd. vt sup̄. growth, from payment of Tythes, so also they frée the boughes thereof, vpon this reason, that the boughes thereof are fit and seruiceable for buylding, which although haply may be in some of them that are next to the Trunck of the trée; yet it is far otherwise in those that are more remote from the same, whereof there can be no other vse than to burne: and therefore the Law precisely holds, in case where wood is bequeathed, by which is meant fier wood only, vnlesse the Testator otherwise expresse his mind, the lops of timber L. Ligni appel­latione §. Ofi­li [...] de Leg. 3. trées, which the Law cals Superamenta materiarum are be­queathed, for that the lops haue not that vse that the Tim­ber hath, that is to buyld or prop vp withall, but they serue to burne onely: by which seuerall ends, there is seuerall con­sideration and accompt made of them. Neyther is it to the purpose that they alleage for the defence hereof, that the ac­cessorie followeth the nature of the principall, for that rule is not true in euery accessarie, but onely in such, in whom is the like reason as is in the principall, which in the trunk L. [...]tsi. C. de Praedijs minorū. and lop of a trée cannot be alike for buylding.

Further, how the Boughes of a tree that are of the same substance, as the bodie of the trée is, should be accessaries to the trée, I sée not, for nothing can be an accessarie to an other that is of the same nature and substance as the other is; as the leg, or hand, are no accessaries to the bodie, for that the leg or hand are of the same substance that the bodie is: The Child, neyther while it is in the Mothers wombe, neyther after it is borne is an accessarie to the Mother, for L. 1. ff de ventre inspiciendo. while it is in the Mothers wombe, it is part of her wombe, and after it is seuered from her wombe, it is a man or wo­man like principall as her selfe is: But that which is an ac­cessarie to an other must be of an other nature than the prin­cipall is; so in naturall lyuing creatures, haire, hoofes, hornes, and finnes, and such other like excrements, are ac­cessaries [Page 189] to the creature whose they are, for that they are of a far different nature, from the bodies, out of which they come: and so in other naturall things not lyuing, as the Earth it selfe is, the trées, grasse, and fruit that spring out of the same, are accessaries thereto. Further in Ciuile mat­ters, expences and executions are accessaries to the causes out of which they rise: and in Marriages, Dowries and L. do [...]is. ff. de iure do [...]ium. Iointures are counted accessaries to them, for that wyth­out Marriage, neyther ioynture, nor dowrie can stand. Vsurie is said to be an accessarie to the principall, not in res­pect that the proper subiect of eyther of them is Money, and so there is one substance or nature of them both, but in regard of the dependencie the one hath of thother; for he that will make challenge to Vsurie, must first proue there is a principall. But for the better cléering of these matters of accessarie and principall, wée must know in bodies whose substance is all one; There are some partes like, which the Logicians call partes similares, some other vnlike, being likewise called of them partes dissimilares, which in no sort are accessaries one to an other, but make one continued bodie of both, which the Law cals [...]: Simular parts are such, as haue one substance, forme, and figure, as the trunke or bodie of a trée is all one in inward essence, and outward shape: Dissimular parts are those, which haue one inward nature with the other, but are diuers in out­ward shew, as the boughes and rootes of the Tree are di­uers betwéene themselues, and different from the bodie, and yet all agrée in one substance, and haue all the generall name of Wood, whereby they are discharged from being accessa­ries the one to the other, and yet they are not vnder one capacitie or seruice, or one comprehension of Law, because they are vnlike one to thother; and of vnlike things, there is vnlike reason, and vnlike consequence.

Now vpon these grounds to exempt Timber Trées whol­ly from the seruice of him, that is Lord aswell of the tall woods, as of the low shrubs, is verie hard, for though him­selfe dwels not in houses that are made with mans hand, [Page 190] nor hath any néede of tall Trées to repaire his Taberna­cle, or prop vp his dwelling: yet since he hath left such be­hind him, as haue charge of his flocke, and féed them in word and worke, vntill he come, and they dwell in earthly habitations, as other men doe, and there edifices and buil­dings, haue néed of repaire, in like sort as other mortall mens houses haue, being all in like manner subiect to rot­tennesse and corruption; great reason it had bin to haue al­lowed him some proportion of these great woods, towards his seruants necessarie vses, during the time of their ser­uice here, and if not in the very tenth it selfe, yet in the xxx. xl. or l. part of the same, that God thereby might haue bin aswell acknowledged to be the Lord of the great Okes of the forrest, and that by him they haue there length, breadth, and thicknes, as he is accepted and reputed to be Lord of the small brambles and bushes of the field: for as now the case standeth, God may either séeme to haue forgot himselfe, that he hath not made timber trées Tythable, as he hath done other smaller woods, specially hauing such occasion to vse them, both in the Chauncels of Churches that are dedi­cated to his vses, and also in the buyldings and repayrings of his Ministers houses, who supply his roome in their seue­rall Congregations, vntill he retorne to Iudgement; or that may wel be obiected against vs, in allowing such things for Tythes as vs please, and disallowing the rest, as was by that auncient father of the Church Tertullian obiected against the Senate of Rome, who being intreated by the Emperor Tiberius (for the strange wonders and Miracles he heard to be wrought by our Sauiour Iesus Christ) that he might be intertained among the number of their Gods, refused so to doe, for that they heard our Sauior was a Iea­lous God, and did in no sort admit the societie and fellow­ship of other Gods; which this graue father hearing, (al­though many yeares after) said merily, although wisely, That God should be God, if Man would let him.

And thus far of those causes which are held to be abso­lutely of the Ecclesiastical cognisance, & yet notwithstanding [Page 191] are ecclipsed by interposition of sundry contrary matters.

Now as concerning those things which haue béene ac­counted but in a certeine measure of the Ecclesiasticall cog­nisance, and yet notwithstanding haue aunciently in a ma­ner béen tried wholy at the Ecclesiasticall Courts, such as are matters of Diffamation, and matters of Bastardie, both which now a dayes are much challenged by the Temporall Courts to be of their cognisance. But here first of diffama­tion, then of Bastardie.

To diffame therefore is as Bartol saith, to vtter reproch­full Bartol l turpia ff. de legat. 3. spéeches of an other, with an intent to raise vp an ill fame of him; and therefore himselfe expresseth the act it selfe in these words, Diffamare, est in mala fama ponere.

Albeit Diffamations properly consist in words, yet may they also be done by writing, as by diffamatory Libels, & also by déeds, as by signes, & gestures of reproch; for these no lesse shew the malicious mind of the diffamer then words doe.

Diffamatory words are vttered eyther in some scoffing or iesting maner, so as facete & merie men vse to do, to make the Linwood c. au­thor tate verb. quacu [...] que de causa i [...] glos. de snīa ex [...]omm. company merry wherin they are, or they are spoken by some that haue some weaknesse, or distemperature in their braine, eyther by drink, phrensie, or other lightnesse, or by any rash­nesse in their tongue, or they are poured out vpon some ran­cor & malice, by some that enuie an other, with intent to dif­fame him, and spred abroad a matter of disgrace vpon him.

If they be spoken in a testing maner to make the company Aristot. 4. ethic. c. antepen [...]lt. merry, if it be in a fine sort deliuered, it is by the Gréekes called [...], and is by Aristotle held to be a vertue, al­though by S. Paul it is condemned as a vice; but if it be in [...]phes. 5. 4. homely & grosse sort deliuered, than is it accompted to be a kind of rudenesse or rusticitie; but whether waies soeuer they be vttered, there is for the most part no vantage taken of Extra de pre­sumpt. ca. 1. them, vnlesse thereby there follow any discredit to the party vpon whom such iests are broken, for than are they not with­out blame, Noxius enim ludus est in vitio, neyther can that ff. ad l. Aqui­liam, l. nam in­du [...]. be called iest or sport, whereby a mans good name is hurt, or any crime imposed vpon him.

[Page 192] The like may be said of those which speak hardly of any by the lubricitie of theyr tongue, or weakenesse of theyr braine, who for that they are not thought, to speake such words malitiously, passe for the most part vnpunished, Lu­bricum ff. ad l. Iul. Maiestatis l. famosi. enim linguae non facilè ad poenam trahendum est, no though a man in this case speak ill of the Prince him­selfe: which is so far off from that, that the Ciuile Law takes hold of such wordes in these cases, that the Empe­ror himselfe hath said of them thus: Si id ex leuitate pro­cesserit, C. Si quis Impe­ratori maledi­ [...]erit. contemnendum est, si exinsania, miseratione dignissi­mum est.

But if the cause of such words be rankor or malice, then are they altogether to be punished, for that there can be no iust excuse made for them.

Such diffamatory words as procéed of malice, implie Bohic. ca. Si cul­pa de iniurijs. either matters of crime, or matters of defect.

Such as imply matters of Crime, either are such crimes as it is expedient for the Common wealth to know, as Trea­son, Linwood pro­uinc. de snīa excomm. ca. 1. verb. maliciose. Felonie, Murther, Incest, Adultery, and such like, to the end they may receiue due punishment, whereby God may be pleased, and the Common wealth satisfied: Or they are such crimes or faults, as it is not expedient for the Com­mon Bohic. vbi sup̄. weale to be acquainted with; as where one calleth one Prodigall, or spend-thrift: for albeit it be expedient for the Common wealth, that no man misspend his estate, for that the Common wealth hath as it were an interest in euery priuat Subiects state, yet this is rather his owne hurt, than any other mans, and that which he spends away vnthriftily, commonly turnes to an other better subiects gaine, whereby the Common wealth is reléeued in one, that it lost in an other; and for the most part there is no great corruption of manners in the example thereof.

A great while it was before the Lawes of this Land tooke knowledge of Diffamations, as counting them things belonging to the Spirituall Law, so they were dulie Term▪ 12. H. 7. fol. 22. Regist. pag. 49. prosecuted, as may appeare by certein Iudgements & con­sultations which haue issued out thereon: but now let men [Page 193] prosecute them neuer so duely, yet Prohibitions goe out on them daily, and sundry others are drawne to the common Law Courts by action of the case; wherein they haue so in­franchised themselues, as that they take vpon them to con­fine the Ecclesiasticall Law how far it shall goe therein. Which limitations notwithstanding, as far as I can con­ceiue, are but distinctions without differences, and so are in very déed but bare Synonomies, that is, diuerse names expres­sing one thing: for all the words in the said limitation infer no more than this, that Ecclesiasticall men are not to deale in matters of diffamation, but where the matter of diffama­tion is only Ecclesiasticall; and yet I reuerence the author thereof as a great man, and of like excellencie in this Law, as Papinian was in the other Law, & this I thinke to be com­mendation enough, for neuer any Lawyer in former age had more commendation, or eulogie of wit than him­selfe had.

In the first of these cases, if a man procéed by ordinarie C. ad L. Iullam repetundarum. l. 1. & 2. [...] de ordin. cognition. c. dile­ctus. ff. de aqua pl [...]. arcenda. l. 1. §. denique. L. Proc [...]lus. & l. fluminum in [...]in. ff de dāno in­fecto. ff de regul iuris. l. factum. § non videtur. course of Law, either for the punishment of the sin, as by pre­senting the offender to the Ordinarie or indicting him bee­fore the Temporall Iudge, or by admonishing him by any charitable denunciation, with purpose to amend him, and to recall him from such offensiue waies as hee is charged to walke in: Or doe any thing in Iudgement for the defence of his owne cause, as in obiecting some thing against the party himselfe or his witnesses, either for the eleuating or discredi­ting the truth of the cause, or the testimonie of the witnesses; there can be no aduantage taken against him, for he cannot be said to diffame, which vseth the libertie the Law giues him: albeit in this case some aduise that a man shall obiect none of these matters against another in iudgement, but when his cause necessarily requires such things to be spoken for the defence therof, and that the partie that obiecteth them doe protest he doth it not with a calumnious minde, but that the defence of his cause otherwise would not bee iustified.

But if any man doe any of these things malitiously, with [Page 194] purpose rather to vtter his owne cankred stomake, than that L. Labeo de su­pell. legat. C. de famosis li­bel. l. 1. ff. ad. l. Aquile­am l. si ita vul­neratus. he would benefit the common wealth thereby, then is he pu­nishable: for although it be behooueful for the common wealth that bad mens faults should be manifested, that so wicked­nesse may be punished, yet is it not fit they should be vttered in reproach and choller.

Of the second sort, although there be some that conteine pettie crimes, yet are they many times so friuolous, as that they yéeld no action: for friuolous and smal things the Law regardeth not.

For such Diffamations as rise vpon defects, if the defects be such that the contagion thereof is to be feared, vnlesse the people be forwarned of the danger that may ensue thereon, as in cases of Leprosie, the Plague, the French Pox, and other like infectuous diseases, and that it be reuealed with a sincere minde rather to cause men to refraine their companie for fear of the infection, than of any malitious humor against the party, thereby to reproach him, it is no Diffamation. But if it be vttered in any spléene or choller against the par­tie defectiue, then is it actionable; for it is an vnciuile part to C. quando & quib. quarta pars. l. 2. lib. 10. lay open another mans defects: but if the defects bee such as it nothing auaileth the cōmon wealth they should be known; as where a man obiecteth against another any imperfection of his minde, or deformitie of his bodie, which hee had from his cradle, or hath happened to him by any accident without any default of his, and cannot be easily remedied; or repro­cheth him with any thing in his state or condition, where­with he is not iustly to be charged, neither is there any iust cause offered the diffamor why he should vse such disgracefull speeches against the other, than is it altogether punishable: For that such things tend onely to contumelie and despite, which the Law séeketh by al meanes to represse, for that ther­by charitie betwéene man and man is violated, and the peace of the common wealth is many times broken and disturbed.

The procéeding in these causes in the Ciuile Law was of two sorts: for it was either ad publicam vindictam, or else, ad pri­uatum interesse, as the partie iniuried made his choice therof.

[Page 195] Ad publicā vindictā, was when the partie Diffamed, sought ff ad L. Corneli­am. l in constitu­tionibus. §. vlt. to haue the Diffamer recant his words, or to vndergo some o­pen & infamous punishmēt for his rash & malitious speeches, wherby it might be publickly knowne abroad he did the other wrong.

But Ad priuatum interesse, was when he sought not the re­calling of the slaunderous speeches which were giuen out a­gainst ff de verborum obl [...]gation. l sti­pulationem. §. plané. ff de re iudicat. L. siqui [...] ab alio. him, but esteemed his credit at some great rate (as that he would not for a thousand pounds, or more or lesse quantity according as the worth and calling of the person is, haue had such speeches gone out of him) and so seekes to haue his cre­dit salued by recompence in money, as the Iudge or Iurie, vpon proofe of his worth and place, shall esteeme it and tax it. In these Actions, he that sued ad publicam vindictam, and had followed it so far, as that he had brought it to a Recantation, or a publicke disgrace, could not haue recompence of his cre­dit by money, saue onely in case of commutation: neither hee that had got his credit valued by money, could haue a publike disgrace also inflicted for his satisfaction, but what way he had chosen, with that he must haue rested contented, for that irè­ful mens wraths otherwise would neuer haue bin satisfied, & the prosecution of these actions otherwise wold be cōfounded.

These two kinds of procéedings the Princes and Sages of former ages seeme to haue sorted to the two kindes of Iu­risdiction that are amongst vs, the one Spirituall, the other Temporall: and therefore the Law of the Land it selfe saith in a cause of Diffamation, when money is not demanded, but a thing done for punishment of sin, which is all one, as when the Ciuilians say, when it is done ad publicam vindictā, it shall be tried in the spiritual courts: wherupon by argument of cō ­trary sense it followeth, that where the punishment of sin is not required, but amends in money is demanded, there it is to be tried in the temporal Court, for the law would that euery man should haue his remedy agréeable to reason in what sort him best liketh. And therfore be the fault what it may be, that the words of y^e Diffamation do sound vnto, as long as it stāds but in words, & the party doth not take vpon him to iustifie the [Page 196] matter that is comprised vnder those words, and doth séeke but for the punishment of the slanderous words only, so long it is to be tryed at the Spirituall Law; for the Law speaketh in generall in cases of Diffamation, where punishment of sin only is required: so that where a man is called Traitor, Felon, or Murtherer, or any other crime belonging vnto the Cōmon Law, being euery one of them words of great diffamation, so the partie therein séeke punishment onely, and not his priuat interest, there the Spiritual Law is to hold plea there­of: For where the Law doth not distinguish, there neither ought we to distinguish; but the Law hath said in general, that causes of Diffamation, whose prosecution is thus quali­fied, doe belong vnto the triall of the spiritual Law: and ther­fore euen those cases before remembred where the party fol­loweth this kind of prosecution, ought by that Law to belong vnto the Spirituall court, as on the contrarie side, Spiritual causes of Diffamation being propounded to a pecuniarie end ought to be ordered in a Temporall Court.

But where any man takes vpon him to iustifie the crime that he hath obiected, there either Court is to hold plea of the crime that properly belongeth to that Court, for that now no longer words are in question, but matter is in tryal, whether the partie diffamed hath indéed committed that offence that he is charged withall or no; which can bee tried in no other Court, than in that to which it doth properly appertaine. And that this was the Course aunciently held in matters of diffa­mation betwéene the Ecclesiasticall and Common Law, it is manifest by the Statute of 2. of Edward the 3. chapter 11. 2. Edw. 3. c. 11. where, although the Statute taxeth the peruerse dealing of such as when they had béene indicted before the Sherifes in their Retorne, & after deliuered by Inquest before the Iu­stice of the Assise, did sue the indictors in the Spiritual Court, surmising against them that they had diffamed them, and therefore in that case forbad the like suits; for that Iustice thereby was hindered, and many people were feared to indict Offenders: yet that Statute plainly sheweth that in all o­ther cases of Diffamation rising out of Temporall crimes be­side [Page 197] this, the Ecclesiasticall Law had the cognisaunce: and that this was forbidden, it was not for that, that words of this nature, could not be censured at the Ecclesiasticall Law, when punishment of sin only is required, but for that it was not fit that those things which had béene once ordered in one Court, should be called againe to examination in another Court: and therefore the generall procéeding in matters of Diffamation, is not there prohibited, but the particuler cros­sing of matters after iudgement is there reprehended.

So that, that distinction I haue here before spoken of, which taketh vpon it to determine when a case of Diffamati­on is of the Temporal cognisance, & when of the Ecclesiasti­cal, cannot here take place: for that it is contrarie to the former Statute or Decrée that diuided these cases into Temporall or Ecclesiasticall cognisance by the varietie of the prosecution thereof, and that it is contrarie to the auncient practise that hath confirmed this prosecution in either Court, but specially in the Ecclesiasticall Court, which hath still holden the triall of such Diffamations wherein sin hath béene onely sought to be punished, vntill now of late, that men haue stept ouer the bankes of their authoritie and confounded either Iurisdicti­on with the promiscuous acts one of another; when as the Statute it selfe is plaine, that the authors of this Statute or Decrée, whethersoeuer you call it, which set these bounds to either law, in procéeding vpon matters of Diffamation, respected not so much the qualitie of the crime, vpon which the Diffamation grew, as the manner of procéeding therein, ayming in the one at publicke vindict, which is to be sought out of the Ecclesiasticall law, and in the other at priuat inte­rest, which is to be had out of the Temporall Law.

Neither is an Action of Diffamation, a matter of so light esteeme or qualitie (a mans fame or good name being in e­qual ballance with his life) as that it should be drawne away to be attendant on any other action that is of smaller weight or importance than it selfe is: for this is one of those Actions which for the speciall preheminence thereof, are called Actio­nes praeindiciales, that is, such that draw smaller causes vnto [Page 198] them, but themselues are drawne of none other, but such as are like principal or greater than themselues are. So that vn­lesse the manner of procéeding bring these causes vnder the compasse of the common Law, in such sort as I haue before shewed the coopling of them with another matter of the same Law, will hardly bring them vnder the triall thereof: For that there be few actions greater than it selfe is, so that if the crime be Ecclesiasticall, howsoeuer it toucheth a Temporall cause, the tryall shall be still at the Ecclesiasticall Law. And the same that I say of Diffamations rising out of Eccle­siasticall crimes, I hold also to bee true in Diffamations springing out of Temporall crimes, where punishment is required for the offence committed, and amends in money is not demaunded, vnlesse happely that grow of penance inioy­ned, which the offender wil redéeme by giuing money to the Iudge, or to the party grieued. And this I take to be a far bet­ter limitation for either Law, hauing the ground of the Ciuil Law, and a statute of the Common Law, and common rea­son it selfe for it, than the other deuise is, which so distin­guisheth this businesse, as still it makes it rest in the mouth of the Iudge, which cause of Diffamation is méere spiritual, and which not, which were not to be done if there were cléere dealing in the matter: for Lawes are so to be made, as that as little as may be, bee left to the discretion of the Iudge, but all be expressed as far as the nature of the cause will giue leaue: which albeit it be hard to doe, for the varietie of the cases that euery day happen, neuer thought on before, yet that is to be laboured so far as may be; for this libertie of lea­uing many things to the Iudges discretion, is many times great occasion of confusion in Iudicature, saying sometimes this and sometimes that, as his priuat humor shall lead him: and therefore a plaine distinction betwéene both the Lawes were best, that euery man may see and say what is proper to either of them.

And thus far as concerning matters of Diffamati­on. Now followeth that I speake of matters of Bastardie.

Bastardie is an vnlawfull state of birth disabled by diuine [Page 199] and humane Lawes to succéed in inheritance.

Of Bastards, some are begot and borne of single women, (in which ranke also I put widowes) some other of married women.

Of single women some are such as a man may make his wife, if himselfe bee sole and vnmarried, as those that are kept as Concubines in place of a mans wife; some other are such as a man cannot make his wife, although himselfe bee sole and vnmaried, for that either they are alreadie pre­contracted to some other, or that they be in so néere a degrée of affinitie or consanguinitie one to the other, that the mar­riage would bee damnable, and the issue thereof vnlawfull.

Of such as are begotten of single women, by single men, who are in case to marrie them if they will, some are called by the Ciuile Law Filij Naturales, because they were begot by such as they held for their wiues, and yet were not their wiues, who might be legitimat by sundry waies, as hereaf­ter shall be shewed.

Some other begot vpon single women, if they were begot in vage lust, without any purpose to hold such a one for a Concubine, but vpon a desire onely to satisfie a mans present Lust, whether they were begotten by married men or single men were called Spurij, who for the most part are putatiue children, and their Father is not other­wise knowne than by the mothers confession, which some­times saith true, sometimes otherwise. Isidor saith, they were so called because they were borne out of puritie, for that such kinde of lust is contrarie to holy Matrimonie, whose bed is vndefiled, and therefore the other is corrupt and abho­minable.

But where any was borne of a woman single or mar­ried, that prostituted her selfe to euery mans pleasure, and made publicke profession of her selfe to be an harlot, such as are they whom the Law calleth Scorta, these were called Manzeres.

Those which were begotten of maried women were cald No­thi, because they séemed to be his childrē whom y^e mariage doth [Page 200] shew, but are not, no otherwise than some feauers are called Nothae, that is, bastard feauers, because they immitate the tertian or quartan Feauer in heat and other accidents, but yet are neither tertians or quartans, as the learned Phisiti­ans wel know: but these are counted so to be bastards, if ei­ther the husband were so long absent from his wife, as by no possibilitie of Nature the child could be his; or that the Adul­terer and Adulteresse were so knowne to kéepe company to­gether, as that by iust account of time, it could not fall out to be any other mans child but the Adulterers himselfe: and yet in these very cases within this Realme, vnlesse the husband bee all the time of the impossibilitie beyond the Seas, the Rule of the Law holds true, Pater is est quem nuptia de­monstrant.

The most nefarious and last kind of bastards are they whom the Law calleth Incestuosi, which are begot betwéene ascendents and descendents in infinitum, and betwéen colla­terals, so far as the Diuine Prohibition and the right inter­pretation thereof doth stretch it selfe.

The effects of these sorts of bastardies are diuerse.

First, it staineth the bloud, for that he that is a bastard can neither challenge Honour nor Armes from the Father or Mother, for that he was begot and borne out of Matrimonie which is the first step to Honour: and therefore the Apostle calleth Marriage honorable, whereupon it must follow that the opposite thereof is shame; for, albeit it be no sin for a bastard to be a bastard, yet is it a defect in him to be such a one, and a thing easily subiect to reproch.

Secondly, it repelleth him that is a bastard, from all suc­cession descending from the Father or the mother, whether it be in goods or Lands, vnlesse there be some other collaterall, prouision made for the same: for that all such Lawes and sta­tutes as are made to any of these purposes, were intended to the benefit of such as are Legitimat, and are next of kin by lawfull succession, and not by vnlawfull coniunction.

To Legitimat him that was a bastard, when there could no clame be made vnto his birthright but by grace, among [Page 201] the Romans were sundry wayes; first where the Father of the Bastard, they being both single persons, married the woman by whom he begot the child; secondly where the fa­ther did by his last will and Testament, or by some publike instrument subscribed by witnesse, name him to be his natu­rall and lawfull sonne, or simply his sonne, without the addi­tion of any of these two words, base, or natural, & therwithall did make him his heyre, which could not be, but in such cases only, where the father had no other naturall & lawfull child left aliue.

Thirdly, whereas the Prince by his rescript, or the Se­nate by their decrée, did doe any one that credyt, as to grant them the fauor of legitimation, which was done for the most part in such cases only, wheras eyther the father of the child, or the child himselfe, offered himselfe to be attendant on the Court or Prince.

In this Realme none of the foresaid legitimations take place, as far as I can learne, but only that which is done by Parliament, and that verie rarely; for beside those that King Henry the 8. did in the varietie and mutabilitie of his mind, 28. 8. cap. 7. towards his owne issue, I think there cannot be many exam­ples shewed: for, as for that which is wrought by subsequent 1. Mar. 1. par­liamen. cap. 1. Marriage, being a thing auntiently pressed by the Clergie of this Land, to be admytted in like sort, as it is vsed in other Lands, where the Ecclesiastical Law taketh place; it was re­iected by the Earles and Barons with one voice, and an­swere made that they would not change the Lawes of the Realme in that point, which to that time had bin vsed and approued. All these cases of Bastardie in other Lands, whi­ther they be such, or not such, are triable by the Ecclesiasti­call Law; But here with vs it is questionable to what Law, and how far they doe appertaine, the Ecclesiasticall or Temporall.

For the matter of Bastardie, what it is, the Ecclesiasticall Law, & the Temporall differ not, but there is a diuersitie be­twéene them in the prosecution therof, for the Ecclesiasticall Law bringeth it two waies in Iudgement; the one incident­ly, [Page 202] the other principally, but the Common Law maketh two sorts thereof the one generall, the other speciall: But first of the Ecclesiasticall diuision, then of the temporall.

Bastardie is then said to be incidently propounded, when it is laied in bar of some other thing, that is principally com­mensed; as when one sueth for an inheritance that he preten­deth is due vnto him by his natiuitie, an other crosseth him therein, by obiecting against him bastardie, with purpose to exclude him from his action in the inheritance: here the barre is in the incident, because it comes exclusiuely to the action of inheritance, but the action for the inheritance it selfe was in the principall, for that it was begun in consideration of the inheritance, and not with intent to proue himselfe legi­timate; which happilie he neuer dreamed of when he first entered his action for the inheritance. In which case he which is charged with the bastardie, may require himselfe to be admitted to proue himselfe legitimate, before the Ec­clesiasticall Iudge, & to be pronounced to be such a one, Ad Curiam enim Regiam non pertinet agnoscere de Bastardia: Glanuill Lib. 7. cap. 13. Against which the Law of the Land doth not oppose it selfe, but acknowledge it to be the right of the Church. And yet to auoid all subtil & surrepticious dealing in this behalf, it hath 9. Hen. 6. cap. 11 set downe a wary and cautelous forme of procéeding, by which the same shall be brought vnto the Ordinary, & such as haue interest in the suit, may haue notice therof, and time to obiect in forme of Law against the proofes and witnesses of him that pretends himselfe to be Mulier, if they so think good: and what shall be certified herein by the Ordinarie, as concerning the natiuitie of him that is burthened to be a Bastard, (that is, whither he were borne before or after his Glanuill Lib. 7. cap. 15. Parents marriage) shall be supplied in the kings Court, eyther by Iudging for, or against the inheritance.

But Bastardie is then taken to be principally propoun­ded, when eyther one finding himselfe to be gréeued with some malicious spéech of his aduersary reproching him with bastardy, or himself fearing to be impeched in his good name, or right, doth take a course to cléere his natiuitie, by calling [Page 203] into the law, him or them by whom he is reproched, or feareth to be impeached in his right and credit, to see him, to prooue himself legitimate, & to alleage & obiect against it, if they oght haue, or can, to the contrarie: which if eyther they doe not, or doing to the vtmost what they can, can bring no good matter against his proofe, but that it stands still good and effectuall in Law to all intents & purposes whatsoeuer (although perhaps hereby he shall not be able to carry the inheritance, both for that it apperteineth not to the Ecclesiasticall Law, to Iudge of lands, tenements, or hereditaments, & also for that there is a precise forme set downe by statute, how suits of this na­ture shall be recouered) yet if no oppositor or contradictor ap­peare herein, & the suit was only taken in hand against such, as eyther openly reproched him, or secretly buzzed abroad slanderous spéeches, as concerning his legitimation: it is not to be doubted, but by an accident also it wil be good for the in­heritance it selfe, for where a mans legitimation, is suffici­ently prooued, thereon followeth all things which naturally thereto belong. But if any man vrge the forme of the sta­tute, 9. Hen. 6. cap. 11. being interessed therein, then must it necessarily be fol­lowed, for that otherwise it would be thought, all that was done before, so far as it may concerne the inheritance, al­though it were but in a consequence, were done by collusion. This kind of procéeding hath bin much more in vse in former times than it is now, & neuer any opposition made against it: but now it goeth not altogether cléer without contradiction, as many other things are offensiuely taken, which notwith­standing haue good ground, & sufficient warrant for them.

And so far as concerning the Ecclesiasticall procéedings in this businesse: Now to the temporall sorts of them.

Generall Bastardie is so called, because it comes in inci­dently, and is in grosse obiected against some that sueth in a matter principall, to disappoint his suit. This suit because it is of the Ecclesiasticall cognisance, it is sent by the Kings writ to the Ordinary with certeine additions for more per­spicuitie of the inquirie thereof; as that whether he that is charged with the Bastardie, were borne in lawfull Matri­monie, [Page 204] or out of Matrimonie, or whether he were borne be­fore his Father & Mother were lawfully contracted together in Matrimonie, or after. All which the Ordinarie makes Lib. Intrac. fol. 35. inquirie vpon by his owne ordinarie and pastorall authori­tie; for that matters of Bastardie doe originally belong to the Ecclesiasticall Court, and not to the Temporall Court: And as he findes the trueth of the matter by due examina­tion to be thus, or that, so he pronounceth for the same in his owne Consistorie, and makes certificat thereupon to the kings Court accordingly; and as he pronounceth, so the tem­porall Iudges follow his sentence in their Iudgements, eyther for or against the inheritance that is in question.

Speciall Bastardy they say is that, where the Matrimony Bracton. is confessed, but the prioritie or posterioritie of the Natiuitie of him whose byrth is in question, is controuersed; which to my thinking, if I conceiue aright, is no other thing than the generall bastardie, transposed in words, but agreeing in sub­stance & matter with the other: for euen these things which they pretend, make speciall Bastardie, are parts and mem­bers of the generall bastardie, and are eyther confessed or in­quired vpon by vertue of the Kings writ in the same: For first for the Matrimonie that is here mentioned, it is there agnised both by the plaintife in pleading of it, and the defen­dant in the answering thereto, & therefore the plaintifes plea is thus; thou art a bastard, for that thou wast borne before thy parents were lawfully contracted together in Marriage, or before theyr marriage was solemnized in the face of the Church; to which the defendants replie is, I am no bastard for that I was borne in lawfull matrimony, or that I was borne after that my father and mother were lawfully mar­ried together, in both which you sée, there is a mariage con­fessed, & the question onely is of the priority or posteriority of the natiuitie of him that is charged withall, whither it hapned before, or after his parents marriage, which as they hold is the other member of speciall bastardie: and yet this prioritie or posterioritie of natiuitie, by vertue of the Kings writ, comes no lesse in inquirie to the Ordinary in the case of [Page 205] the generall bastardie, than they make it to be trauersable in the speciall bastardie; and therfore the writ to the Ordinary for generall bastardie is conceiued in this manner. viz. In­quiratis Lib. Intrac. fol. 35. vtrum praedictus A. pars rea, genitus vel natus fuit ante matrimonium contractum inter talem patrem suum, et talem G [...]anuill Lib. 7. cap. 15. matrem suam, vel post. So that eyther they must consesse there is no such bastardy, as they make shew there is, diuerse from that that is tried before the Ecclesiastical Iudge, or that themselues do confound the members that should diuide the same, and make them one, or the other, as them list; for both simply they cannot be, vnlesse they be distinguished with other notes and differences, than hitherto I find they are. But to say the truth, if these things be well weyghed and considered, speciall Bastardy is nothing else, but the defi­nition of the generall, and the generall againe is nothing but the definite of the speciall: for whosoeuer is borne out, or before lawfull Matrimonie, he is a bastard, and he againe is a bastard that is borne before or out of lawful matrimony, so that these things to be a bastard, and to be borne out of lawfull matrimony are conuertible one with the other: so then as it were very hard to make a diuorce betwéene these things that are so néere in nature one to the other, being con­uertible termes one to the other, so hard again it were in po­licie to disioyne these things in triall, that are so neere in affi­nitie one to the other, because they are the same in substance & nature as the other are, and therfore eodem iure censeri de­bent, 1 [...]. q. ca. 2. cog­no [...]imus. then nè continentiae causarū diuidantur, which is no lesse absurditie in Law, than it is a grosnesse in other learning, to deny a principle, or generall Maxime of the profession.

And so far hitherto as concerning the reasons & arguments, that may be brought against this speciall Bastardy. Now it resteth that I shew by ancient precedents, both these sorts of Bastardy haue appertained to the Ecclesiastical Courts on­ly, and the first precedent is in the incident, the other in the principall: and the precedent is no lesse auntient than Henry the seconds time, as that which hapned vnder Alexander the third, about the yeare of our Lord 1160. & the case is this.

[Page 206] A certaine man of Norwich Diocesse called R. H. had issue Ca. Lator. ext. qui filij sunt legitimi. I. H. who had a sonne called C. H. I. H. deceasing before R. H. his father, C. H. succéeded in his Grandfathers in he­ritance, his said Grandfather being dead; but M. H. brother to the said Grandfather, pretending the said I. H. was a Ba­stard, draweth the said C. H. into the Temporall Court vpon the inheritance, whereupon C. H. called the said M. H. into the Bishop of Norwich his Court, for the triall of his natiui­tie; but the Bishop long protracting the cause, C. H. appealed to the Pope, who delegated the same cause to the Bishop of Excester, and the Abbot of Hereforde, with order, That if the said M. H. should not within two Monethes, prooue that which he obiected against C. H. that then they should Inti­mate the same to the seculer Iudge, before whom the inheri­tance was in question, that he should not stay any longer vp­on the question of legitimation, but procéed to Iudgement in the cause of the inheritance. Which president though it be long before the Statute of Bastardie made by Henry the 6. and so no writ went from the temporall Court for the certifi­cat therof: yet it shewes that the Temporall Iudges in those daies did not procéed to iudgement in the principall cause, be­fore the incident were decided by the Ordinary; & that they counted bastardy then to be of the Ecclesiast. cognisance; and that it was lawful for him that was pretēded to be a bastard, to appeal from his Ordinary, if either the Ordinary detracted the determination therof, or were suspected of parciality.

And thus far of the incident. There is an other much like precedent to this in the same Kings dayes, but that is in the principall, for that the inheritance came not first in question, but the legitimation it selfe, and the case is as followeth. A certain man called Raphe, kept one Analine, the wife of one Ca. Causam. ext. qui filij sunt le­gitim [...]. Allin, by whom he was supposed to haue begot one Agatha, who also being married, had a sonne called Richard; Raphe going beyond the Sea, left Richard and his Mother Agatha in possession of all his goods & lands; but newes being after brought, that the said Raphe was dead beyond sea, Frauncis the brother of the said Raphe, spoyled the said Richard of the [Page 207] possession of all the goods & lands he had of the said Raphe his grandfather, for that he did pretend the said Agatha his niece & Mother of the said Richard was not borne of lawfull Ma­trimonie, so that neither shée her selfe, nor her sonne ought to succéed the brother of the said Frauncis, but that the inheri­tance thereof did belong vnto himselfe: whereupon the said Richard being thus spoiled by Frauncis his great vncle, ob­tained letters of restitution to the Bishop of London, the B. of Worcester, & the B. of Excester, vnder this forme; That before they entred into the principall cause, which was this, whether the said Agatha were borne in lawfull Matrimonie or not, they should restore the said Richard to his Grandfa­thers inheritance. But the Bishop of Rome after vnderstan­ding by the said Delegats, that the plea of inheritance with­in this Realme, did not belong vnto the Church, but vnto the King, recald that part of his rescript, which concerned the re­stitution of the said Richard to his inheritance, & gaue order to the foresaid Bishops, to procéed in the cause of legitima­tion; willing them to inquire whether the said Agatha were borne of the said Aneline in the life time of her husband Al­lin, and when shée dwelt & cohabited with him, as with her husband, or whether the said Raphe, father of the said Aga­tha, kept the said Aneline openly & publikely, while the said Allin yet liued; And if they found it to be so, then they should pronounce her the said Agatha to be a Bastard, for that Ane­line her Mother could not be counted to be a wife, but a whore, which defyling her husbands bed, presumed to kéep company with an other, her husband yet being aliue: But if they found it otherwise, then they should pronounce her the said Agatha to be legitimate. All which was done after the death of the said Raph and Aneline, as the Decretall it selfe shewes: Neyther was there any authoritie that opposed it selfe against that procéeding, but held it to be good and law­full, though it were in tearmes of speciall Bastardy, for then that which they now call speciall Bastardy, was not borne. Besides hereby it appeareth, that the Ordinaries then did not only procéed in cases of Bastardy incidently, that is, when [Page 208] a suit was before begun in the Common Law, vpon a triall of inheritance, & that by writ from the Temporall Courts, but euen originally, & that to prepare way vnto inheritance, or any other good that was like to accrue vnto a man by suc­cession, or to auoyd any inconuenience that might keep him from promotion, as may appeare by this practize following.

Priests in the beginning of the Raigne of Henry the 3. Constitut. Oth [...]n. innotuit de vxo­vati [...] à Beneficijs amouendis. yet married secretly, & their Children were counted capable of all inheritance, and other benefits that might grow vnto them by lawfull Marriage, so that they were able to proue that their parents were lawfully married together by wit­nesses, or instruments: which manie Children did, eyther vpon hope of some preferment that by succession, or other­wise was like to come vnto them, or to auoid some inconue­nience that otherwise might light vpon them for the want of that proofe, some their parents yet liuing, others their pa­rents being dead, and the procéedings before the Ordinarie was holden good, to all intents & purposes, euen in the Com­mon Law, for otherwise they would not haue so frequented it: for as yet there was made no positiue Law against Mar­riages of Priests, or Ministers, but the Church of Rome then plotting against it, for that by that they pretended the cure of Soules was neglected, & the substance of the Church wasted and dissipated, did by Otho then Legate a Latere to Gregory the 9. order by a Constitution, that all such Mini­sters as were married, should be expelled from their Benefi­ces, & that their Wiues & Children should be excluded from all such liuelyhood, as the Fathers had got during the time of the Marriage, either by themselues, or by any middle person, & that the same should become due vnto the Church, wherein they did reséed, and that their children from that time forth should be disabled to inioy holy orders, vnlesse they were otherwise fauorably dispenced withall; which Constitution although it wrought to that effect, to barre Priests for that time of their Marriage, vntill the light of the Gospell burst out, and shewed that that doctrine was erronious, yet to all other effects, the procéeding in the case of Bastardie [Page 209] stood good as a thing due to be done by holy Church. And therefore Linwod comming long after, in his Catalogue that he maketh of Ecclesiasticall causes, reciteth Legitima­tion for one among the rest, for that in those daies there was no dispute or practise to the contrarie.

And thus [...]ar as concerning those things wherein the Ec­clesiasticall Law is hindered by the Temporall in their pro­ceedings contrarie to Law, Statute, and custome aunciently obserued, which was the third part of my generall diuision. Now it followeth that I shew wherin the Ecclesiastical law may be relieued, & so both the laws know their own bounds, and not one to ouerbeare the other as they doe at this day, to the great veration of the subiect, and the intollerable con­fusion of them both, which is the last part of this Treatise.

The meanes therefore to relieue the profession of the Ci­uile Law are two. The first is, by the restoring of those things which haue bin powerfully by the Common Law, ta­ken from them, & the bringing of them back againe vnto their old and wonted course: The other is by allowing them the practise of such things as are grieuances in the Common wealth, and fit to be reformed by some court, but yet are by no home-Law prouided for.

The first of these stands in two things, whereof the one is the right interpretation of those Lawes, statutes and cu­stomes which are written and deuised in the behalfe of the Ecclesiasticall Law. The other consisteth in the correcting and supplying of such Lawes and Statutes that are either superfluous or defectiue in the penning, made in the behalfe (as it is pretended) of the Ecclesiasticall profession, but yet by reason of the vnperfect penning thereof, are construed for the most part, against them.

The right interpretation of the Lawes, Statutes, and Customes pertaining to the practise, standeth as is preten­ded in the Iudges mouth, who notwithstanding hath that authoritie from the Soueraigne, and that not to iudge accor­ding as him best liketh, but according as the right of the cause doth require.

[Page 210] The supply or reforming of that which is ouerplus, or defe­ctiue, is in the Parliament, so notwithstanding as that the Prince euermore breatheth life into that which is done.

Lawes, Statuts, or Customes, are then best interpreted whenas the verie plaine and naturall sence of them is so sought after, and no forraine or strained exposition is mixt with them; for that turneth Iustice into wormewood, and Iudgement into gall: then that the Iudge be nōt to subtill in his interpretation, but follow such exposition of the Laws, as men of former age haue vsed to make, if they be not plain­ly absurd and erronious, for oft shifting of interpretations bréedeth great variance in mens states, among such as haue busie heads, & much discrediteth the Law it selfe, as though there were no certainty in it: with which although the sage Iudges of our time cannot bee charged, for oght that I know, yet (I cannot tell how) men much complaine that lawes are far otherwise construed in these daies than they were in former ages: which as it is an ordinarie complaint in the Temporall Courts, so it is not without cause, much lamented at in the spirituall Courts where the interpreta­tion vpon the thrée Statutes of Tiths made by King Hen­ry the eight, and Edward his son, among sundry other in­constancies of other Lawes, hath such great varietie of sence and vnderstanding in sundry points thereof, as that if the makers thereof were now aliue and the first expositors ther­of sate in place of Iudgement againe (the Statutes being measured by the interpretation they now make of them) would hardly acknowledge them either to bee the Statuts that they made, or the other did after expound, and declare: for euery of these Statutes, and the sence that was giuen of them, was wholy for the benefit of the Church, according to the tenor thereof, but as they now receiue explication, they are not onely not beneficiall vnto the Church, but the grea­test hynderance to the same that may be; for the words are made to iar with the sence, and the sence with the words, neither is there kept any right analogie in them: and therefore the Reuerend Iudges are to be intreated (because [Page 211] they challenge vnto themselues the opening of the statuts a­lone, albeit peraduenture that be yet sub Iudice, where the Statute of Ecclesiasticall causes is to bee interpreted) that they would recall such exorbitant interpretations as haue of late gone abroad vpon these Statutes, and restore them to their auncient sence and vnderstanding. No man can so cunningly cloake an interpretation, but another will be as cunning as he to spy it out, and then the discredit will be the Lawes. A small error (saith Aristotle) in the beginning, is Lib. 1. Poli [...]i [...]. a great one in the end, and he that goeth out of the way a little, the longer hee goeth on, the further he is off from the place his voyage was to: and therefore the spedier returne into the way againe is best. The old Prouerbe is; He that goeth plainly goeth surely, which may be best verified in the exposi­tion of the Law, if any where else; for commonly men offend no where more daungerously than vnder the authoritie of the Law, and therefore one saith very well, that There are two salts required in a Iudge, the one of knowledge, whereby hee may haue skill to Iudge vprightly; the o­ther of conscience, whereby hee may bee willing to iudge according to that as his skill leadeth him vnto: both which being in the graue Iudges, it is not to bee doubted, but they will bee easily induced to reuiue their owne, and their predecessors interpretations, and reduce such exor­bitant expositions as haue scaped out thereof vnto the right and naturall sence thereof: which if perhaps they shall bee loath to doe, for because it makes for them, or for some o­ther like partiall respect, then humble supplication is to bee made vnto his Maiestie, himselfe will be pleased to giue the right sence of those things which are in controuersie be­twéene both the Iurisdictions: for his Maiestie by commu­nicating his authoritie to his Iudges to expound his Lawes, doth not thereby abdicate the same from himselfe, but that he may assume it againe vnto him, when and as often as him pleaseth. Whose interpretation in that is to bee pre­ferred before theirs, first that his interpretation is impartial as hee that will not weaken his left side to make strong [Page 212] his right (for so are these Iurisdictions as they are referred vnto his politicke bodie) but will afford them equall grace and fauour, that he may haue like vse of them both either in [...] 1. num. 8. C. [...] L. 1. num. [...] C, eod. l omnes popu [...] ff. de in. stit. & iure. fortaine or domesticall businesse as occasion shall serue: then that his Iudges interpretation maketh right only to them be­twéene whom the cause is, but his highnesse exposition is a Law vnto all, from which it is not lawfull for any subtect to recéed, neither is reuersable by any, but by himselfe, vpon a second cogitation; or him that hath like authoritie as him­selfe hath: and therefore most fit to be interposed betweene Iurisdiction and Iurisdiction, that the one partie bee not Iudge against the other in his owne cause, which is both ab­surd and dangerous.

And let this suffice for the right interpretation of Lawes and Statuts: now it followeth that I speake something of the supplies that may be made to the defects that are in the same.

It is not to be doubted, but it was the full minde & intent of the Law-makers, which made those thrée Statutes to in­feoffe the Ecclesiastical Courts in the inheritance of all those causes that are comprised in those Statutes, saue those that are by speciall name exempted, and did by the said Statute, as it were deliuer vnto them full and quiet possession of the same, for euen so sundry braunches of the said Statute doe shew, as I haue elswhere made it manifest: and that there hath growne question vpon many points thereof, and that the professors of the Ecclesiasticall law haue béene inter­rupted in the quiet possession thereof, commeth of the vnper­fect penning of the same, and not of any iust title or claime that may be made by the porfessors of the other Law therun­to: but this is a thing not only proper to these thrée Statuts, but also Common to all other Statutes which are writ of a­ny Ecclesiasticall causes within this Land; which notwith­standing may be remedied, if it séem good vnto his sacred Ma­iestie & the rest of the wisdom of y^e land assembled together at any time for the making of wholsome Lawes and the refor­ming of the same, by supply of a few words in some places or [Page 213] periods that are defectiue, and yet kéeping the true meaning and sense of the same.

As for example in the statute of the two and thirtieth of Henry the eight in the § wherefore, néere the beginning of the same Statute, the Statute ordering, that all persons of this Realme and other of the Kings Dominions shall truely and effectually set out and pay all and singuler Tythes, accor­ding to the lawfull customes and vsages of the Parishes where they grow and become due: because there is a questi­on made where these customes and vsages shall bee tried in the Ecclesiasticall or Temporall Law; if these or the like words had beene added to the same (to be prooued before an Ecclesiastical Iudge after the form of the Ecclesiastical Law, & not elswhere) the whole matter had bin cleere for that point.

And whereas againe in the end of the same Statute, there be some good words tending to the appropriating of these matters of Tythes and Oblations and other Ecclesiasticall duties to the Ecclesiasticall Courts; as that the remedie for them shall be had in the Spirituall Court according to the ordinance of the first part of that Act, and not otherwise: yet because there is no penaltie to that act, busie men easily make a breach thereinto, for that Lawes without penalties, for the most part are weake and of no force: if therefore this or the like supply were made (if any man sue for these or like duties in any other Court, than in the Kings Ecclesiasticall Court, the partie so suing, to forseit the treble value of that which he sued for to be recouered in the kings Ecclesiasticall Court, where it ought to haue beene commenced by the way of Libell, or Articles, the one halfe therof shalbe to the king, the other to the partie grieued) many of these suits would easily be met withall. Neither is it to the purpose, that this is matter of mony and Lay fee that should be in this sort for­feited, and therefore is not Regularly to bee sued for in the Ecclesiasticall Court; yet because the cause is Ecclesiastical, vpon which the matter of forfaiture ariseth, it may bee verie well allowed, Ne continentiae causarum diuidantur: and for that ordinarily euery Iurisdiction that is wronged, may de­fend [Page 214] it selfe with a penaltie: beside, we do by the like right in the Ecclesiasticall courts, recouer expenses of suits in Law, fées of Aduocats and, procters and money for redemption of sin, so that it will be no strange matter to haue this kind of suit allowed vnto the Ecclesiasticall Court.

Further, whereas there are in the Statute of Edward the sixt, chapter 13. in the beginning almost of the said Statute, two clauses vnder paine of for faiture, one of treble value, for Tythes carried away before they were diuided, set out or a­greed for: The other of double value where the Tythes were hurt or impaired by the partie stopping or letting him that had interest therunto to carrie them away, or by withdraw­ing or carrying them away himselfe; and the same, is ordered by a clause in the second braunch thereof reaching vnto them both, for that a clause put in the end of two sentences, strea­cheth it selfe indifferently vnto them both, if there be no more reason it should belong to the one than the other, as there is not in this case (for if it were not so, the first penaltie had no order set downe, how it might be recouered) that the same shall be recouered according to the Kings Ecclesiastical Law: to which if there were added this word (onely, and not els­where, or otherwise) and they martialed in their right places there were nothing more sure or strong.

Moreouer, whereas in the first prouiso of that Statut it is decréed, that none shall be compelled to pay any manner of Tythes for any Here ditaments which by the Laws or Sta­tutes of this Realme, or by any Priuiledge, Prescription, or composition Reall, are not chargeable therewithall; where­by it is doubtfull in what Court the said Exemptions are to be alleaged: if there were inserted these words, or other of like nature (the said Lawes, Statutes, Priuiledges, Pre­scriptions, or Compositions Real to be alledged, argued, tra­uersed, and determined before the Ecclesiasticall Iudge on­ly according to the forme of the Ecclesiasticall Lawes, and not elswhere) vpon like for faiture of treble damages, as is a­foresaid, it would make this point sure vnto the Ecclesiasti­call Law.

[Page 215] Ouer and beside this, whereas in the same statute there is a discharge allowed to barren, heath, & wast ground, in some for not paiment of tithes, in other for the manner of paiment of them for the space of seauen yeares after the improuing and conuerting of them into Arrable ground or meadowe; it would make the matter plaine, which lawe shoulde haue the pronouncing thereupon, if there were added these or the like wordes (so the same ground be proued in forme of law in the Ecclesiasticall Court to be barren heath and wast.)

Lastly wheras in the said Statut among other limitations of causes wherin the Ecclesiasticall Iudge is not to deale by vertue of y^e said statut, there is one in these words, néer the end of the said statut (ne in any matter wherof the Kings Court of right ought to haue Iurisdiction) which limitation is so vage & large, that therout there may be forged as many diuers kinds of Prohibitions, as the Poets fained Vulcan euer made thunderboults for Iupiter. And therfore it were very wel & cōsonant to the good meaning of the said statut, this vagenes were restrained & reduced to a more certainty of matter by these or like words, By any antient law or statut of this land.

And so far as concerning the imperfection of the said three Statuts, and how they may be amended and made reducible to the first meaning and intent of the makers therof, by some smale supplie, alteration, or change of wordes, the sence and ground-work standing euer y^e same, according to the wisdom of his Maiestie & his great counsel assembled in parliament.

Now it followeth I shewe wherein the practise of the Ecclesiastical Law, vnder which I comprise the Ciuile Lawe so far as it is in vse among vs, may be increased to the benefit of the subiect & the inlargement of the profession without the preiudice of the common law. And that I may first begin of the pietie of Fathers towards children, & children againe to­wards their parents, which is the beginning of all common wealths, for euen Nature it selfe hath taught that not only in the most brutish people that be, but also setled it in y^e sauagest kind of beasts that are vpon the earth, the one to cherish that which it selfe hath brought out, and the other to loue againe [Page 216] that which hath brought it out: and yet, what Law is here in England, which prouideth for the one or the other, vnlesse it be the statut of the eight of Elizabeth? & that is but for poore folks children onely (where otherwise they should be a burthen to the Parish) but for the Parents themselues, or other children that are cast off, either by the negligence or the vnnatural­nesse of the one toward the other, there is no prouision at all. Yet by the Ciuile Law there is a purueiance made, whereby both the Father is compelled to acknowledge his child (if ff. de agnoscend. & alendu liberis vel parentib. C. de al [...]ndis li­beris vel paren­tib. ff. de ventre in­spiciendo, custo­diēdoque partu. ff. de offi [...]io pro­consu [...]is. l. nequic. quam §. de p [...]ano. there be any variance betwéene the husband and the wife vpon any Iealousie or suspicion of Adulterie, if the same can­not be prooued by the womans owne confession, by witnes­ses, by the act it selfe, or some other violent presumption) and to norish and maintaine the same; but if the fault appeare a­gainst her, and it be so sentenced by the Iudge, then may he as well refuse the one as the other: but for other children v­pon whom there is no such doubt, the Parents may be con­strained to maintaine, cloth, and féed them, and to set them out a Porcion of their goods, so that either the state and facul­tie of the Parents will beare it, or the children haue not de­serued to the contrarie, wherefore they should not in that sort be prouided for. And as the Father in this sort is bound vnto the Child, so the child againe is obliged vnto his Pa­rents to prouid for their sustenance, so far forth as their abi­litie will reach vnto: for it is very vnnaturall the Parents should want, so long as the children haue meanes to relieue them. In both which cases, if either the Parents refuse to admit of their Children, or the Children againe refuse to yéeld comfort vnto their Parents, the Iudge may interpose his authoritie, and inioyne each to maintaine other accor­ding to their abilitie, and as to his discretion shall séeme meet, which if any of them should deny to yéeld vnto, the Iudge may by Distresse of their goods taken and sold to the value thereof, compell them to performe his order: and yet that onely in case of Maintenance, and not to discharge debts wherein either of them stand bound vnto their creditors.

A man here in England dying and leauing his wife Exe­cutrix, [Page 217] shée after marrying, carrieth away all his state vnto her second busband, who giues & spends therof as him listeth without any regard of the children of the first husband, by whom all, or most of those goods came, insomuch as many times those children when they come to age, & are to goabroad into the world, they haue nothing to begin the world withal, whereby many of them come to beggerie, and others to more fearefull ends (for necessitie as the Prouerb hath it, is a hard weapon) neyther is there any meanes in this common wealth to releeue this mischiefe, for oght I can learne: but by the Ciuile Law there is verie good remedy, for by that Law neyther the woman suruiuing her husband, neyther the man C. de secundi [...] nuptijs tot. tit. suruiuing his wife, hauing issue betwéene them during the Matrimony haue the propertie of those goods, which either of them brought one to the other, and are left behind by the de­funct; but the propertie is the childrens of the deceased, & the vse or benefit his or hers only which doth suruiue, during his or her naturall life: which course if it were taken here in England, manie poore fatherlesse and motherlesse Children would be in better state than they are, for then howsoeuer their present state were hard, yet their future would be bet­ter, when they should be secured to inioy their fathers or mo­thers right: neither could such men or women which mar­rie, or are married with persons of this sort, much complaine if this Law were established here, for so should they haue, though not a perpetuitie in an other mans state, yet a long and beneficiall fruition thereof, euen so long as the partie in whom they were interessed did liue: but for the retorne thereof vnto the right owners, the Law is so scrupulous, that if the husband or wife doe remarry, it will haue him that is to marry the widdow bound with good suerties for due re­stitution of the defuncts part, vnto the children of the for­mer marriage.

An other inconuenience there is in Executors in this land Cosen german to the former, which goeth altogether vncon­trouled, whereby I gesse there is no Law in this land to cor­rect it. And that is, the trifling of Executors in paying of Le­gacies [Page 218] and bequests, vnder pretence of debts vnknowen, which they make shew they must prouide for, vpon danger of their owne indemnitie; whereby many Legacies are neuer paied, but stand as it were suspended vntil the day of Dome. Against this abuse the Ciuile Law hath two remedies; One by exacting bond of the Executor, that he shall pay the Lega­cies L. 1. §. 1. 2. & 3. ff. vt legatorum nomine cauea­tur. without fraud or deceit, according to the will of the de­funct; The other, that if he refuse so to do, then the Iudge may put the partie complaynant in the possession of that which is demanded: for it is not enough for the Heire or Executor to L. haec autem ff. si cui plus quam per Legem fal­cidiam. ff. de regulis iu­ris L. vani ti­moris. pretend a debt, to the end that he may stay the legacies which the testator hath giuen, in his hand, but he must make plain & manifest vnto the Iudge, there is such a debt owing, & that the suit therupon is either already begun, or very like to bee begun in verie short time, without fraud or collusion, other­wise many of those pretences & threats may be vaine & eluso­ry. And in case there be any such iust cause of feare in déed, or there be any such suit in truth commenced vpon the same, the L. Nisi si dolo §. si Legatari­us ff. si cui plus quam per legem falcidiam licu­ [...]rit. Executor may secure himself by bond or suertie from the Le­gatorie, that in case the debt be euicted of him, he shal repay to the Executor what he hath receiued: wherin, although it may be said, it is safer for the executor to secure himself by kéeping the Legacie stil in his hand, than to trust vpon suerty or other caution, for that these prouisions many times are fraile; yet since this kind of dealing is iniurious to the Legatorie, & the withholding therof, for the most part, hath no honest defence, but is grounded vpon deceit and couetousnesse, it were be­hoosefull for the Common wealth, such ill dealing were re­dressed: for so mens Wils, which are their last Ordinances, (than the which Princes haue granted no greater benefit to men, than that in their life time they may dispose how their goods shalbe bestowed after their death) shall haue that end ff. Si quis omissa causa testament. L. nam facit to­tum, l. 4 ff. de haeredib. institu­end. l. paterfa­milias. §. 3. the Testators themselues intended: which if they had known in their life time their Executors would not haue performed, they would neuer haue put them in trust as they did. Beside, hereby the names of Executors which now are charged with manifold imputations, by the ill dealing of some, shal by this [Page 219] means be vnburdened & restored vnto their former credit, which was, to discharge the trust that by the Defunct was re­posed vpon them: for the Will of the defunct cannot bee de­frauded without great sin.

An other mischiefe there is in Executors & Administrators, not only vncontroulable by the Law of this Land, but rather allowed & iustified by it; & that is when they haue once got the authoritie into their hands, & praysed all at the lowest rate, they wil sell away all at the highest price they can, & answere the poore Children, & Legatories, for whose good they were a­pointed Executors, at the value in the Inuentarie only, con­trarie to all right & reason: for by the law, an Executor is to sel ff. de reb. eoris qui sub tutela sunt sine decreto nō alienādis, vel obligādis. tot. tit. & ibi Bartol in rubrica. nothing of those things which are left vnto the Children, or Legatories, but such things only, which by keeping cannot be kept, or which being kept, will be charge able to the inheri­tance: or otherwise the Testator were so indebted, that his state must needs be sold, for the satisfying of the Creditors: or lastly, that he himselfe ordered by his Will something should be sold. But for such things as may be kept, & by kéeping will not be the worse, he oght precisely to preserue them, specially where the Testator hath bequeathed any thing in kind. And if he sel oght of those things which he ought not to sel, he may not sel it but by the decree of y^e Iudge interposed vpon y^e same, & vpon iust cause proued before him: wherin if it appear after, y^e Iudge was abused, by any false allegation & corrupt testimo­ny, the sale is void, & the Minor when he comes to his ful age, or within 5. years after, may reuerse & recouer that which is thus sold by collusion, out of the hands of him to whom it was sold, as being done against the authority of the law. And that it may be better vnderstood, how precise y^e law is in this point, & what things it alloweth may be sold without y^e decrée of the Iudge, & what not, I wil set downe the words of the Law it selfe, speaking of Tutors & gouernors of Puples; whose place Executors & Administrators do supply, so far forth as they haue y^e tuition & gouernāce of minors during their vnderage, C. de admini­strat tuto [...]m, vel curatorū, l. lex qu [...]. faithfully translated. And it is a law of Constantin the great, reprouing a former law of Seuerus the Emperor, which gaue [Page 220] leaue to Tutors and Curators to sell away al the gold, siluer, precious stone, apparrell, and other rich moueables the Te­stator had, and to bring the same into money, which turned greatly to the hinderance of many Orphans: whereupon Constantine after he had first ordered, nothing should bee sold of the pearl, precious stone, naperie, vtensels of the house and other necessarie stuffe and ornaments of the same, saith thus. Neither shall it be lawfull for them (meaning the Tu­tors or Curators) to sell the house wherein the Father died, and the child grew vp, wherein it is woe enough to the child not to sée his auncestors images not fastened vp, or els puld downe. Therefore let the house, and all other his moueable goods still remaine in the Patrimonie of the child, neither let any edifices or buildings, which came in good reparation with the inheritance, ruine or decay by collusion of the Tu­tor: but rather if the Father, or he whosoeuer the minor was heire vnto, left any building in decay, let the Tutor both by the Testimonie of the worke it selfe, and the faith of many be compelled to repaire it: for so the yearely rent will bring in more profit to the Minor, than the price of the things being deceiptfully sold vnder-foot, will doe the Minor any good. Neither doth this law only make prouision against Tutors, but also against immodest and intemperate women, which many times gage vnto their new married husbands, not only their owne state, but euen the state and liues of their children. Further, it crosseth the course of putting the chil­drens money to vsurie (notwithstanding aunciently it was thought, therein consisted all the strength of the Patrimo­nie) for that course is seldome long, scarcely continuall and stable, and that therby many times the money being lost the childrens state come to nothing: and therfore his conclusion is, The Tutor should sell nothing, without the order of the Iudge, sauing the Testators ouerworne apparrell, or those things which by kéeping could not be kept from corruption, and such cattell as were superfluous. Whereby it appeareth how carefull that age was to giue way to Executors by sale of the Testators goods, to make gaine of the Orphans; nei­ther [Page 221] is this age better than that, but that which was feared then, may be prouided for now, by like authoritie as was then.

In this Land a man dying, leauing Legacies to his chil­dren, and his wife Executrix, or dying intestate, and she ta­king administration, and in her second marriage bringing all her first husbands state, & her childrens portions vnto her second husband, and then dying, there is no remedie against the second husband, to recouer the said Legacies or porcions due vnto the children out of his hands, because he is neither Executor nor Administrator, and that he came not to those goods by wrong, but by the deliuerie of the Executrix, with whom he married: but yet by the Ciuill Law there is, and L. si & me ff. de rebus creditis si certum petatur. that by this claime, that the said goods came vnto his hands, and that it is no reason any should be made rich by my goods against my wil, for Legataries haue no action against any as Administrators in their owne wrong or hinderers of the per­formance of the last Wil of the deceased, but Executors only, & they then alone, when the party hauing it, holds it by wrong and not by Lawful deliuerie, which in this case is otherwise.

By the Law of this Land, there is no prouision to preserue the state of a prodigall person from spoile, which neither hath regard of time, nor end of spending, vnlesse the Father pro­uide for this mischiefe in his Will, or by some other good or­der in his life, but he is suffered to wast and spend his goods vntill there be nothing left (as though the Prince and Com­mon wealth had no interest in such a subiect, to sée he did not waste his state, and abuse his goods) whereby many great houses are ouerthrowne, and many children whom the Fa­thers carefully prouided for, neuer leauing raking and scra­ping all their life time, that their children after them might liue in great plentie and abundance, come to great shame and beggerie. But the Ciuill Law hath remedie for it: for the ff. de euratori [...]. furioso, & ali [...] extra minore [...] dando. Law counting such a man that is in this sort impotent in his déeds, howsoeuer he be otherwise sensible in his words, to be halfe mad, and to be a young man in his manners, how old soeuer otherwise he be in his yeares, sets a Curator ouer him [Page 222] for the preseruing & well ordering of their state, no otherwise than if they were children or mad men indéed, who so long haue power ouer them & their goods, vntil they come to sane maners to which if they once return y^e curators office ceaseth.

The like they doe to a widow or sole woman which liueth riotously, hauing neither regard of her fame, nor of her state. L. et mulieri. ff. eod.

I find an old practise aunciently vsed in the Ecclesiasticall courts, for restraining Executors or Administrators for dea­ling couenously alone in an Executorship or Administrator­ship, when there are more Executors named in a Will than one, or more Administrators deputed by the Ordinarie in an Administration than one, which were well if it were recald & brought back to his former vse againe. For now, as things stand many times one capricious fellow named an Executor in a Wil, or appointed Administrator by the Ordinary with some other wel meaning men, getting a start in this businesse of the rest, ingrosseth all into his owne hands, and without priuitie or concurrence of the other, selleth, releaseth, & dispo­seth all at his owne pleasure, contrarie to the mind either of the Testator, or the Ordinarie, who would not haue named so many in the Wil or Administration, but to the intent that all might or should execute and administer, & one communi­cate their acts with another. The contrarie whereof is many times very preiudiciall and hurtfull, to those that are to take benefit by the said Wil or Administration, who for the want of the due performance of this kind of procéeding, are defrau­ded of all that which in right or reason should haue come vn­to them, either by the Testators good-will, or by the benefit of the Law. And yet there is no remedie for this in law, so far as I know, for that al these making but one person in law, the Law yéelds no action to the one to sue the other: but yet the ancient practise of the Ecclesiastical Law hath remedy, which would redresse all this mischiefe, if it were cald againe to vse, & might go without controlment, as the equitie of the cause doth require. And the remedie is this, that such other of the Executors or Administrators as are in this sort interuerted from the execution of the Wil or Administration by the sub­tiltie [Page 223] of any like Executor or Administrator, should craue the assistance of the Iudge, & will him by vertue of his office, to call in such practick Executor or Administrator, and to com­maund him vnder paine of excommunication, he procéed no further in the sole execution therof, but cōmunicat all his acts & dealings with the rest of his Coexecutors or Coadministra­tors: which if it were so ordered, would make many mens Wils & Administrations better performed than they are, & a great sort of poore Orphans states more sure & certaine, than cōmonly they are in such executors or administrators hands.

And certainly in this case, there is some good vse of Super­uisors in dead mens Wils (whom many men merily iest at, calling them candle-holders, as though they could do nothing else in the execution therof, but hold the candle while the Exe­cutors tel the Defuncts money) if they might be permitted to put in practise that authoritie which the Law giueth them, and that is when they find any Executor deale fraudulently in the execution of any Testators Will, wherin they are na­med superuisors, or do ingrosse all the state of the Defunct in­to his hands, as hath bin before said, they cal him to a particu­ler accoūt, that it may be séen how the administration stands, & ech executor may cōmunicat to other their particuler receits & disbursments: which if any shal refuse to do, then may the superuisor make therof cōplaint vnto the Iudge, as though y^e ff. de admini­stratione tutorū. l. 3. §. 1. same man dealt not truly in the execution therof, who though perhaps in the beginning could not take bond of him for the true execution of the Will, because the Testator had made choice of him, & therin approued his faith, & that no man re­quired caution of him for any Legacie in the wil bequeathed, (in which case y^e Iudge might take bond of him for security of such legacies as are bequethed in the wil, yea though his faith hath bin approued by y^e Ordinary, as hath bin before remem­bred) yet may y^e Iudge in this case, if he find him iustly sus­spected of fraud & deceit, remoue him by the learning of that Law. For neither the Testator himselfe, if hee were a­liue Instit. de suspec­tis tutorib. vel curator. toto tit. againe, would indure him in this case, but would blot his name out of his Will, neither ought the Iudge to suffer [Page 224] him, whose care is to sée that dead mens Wils take their ef­fect, according to the Testators meaning. All which, the law hath prouision for, and for infinit things else of like good or­der in these cases, if they might be suffered to put them in ex­ecution without impeachment.

And so far as concerning those things wherein the Ciuile and the Ecclesiasticall Law might be relieued without pre­iudice to the common Law, for because they haue no practise thereof: and yet doe not I bring forth these as the onely cau­ses wherein the Ciuill and Ecclesiasticall Law may be licen­ced to deale in, ouer and besides the practise of those things that they haue alreadie, but that these are few among many other which might be sorted out, if so be there were any hope for the further enlargement of the profession. But now to the necessitie of the maintenance of the ciuill and Ecclesiasticall Law in this Realme, as they are now practised or ought to be practised, which was a thing first propounded, but last put in execution in this worke.

Albeit that which hath béene alreadie said as concerning the Ciuile and Ecclesiasticall Law may well imply the ne­cessarie preseruation of them both within this Land, yet because it was a thing I promised to shew in the beginning of this Treatise after I had gone ouer the rest of the parts of my diuision, I will in a word or two, make plaine the neces­sitie thereof.

And therefore for a ground of all the rest, I will assume this for a matter confessed, that euery man knowes, that e­uery well ordered Common wealth stands on two parts principally, the publicke part, which consisteth of the Prince and people, and the Ecclesiasticall part, which standeth in Sacris & Sacerdotibus. And therefore well said the Emperor, In authent. quō oportet ep̄os in princ. col. 1. Auth. de non a­lienand. & reb [...] Eccl. c. §. 1. Two of the greatest things that God euer gaue vnto the world (meaning earthly things) was the Empire or seculer gouernment whereby the outward man is ordered & made, as Aristole saith, bonus ciuis, that is, a good and loyall subiect: and the Priesthood whereby the inward man is ruled, and is made, as the said author testifieth, bonus vir, that is, a good [Page 225] and vertuous man, which are two wonderfull effects of the whole gouernment in general; neither can the one of these be wanting, but the other will bee ruinated and brought to desolation.

Secondly, no man is ignorant of this, but in politicke gouernment two things sway the whole state, the one is peace at home, and the other is war abroad: which as they haue their seasons, so they haue their causes and effects, the one from councell at home, the other from discipline abroad; neither can the one or the other of these be maintained, but by their priuate and proper Lawes.

Beside, in peace who séeth not, there is as much néed of vent by sea, for to benefit the common wealth by, either by importation of those things that wee want at home, or by exportation of those things that we abound with; as there is prouision to be made for the increasing and preseruing of those things that we haue rising and growing by land in our owne contrey, neither of which can be had or inioyed with­out their proper lawes fit and appertaining to either policie. And what Law is there that ordereth these businesses but the Ciuile law onely, which giueth a forme to Nauigation, and all occurrents that happen by sea, whether they bee in or a­bout the Nauigation it selfe or the contracts, or as it were contracts, that are made in, vpon, or beyond the same.

As a Legall forme is requisite in peace at home, and Ma­rine affaires abroad, that euery thing may haue his due ef­fect according to the right thereof, so also it is necessarie in warlike exploits vpon the Sea that euery action haue his limits and bounds, wherby Iustice may be ministred: which if it bee to bee obserued where lawfull war is held betwéene Prince and Prince, that euery one bee not left vnto his own lust, much more is it expedient to be put in vre in Piracies and other Sea-robberies, where the innocent is spoiled, and the spoiler is enriched. The redresse whereof is not, but by the Admirall Law, to whom the Princes of this Land haue graunted that authoritie.

[Page 226] For the often commerce of Princes with Princes, & the ne­gotiation that one state hath with another, there is nothing more necessarie, than frequent Embassages, wherby intelli­gence may be had what danger one State intendeth to ano­ther, & how the same may be preuented by Leagues or other­wise, and how the same may be made and maintained: I know not what Law serues better for all these ends and pur­poses than the Ciuile Law.

In matters that appertaine to the souls-health, the Prea­cher teacheth out of the word of God, wherein the right ser­uice of God standeth; he ministreth the Sacraments vnto the people, and instructeth them in other fundamental points of Religion: but it is the Ecclesiasticall Law that compelleth men to the due obseruance hereof, and punisheth the trans­gressors.

All men grant, that there is a prouision to be made for the minister, for that it is against reason that any man should go to warfare on his charges: but it is the Law of the Church that sets out this prouision, and yeeldeth remedie for the re­couerie thereof, if it be denied.

Nothing is more due vnto the dead, that that their last Wils should be obserued; for that it is such an ordinance as a man hath not in his power againe, when God hath once cald him hence, neither is there any thing that Princes haue more graciously granted vnto their subiects, than that in their life time they may dispose of that, which after they are dead, is none of theirs; and yet shall take place when they are not, as though yet they were theirs: in which prouisi­on the Ciuile and the Ecclesiastical Law, are aboue all other Lawes most Religious.

Christening, Wedding, Burying, wherby a man entreth into this world, conuerseth in the world, and returneth a­gaine vnto the earth from whence he was taken, and so after passeth to glorie, and euerlasting blisse, are euery one of the Ecclesiasticall cognisance.

How many men of great skill, such as few Princes haue greater in all kind of learning, are of this ranke, not only in [Page 227] the societie of them that professe this knowledge here in the chiefest citie of the Land, but also in both the vniuersities and in sundry other parts of this Realm not strangers, or forrei­ners, but home-borne subiects of the same saith, of the same Religion, of the same kindred, and familie, of like allegeance to the Prince, and seruice to the common wealth, as other his good subiects are, euen those that oppugne this profession chiefly? whose practise, if it be ouerthrowne, or prouision les­sened, not onely those that are now present, and make pro­fession of this knowledge shall be faine to turne their copie, but those that are futurely to come, wil change their professi­on, when they sée there is no reward or estimation belong­ing thereto: for it is Honour that nourisheth Arts, and no man will follow that profession that is out of count, and credit; but euery Father will say vnto his son in like sort as Ouids Father said to him, when hée saw him addict and giue himselfe wholy to Poetrie, Studium quid inutile tentas? It was aunciently said of the profession of these Lawes, Dat Iustinianus honores; but now it is so far off from that, that it confers Honours, as that it is almost a discredit for any man to bee a Ciuilian in this State, and the profession thereof doth scarce kéepe beggerie from the gate.

As God doth dispose his gouernment by Iustice and mercie (wherof notwithstanding mercie hath the su­preame place in the Lords Tabernacle, as that which was put aboue vpon the Arke, wherin were the two Tables Exod. 25. of stone, in which the Law was written, to which Iames 2. Saint Iames alluding, saith that Mercie tryumpheth o­uer Iudgement) so the Princes of this Land to the imi­tation of that heauenly representation, haue appointed two supreame seats of Gouernment within this Land, the one of Iustice, wherein nothing but the strict letter of the Law is obserued, the other of Mercie, wherein the rigor of the Law is tempered with the swéetnesse of equitie, which is nothing els but mercie qualifying the sharpnesse of Iustice: to either which Courts they haue sorted men [Page 228] fit for their skil and education to manage the same, that is, to the seat of Iustice, the professors of the Law of this Land, who may be thought best to know the Iustice of the same: but to the other they haue assigned the professors of the Ci­uile law, for that a great sort of titles of that law, are titles of equitie, as whatsoeuer is Ius praetorium, or Ius adilicium, with them is matter of equitie; so that they might séeme best able for their skill in these tytles (of which no other Law hath the like) to assist the Lord Chancellor in matters of conscience. Who though he be a man, for the most part, chosen by the Prince himselfe, out of the rest of the Sages of this Land, for his speciall good parts of learning and integritie aboue the rest (as now the Honorable person is that occupieth that place, who is as Tully said of that eloquent Orator Marcus Crassus, non vnus ex multis, sed vnus inter omnes prope singularis) so that they might be thought for their great and eminent wisdome in all things appertaining to their place, able to di­rect themselues; yet because it is, Diuinitatis potius qudm hu­manitatis, omnium rerum habere memoriam, & in nullo errare, as one well saith, It was prouidently done by Princes of for­mer ages, to ioyne to these great personages, men furnished with knowledge in these cases of conscience; wherein if they should at any time stick, they might be aduised by them that are assessors with them, what they find in the Law proporti­onable to the case in hand, that thereto they might square their decrée, or order accordingly; whose varietie in these ca­ses is such, that hardly there can fall out any case in practise, but there will be some law, in that learning, conformable vn­to it: which opportunitie of men furnished with this know­ledge for that seat, his Maiestie shall want, vnlesse the study of the Ciuile and Ecclesiasticall Law be maintained, which also for the cases of equitie and conscience therein, is called of the old writers, Aequitas Canonica.

And what reason gaue occasion to the precedent Princes to place men indowed with the skill of the Ciuile Law, in the court of Chancerie, the same also ministred to them minds to commit vnto the selfe same men, the ordering of their Courts [Page 229] of Requests: for that therein, for the most part, are handled poore miserable persons causes, as Widowes and Orphans, and other distressed people, whose cases wholly rely on pietie and conscience, as a fit subiect for that Law to deal in; which also will take a maime, if the studie of the Ciuile Law bee not vpholden.

So then, to deny a frée course to the Ciuile and Ecclesiasti­call Law in this Land, in such things as appertaine to their profession, or to abridge the maintenance thereof, is to spoile his Maiestie of a part of his Honour (whose glorie it is to be furnished with all sort of professions necessarie for his state, and beneficiall for his subiect) to weaken the state publicke, and to bereaue it of graue and fage men, to aduise the State in matters of doubt and controuersie betwéene forraine Na­tions and themselues, to disarme the Church of her faithfull friends and followers, and so to cut the sinewes (as much as in them lyeth) of Ecclesiasticall discipline, and to expose her to the téeth of those, who for these many yeares haue sought to deuour her vp: and so now would do it, if the mer­cifull prouidence of God, and the gracious eye of the Prince did not watch ouer her.

And so far of the necessitie of these two professions, and generally of the vse and disuse of the Ciuile and Ecclesiasti­call Law in this Land, and wherein it is ouerlaid by the Common Law, and how it may be relieued, if it seeme good vnto his Maiestie, and the wisdome of this Realme. All which I haue written not of any purpose to derogate from the credit of that Law, vnder which I was borne, and by which I hold that small maintenance that I haue: for I re­uerence it as a necessarie Law for this state, and make such reckoning of euerie of the professors in his place, as becom­meth me: but that it pitieth me, and not only me, but all those that tender good learning, and haue no preiudicat minde to­ward the Common Law, to sée two such Noble Sciences as the Ciuile and Ecclesiasticall Law are, so to be disgraced, as that there is no more reckoning made of them, or their pro­fessors, than if they were matters and men of no worth, and [Page 230] fit or apt for no seruice in the common wealth: and yet not­withstanding, the vse of them is so necessarie, as that the common wealth cannot want the seruice of them in matters of great importance to the State, which (if the profession should come to a downefall, as it is like shortly to doe, if it be no more cherished and made of than it is) will be sooner séene by the want of them, than is now perceiued by the hauing of them; and then perhaps, will the State lament for the losse of such a goodly Profession, when it will bee hardly re­couered againe, as the children of Israell did for the Tribe of Beniamin, when they had in one day slaine well nigh the whole number of them.