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 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 and countries were put together (I except none, ſaue ye 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 ye time of Maximinus, as it appeareth by Spartianus & Lampridius, in ye 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 ye ſtudy of the lawe hauing, as it were, ye firſt Elemēts of the whole profeſſion in this little Treatiſe; wheras otherwiſe without ye 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 〈 in non-Latin alphabet 〉 , for that it cōpriſeth in it ſelf, al whatſoeuer Iuſtinian drew out of 150000. verſes of the old bookes of the law.

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 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 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.

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 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 ye 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 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 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 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; 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 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 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 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 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 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, 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 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, 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, 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 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 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 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 friendes, in both which caſes they recouer all right and priuiledges they had in their owne common wealth before. By the Law all Subiects whatſoeuer are bound to ſerue the common wealth in warre, inſomuch that if any being preſt withdraw himſelfe, or his child from it, he is to be counted as a rebell, and for his puniſhment is to be baniſhed, and mulcted or fined in the greateſt part of his goods. As the priuiledges and rewards of Souldiors were many to incorage them to vertue and manhood; ſo their ſhames and puniſhments were great, to feare them from cowardice and vice: But among the reſt of the priuiledges of Souldiors, the old Souldiors were the greateſt. Of Subiects, ſome dwelt in Shires, and liued after their owne Lawes, and yet neuertheleſſe were made partakers of the honors of the Citie: ſome other were inhabitants onely in the common wealth, and had onely a houſe in the ſame place to dwell in, and had no right to beare office: ſome other were ſtraungers brought in, which were ruled by the Law of them among whom they dwelt. Amongſt thoſe that dwelt in Shires, the chiefeſt Magiſtrate was he whom they called Decurio, who was not ſent by the people of Rome thither (for he was a Magiſtrate of Magiſtrates) but elected by the people there; and his office was, to kéepe the treaſurie of the Countrey, to prouide victuall, exact tribute, and gouerne the ſtate there, in maner as our Shirifes doe here: His office was onely annuall, leaſt by libertie, and luſt of gouernment and continuance thereof it might grow into a tyrannie. Such as are Subiects, are to ſerue the common wealth in ſuch offices, places, and ſeruices, as their abilitie is fit for, and the neceſſitie of the common wealth requires. The ſeruices of the Common wealth were of thrée ſorts; Patrimoniall, ſuch as belong to euery mans patrimony to performe, which ſtood chiefly vpon payments and charges, which were to go out of euery mans inheritance towards the performance of ſuch burthen as lay vpon him by law, cuſtome, or commaund of him that had power thereto: Perſonall, which were to be performed by the care and induſtrie of the partie and his corporall labour, without expence of his purſe. Mixt, which required both care of the mind, and labour of the bodie, and expence of the purſe, and are impoſed aſwell in conſideration of the thing, as the perſon, which euery ſubiect is to vndergo, vnleſſe by the Law, or by the indulgence of the Prince they are excuſed; as ſome are excuſed by reaſon of olde age, ſome by yong age, ſome for their dignitie, ſome for their calling, ſome for their ſtate of bodie, ſome for that they ſerue in the neceſſarie ſeruices of the Common wealth at home, or abrode, as Imbaſſadors doe, ſome for that they are neceſſary places of ſeruices for Gods Religion, as cathedrall Churches, & other Churches are, ſome for that they are good and neceſſarie places for Seminaries for the Common wealth, for learning and ſuch other imployments, as Colledges, Societies, and Schooles of learnings and nurture are. Legates and Imbaſſadors had immunitie from all publike ſeruices, not only the time of their embaſſage, but alſo two yeare after their returne; They were called Legates, in that they were choſen as fit men, out of many; their perſon was ſacred both at home and abrode, ſo that no man might lay violent hands on them without breach of the Law of Nations. Such as are Magiſtrats of cities ought ſo to gouerne, that no negligence may be iuſtly imputed vnto them, otherwiſe they are to anſwere it, and that when their office is expyred, they giue vp a iuſt accompt, both of what they haue receiued, & what they haue laied out, & pay in the reſidue, if there be any. Gouernors of Cities, together with the conſent of the Burgeſſes therof, may ſet downe ſuch orders and decrées, as are for the benefit & well ordering thereof, which are to be obſerued of all thoſe which are Inhabitants therof, and being once wel and duely ſet downe, are not to be reuerſed, but to the good of the Citie or Comminalty. New publike works, ſuch as are good for the Common weale euery one may make without the leaue of the Prince, vnleſſe it be done for emulation, or cauſe of diſcord; but for old works, in which ſtands the ſecuritie of the Common wealth, as Caſtles, towers, gates, and wals of Cities, nothing is to be done or innouated in them without the Princes warrant, neyther is it lawfull for any man to graue his name in any publike work, vnles it be his at whoſe coſt the work is done. Faires are authorized by Princes only & are inuented for trade of marchandize, & vttering of wares, which Countrymen haue cauſe to buy, or ſell: and haue their priuileges, that no man in any Faire can be arreſted for any priuat debt; they are called Nundinae therupon, that euery ninth day they were holden, either in one place or other: He that for x. yeares ſpace intermitteth to vſe his Fayre, loſeth the priuiledge therof. If any make any promiſe to a Citie or Common wealth to do any thing vpon certain cauſe, as that he might be made Conſul, or that 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 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; 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 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 ioyned thereunto, hoped to repreſſe: After he hath ſet downe a full and ſound confeſſion of the Chriſtian faith, conformable to the Primitiue Church, next he addeth a title of the holie Church it ſelfe, and of her priuiledges, which either concerne Eccleſiaſticall mens perſons themſelues, or their ſtate, and ſubſtance, or the actions one Eccleſiaſticall man had againſt an other, or with or againſt Lay perſons: where alſo he proſecuteth the degrées of Prieſts, or Miniſters, their offices, orders, and how the ſame are to be come by, (that is without bribes or Simonie, or other worldly reſpect ſaue the worth of the perſon onely) and the rights of holie places. Prieſts are ſo called, becauſe they were conſecrated, and as it were ſeuered from the reſt of the people, and giuen vp to God: which alſo were called Elders, eyther becauſe they were ſo in age, or ought to be in ſuch manners, and carefull cariage of themſelues. Amongeſt Prieſts, or Miniſters, Biſhops haue the firſt place, who are as it were the Ouerſeers and Superintendents of the reſt, ſo called of their watchfulneſſe, care, labour, and faithfulneſſe in teaching the people, and doing other dueties, which they owe vnto the Church. The loweſt degrée of men among the Eccleſiaſticall hierarchy were the Clarkes, ſo called of their lot by which they were choſen and allotted to Gods ſeruice. To Biſhops Prieſts, and other of that rank, did appertaine the care of Hoſpitals, whereof ſome were for Orphans, ſome for Infants, ſome for Impotent and diſeaſed perſons, ſome for Poore people, ſome for Strangers, & other like miſerable perſons, & therefore together with the title of Biſhops & Clarks is ioyned the title of Hoſpitals, or Almes-houſes. In place next after the Biſhops themſelues, comes their power & audience; for albeit the chiefeſt office of a Biſhop is to inſtruct the people in the doctrine of the word, & in good example of life: yet foraſmuch as all will not be obedient vnto the word, neither brought by the perſuaſion thereof to good nurture, & to be kept in order, & the eminency of the degrée, wherin the Biſhops are placed, is not ſufficient to kéepe the people in obedience without ſome power & iuriſdiction, and becauſe the Church it ſelfe is the mother and maintainer of Iuſtice, therefore there is by the Emperor himſelfe, and his predeceſſors, as many as profeſſed Chriſtianitie, certaine peculiar iuriſdictions Eccleſiaſticall, aſſigned to the Biſhops, more worthy then the Ciuill, ouer perſons and cauſes Eccleſiaſticall, ſuch as touch the Soule and Conſcience, or do appertaine to any charitable or godlie vſes: and ouer the Laitie ſo far forth as eyther the Laitie themſelues haue bin content to ſubmit themſelues vnto their gouernment, that is ſo far, as eyther it concernes their Soules health, or the outward gouernment of the Church in things decent or comly, or that it concernes poore and miſerable perſons, ſuch as widowes, orphans, captiues, and ſuch other like helpleſſe people are, or where the Ciuile Magiſtrates cannot be come by, or doth voluntarily delay iudgement; in all which anciently a Biſhop was to performe double fayth and ſanctitie, firſt of an vncorrupt Iudge, and then of a holy Biſhop. But in many of theſe matters in theſe dayes, the Laitie will not ſuffer themſelues to be controld, and therefore hath taken away moſt of theſe dealings from them, yea, euen in charitable cauſes. Immediatly followeth a title of Heretickes, Maniches, Samaritans, Anabaptiſts, Apoſtataes, abuſers of the Croſſe of Chriſt, Iewes, and worſhippers of the hoaſt of heauen, Pagans, and of theyr Temples and Sacrifices; whom the Biſhop is not only to confute by learning, but alſo to ſuppreſſe by authoritie, for he hath not the Spirituall ſword in vaine. The Heretickes, Iewes, and Pagans ſhall not haue Chriſtian men and women to be their ſeruants: that ſuch as flie to the Church for Sanctuarie, or claime the ayde thereof, ſhall not be drawen from thence, vnleſſe the offence be haynous, and done of a pretenſed and purpoſed malice, in which caſe no Immunitie is to be allowed them, but wicked people are to be puniſhed according to their deſert, agréeable to the word of God it ſelfe, which would not haue his Altar be a refuge vnto the wicked: And ſo far of that part of publike right, which appertayneth to the Prieſtes, or Miniſters, and their Function, which was omitted in the Digeſt, but proſecuted in the Code. Now it followeth, that wyth like breuitie I run ouer the thrée laſt Bookes of the Code, which themſelues were rather ſhadowed in the Digeſt, in the title of the right of the Exchequer, then in any iuſt proportion handled.

The firſt therefore of them ſetteth out, what is the right of the Exchequer, and in what things it ſtandeth, as in goods excheted, becauſe there is no Heire vnto them, or that they are forfeyted by any offence worthie death, or otherwiſe. How ſuch as are in debt to the Exchequer, and their ſuerties are to be ſued. Of the right of thoſe things which the Exchequer ſels by outcry, where he that offereth moſt carrieth it away, and how the ſame may be reuoked, vnleſſe all rights and ceremonies bee ſolemnly performed therein. How things that are in Common betwéen the Exchequer and priuat men, may be ſold, and that the Exchequer euict nothing that it hath once ſold, for that, it were a thing againſt the dignitie of the Exchequer, & would terrifie priuat men for bargaining with it. Of thoſe that haue borrowed money out of the publicke receipts, and what penaltie they incurre, if they repay it not at their daies couenanted, ſometimes the forfaiture of foure double of that they haue borrowed, ſometimes danger of life it ſelfe. That in caſes of penalties, the Exchequer be not preferred before ſuch as the Offender was truely indebted vnto, but that they be firſt ſerued, and then the Exchequer haue onely that which is left. What vſurie the Exchequer may take, that is for money lent, and not for ſuch ſums as grow out of Mulcts and 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 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 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, 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 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 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 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 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 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 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 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 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 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 〈 in non-Latin alphabet 〉 , 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.

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 inheritance.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Further, it prouideth that the name of the Prince for the time being, be put 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.

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 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 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 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 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, ye law calleth paſſage money, in which kind of vſury, a man cannot go beyond the 100. part.

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 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 and good parts only.

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

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

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

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

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

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

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

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

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

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

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

That Biſhops be conuented before their Metropolitans.

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

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

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

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

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

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

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

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

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

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

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

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

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

That ſuch as 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 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 〈 in non-Latin alphabet 〉 , 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 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 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 〈 in non-Latin alphabet 〉 , 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, 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 〈 in non-Latin alphabet 〉 , & 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 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 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 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 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 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 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.

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 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, 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.

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

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

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

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

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

And firſt for vſe of the Sea it ſelfe; the Law holds it to be ff ad legem Rhodian. de 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.

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,

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 ye great equitie and indifferencie that is in them) that as well the Maſter or Purſer of the ſhip himſelf ſhal contribute for the preſeruation of his ſhip, as alſo the paſſengers for ſuch ware as they haue in the ſhip, of what ſort ſoeuer it be, albeit happily it be but of ſmal waight, as pearls, pretious ſtones, and ſuch like; and if perchance there be ſome paſſengers in the ſhip, who haue no ware nor marchandize in it, yet becauſe themſelues are a burthen to the ſhip, eſtimate is to be made of his or their apparell, rings, and Iewels, according to which he or they are to contribute towards the loſſe of ſuch things as are caſt out into the ſea: neither is there any thing in the whole ſhip excepted, ſaue onely thoſe things which are put therein to be ſpent, for the common good of all, as victuals, fuell, and ſuch like; for thoſe things are not brought in for any one priuat mans vſe, but for the benefit and ſeruice of all: and ſo much the rather, for that if victuals faile, or other like neceſſaries want, euery one muſt contribute thereto, or impart of that which hee hath for his owne priuat prouiſion; but of mens owne bodies, vnleſſe they be ſeruants, there is no rate to be ſet, becauſe a fréemans body cannot be eſtéemed.

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

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

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

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

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

Beſide in matters of wracke there is, as it were, a contract betwéene them which haue loſt their goods by ſhipwrack, and them vpon whoſe Lands the ſaid goods are driuen, that the ſame be reſtored to them or their heires, if they come in due time to claime the ſame: and therfore it is preciſely forbid by L. ne quid. ff. de incendio, ruina, & naufragio. the Law, that no man ſhall meddle with ſuch goods as are wrecked, and ſuch as are proued to haue ſtolne any thing thereout are holden for robbers; for that ſuch goods being caſt on land and recouered out of the ſea, remaine ſtill his who was the owner thereof, and deſcend vpon his heire, neither excheat vnto the King, neither to any other whom the King L. 1. lib. 11. C. de naufragiis. hath priuiledged in this behalfe. And therfore the Emperor Conſtantine the great, ſaith worthily in this caſe; If any ſhip at any time by ſhipwrack be driuen vnto the ſhore or touch at any Land let the owners haue it, and let not my Exchequer meddle with it: for what right hath my Exchequer in another mans calamitie, ſo that it ſhould hunt after gaine in ſuch a wofull caſe as this is? And yet if no kindred appeare within a yeare and a day, or appearing, proue not the goods ſhipwracked to be theirs, the goods come to the Exchequer euen by that Law: ſo much that law condemneth careleſneſſe, which is written Vigilantibus & 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 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 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 〈 in non-Latin alphabet 〉 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 〈 in non-Latin alphabet 〉 , 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 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 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, 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 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 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 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 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 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 〈 in non-Latin alphabet 〉 , 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, 〈 in non-Latin alphabet 〉 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 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 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. 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 〈 in non-Latin alphabet 〉 ſiue 〈 in non-Latin alphabet 〉 , 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 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 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 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 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 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 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 in the generall: for in ſtead of them there are ſubſtituted in their places holy worſhips, tending to the like end of godlineſſe thoſe other did pretend, but void of thoſe ſuperſtitious meanes the other thought to pleaſe God by; and ſo in ſtead of the Maſſe, hath come in the holy Communion; and in place of worſhipping of Saints, hath ſucceeded a godly remembrance, and glorifying of God in his Saints, and ſo of the reſt whereof there is any right vſe within the Church.

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

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

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

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

So that it is a very méere conceit, that a certaine gentleman, very learned and eloquent, of late hath written, that Chauncellers are men but of late vpſtart in the world, and that the ſloth of biſhops hath brought in Chauncelors, wheras in very déed, Chauncellers are equall, or néere equall in time to Biſhops themſelues, as both the Law it ſelfe, and Stories do ſhew: yea Chauncellers are ſo neceſſarie Baldus l. aliquando ff. de officio Proconſulis. officers to Biſhops, that euery Biſhop muſt of neceſſitie haue a Chaunceller, and if any Biſhop would ſéeme to be compleat within himſelfe, that he néeded not a Chaunceller, yet may the Archbiſhop of the Prouince wherein he is, compell Couar. lib. 3. variarum reſolut. c. 20. num. 4. S. 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 was executed, & put to ſhame, not as a Clerk, but as a lay malefactor; which regard towards Eccleſiaſticall men, it were well it were ſtill reteined, both becauſe the conſideration thereof is reuerent & worthy the dignity of the Miniſterie, whoſe office is moſt honorable, & alſo for that it is more auncient than any Papiſticall immunitie is.

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

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

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

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

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

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

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

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

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

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

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

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

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

The Prohibitions of the law, as haue beene before ſhewed, are neither many, nor much repined at, becauſe they containe a neceſſarie diſtinction betwéene Iuriſdiction and Iuriſdiction, and imply the kings right, and ſubiectes benefit: but the 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 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 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 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 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 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 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 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 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 Will be lawfully prooued before the Ordinarie, yet the bequeſts are not good, eyther in reſpect of the perſon to whom the bequeſts are made, or in reſpect of the thing that is not deuiſable in all, or in part; as by the Common Law, lands in Capite cannot be deuiſed, more than for two parts, but in Socage the deuiſe is good for all; And by the Cuſtome of the Citie of London, & ſome other places of the land, a man can bequeath no more than his deathes part, and if he do, his bequeſt is void for the reſt; but in other places of the land a man may bequeath all. By the Ciuile Law a man can bequeath nothing to a Traytor, or an Hereticke, or an vnlawfull Colledge, or Companie (vnleſſe perhaps it be for the aliment, or maintenance of them in extreame pouertie, that they dye not for hunger, which is the worke of charitie) and if he doe, the legacie thereof is void to all intents & purpoſes. So then, the Probate of the Ordinarie in matters of land, neyther helpeth, nor hindreth the right of the deuiſe it ſelfe, but is a declaration only of the dead Mans doome vttered before ſuch, and ſuch witneſſes: which taketh his ſtrength not ſo much from the Probat, as from the Law, and is teſtified only by the Probat, that the ſame was declared by the Teſtator, in the preſence of the witneſſes therein named, to be his true & Laſt Will. So that no man herein is to be offended with the Ordinary, as preſuming of a matter not appertayning vnto him: for this teſtification in all Law & conſcience doth belong vnto him, to giue allowance ſo far vnto tho defuncts Will, as it is auouched before him to be his laſt act and déed in that behalfe: but rather they are in this caſe to thank the Ordinary, that he by that act of his hath preſerued the memorie of that, which otherwiſe perhaps would haue bin loſt & periſhed, to the great hurt of the Common wealth, and others which haue priuate intereſt therein.

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

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

De omni Annona, decima garba eſt Deo reddita, & ideo reddenda: Si quis gregem Equarum habuerit, pullum reddat 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, & 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 Tythes, beſt ſuted with the generall cuſtome that was then vſed thoroughout all Europe in paying thereof.

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

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

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

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

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

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

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

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

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

After the deceaſe of king Henry, king Edward his ſonne 2. Edw. 6. c. 13. tendering in like ſort the ſtate of the Clergie, the benefit of his ſubiects, and the practiſe of the Eccleſiaſticall Courts of this Land, made a Statute, wherby he did not onely ratify, confirme, and allow ſuch ſtatutes as his father had formerly made, but did further order, that euery of the kings ſubiects from thenceforth ſhould iuſtly and truely without fraud or deceipt ſet out and pay all manner of prediall Tythes in their proper kinde, as they did riſe and happen, in ſuch manner as had béene paid within the fortie yeares next before the making of that act, or of right or cuſtome ought to haue beene paid, with certaine forfeitures 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 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 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 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 which Rule, as Temporall Lawyers are to deale in Temporall Cuſtomes, and ſpirituall men are not to intermedle therin, ſo alſo Eccleſiaſticall Lawyers are to deale in Eccleſiaſtical cauſes, and that temporal Lawyers are not to buſie themſelues thereabout.

And that this was the intent of the king, when he firſt receiued the Church into his protection, with all the priuiledges therof, may appeare hereby, that hauing vnited both the Iuriſdictions in his owne perſon, hee did not iumble them both together, as now they are, but kept them diſtinct, one from the other; not only in authoriſing the Eccleſiaſticall Courts that were before, but alſo in vſing the verie words and phraſes that the Iuriſdictionaries Eccleſiaſticall did vſe euery where in their writings, euen theſe words whereupon men now take hold to frame Prohibitions vpon, viz. (according to the laudable cuſtoms & vſages of the pariſh and places where ſuch Tythes growe) which were the words of Innocent the third, in the Decretals vpon the title of Tythe long before theſe ſtatuts were made, or any other ſtatuts concerning the true payment of tyths; and Linwod in the ſame title of tithes often vſeth the very ſelfe ſame words and phraſes that the other doth: ſo that if theſe words made no Prohibition before the ſtatute (as I think, it cannot well be ſhewed to the contrarie) neither ought they to do it now ſince the ſtatute, for that they are taken ſtill in the Church buſineſſe, and not in a temporall matter: whoſe gouernment, although it be vnder one and the ſelfe ſame Prince that the Temporall ſtate is, yet is it diſtinct from the ſame, as euer it hath bin ſince there hath bin any ſetled forme of Church gouernment many common 1. Corinth. 5. wealth, as may appear both by the example of S. Paul; which neuer goeth to any temporal power to puniſh the inceſtuous perſon, although there were ſundry lawes then both in Gréeke and Latine written of theſe matters, but doth it by the ſpirituall ſword alone: and alſo by that, that in matters of Iar for worldly cauſes betwéen brother and brother, he forbids ſuch as were new Chriſtians, to go to law before 1. Corinth. 6. Infidels, but aduiſeth them rather to appoint Iudges among themſelues to decide ſuch controuerſies: which, albeit in thoſe daies was ment as wel of lay Chriſtians, as of the miniſters of the Goſpell, for that the number of them then was ſmall, and the cauſes of ſuit they had one againſt another were not many, and might eaſily be ended by one and the ſelfe ſame conſiſtorie; yet when the number of the Chriſtians increaſed, and the Church got ſome reſt from perſecution, the Iuriſdiction was againe diuided, and as there were Seculer Courts appointed by Princes, wherin Temporal mens cauſes and Lay buſineſſes were heard, ſo there were alſo by the ſame authoritie erected Eccleſiaſticall Courts and Biſhops C. de epiſcopall audienta 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 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 ſay, as concerning the limits or bounds of a Pariſh, as twelue meane men of the countrie, who are vpon like depoſitions to giue vp their verdict. But for the limits of Biſhoprickes, I acknowledge that they are Temporall, for that they were not primarily deſigned out by Eccleſiaſticall men, and theyr direction, but were aſſigned to Prouinces, or Shires, firſt deſcribed and diſtynguiſhed by Princes: but for Pariſhes, neyther reaſon nor antiquitie concurs with them, that they ſhould be temporall, or that they ſhould be vſurped or challenged to be of the temporall cogniſance.

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

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

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

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

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

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

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

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

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

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

The beginning whereof, although it be hard for me to finde out, becauſe there is ſmall memory thereof left in Stories; yet as far as I can by all probabilities coniecture, this great alteration in Eccleſiaſticall matters, came by two occaſions: the one by the violence of the Laitie, thruſting themſelues into theſe Eccleſiaſticall rights, contrarie to the firſt inſtitution thereof; for when they were firſt receyued into the Chriſtian world, they were receyued and yéelded to, for the benefit of the Clergie only, as in former time vnder the Law, they had béen for the vſe of the Prieſtes and Leuites only: The other was the too too much curioſitie of Schoolmen, who beeing not content with the ſimple entertaynment of Tythes into the Church, as the auncient fathers 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, ſpeaking of Tythes, ſayth thus, I hold it neceſſarie that this Law or precept be obſerued, according to the letter: and vpon the 22. of Mathew, he thinketh Chriſts words vttered there as concerning Tythe, to be a precept no leſſe neceſſarie for the vſe of Chriſtians, than they had bin for the Iewes: and therefore he accounteth Tythe neyther ceremoniall, nor Iudiciall, but morall and perpetuall. Cyprian in his lxvj. Epiſtle, aduiſeth the Clergie of his time, ſince they had Tythes allotted vnto them for their maintenance, they ſhould not abſent themſelues from Gods ſeruice. Chryſoſtome vpon the viij. of the Actes, vſeth this argument to perſuade huſbandmen to pay theyr Tythes truely vnto the Church, that it is good for them ſo to doe, for that there are continuall prayers and interceſſions made for them by the Miniſterie. Ierome vpon Tymothy ſayeth, The precept of payment of Tythes, is aſwell to be vnderſtood in the Chriſtian people, as in the Iewes. Reade Ambroſe, vpon his Lent Sermon, and Auguſtine vpon his xliiij. Homily, and Gregory vpon his xvj. Homily, and you ſhall finde no leſſe plaine places for the continuance of the payment of Tythes among the Chriſtians, than the former were. Adde to theſe the practiſe of Dioniſius himſelfe, who by Ieromes account flouriſhed in the yeare 266. who not only diuided out Pariſhes, drawing the example thereof from Saint Paul, who firſt appointed Biſhops in Cityes, but alſo aſſigned orderly to euerie Pariſh his Tythes. All which held in the Chriſtian common wealth, in a decent and comely ſort, vntill the irruption of the Hunnes, Goathes, and Vandals, vpon the Chriſtian world, who firſt inuading Italy vnder the Emperour Iuſtinian, did for many yeares ſo harrow the whole Countrie, and ſpecially Lumbardie, as that they left not almoſt a man of excellent Religion any where vnperſecuted, ouerturned Churches, burnt Libraries, ouerthrew Schooles of learning, and to be ſhort, what wickedneſſe did they not? inſomuch as Gregorie the great, being otherwiſe a verie good man, and one that did relye himſelfe vpon the prouidence of almightie God, verily thought and taught that the end of all things was then come: but after thoſe fierce and barbarous 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 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 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 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 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 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, (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 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.

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 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; 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 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 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 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 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 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 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 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 ye 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.

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 ye 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 ye prieſts and Leuites of the Law: But that the Lord annexed theſe tyths by Moſes to the Prieſts & Leuits for their maintnance during the time of the diſpenſing of the myſteries vnder the law, this is poſitiue, & therfore changed by the good chriſtians in the primitiue church from the Iews Eccleſiaſtiques to the Chriſtian Eccleſiaſtiques.

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

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

A Biſhop being owner of a Manor yet not diuided into Tenancies, nor hauing any Parſonage erected vpon it, ordeineth the one and diuideth out the other: here the Biſhop being ſeiſed in the whole Manor before the ſaid diuiſion, becauſe he is a clergie man, is ſuppoſed to be in poſſeſſion aſwel of the Tythes as of the Manor it ſelfe, and therefore after creating a 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: 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 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 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 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 feare thoſe men which began this worthy worke, had not ſuch a ſincere minde towards Almightie God in this reformation, as they ought to haue had, but that they ſought therin their owne aduancement more than they did the glorie of of God; which I doubt me, leſt God hath remembred, in ſome of their poſteritie, which being left in great ſtate, haue eyther ſo vaniſht away, as that their place is ſcarſe to be found, or elſe doe ſo continue, as that their poſteritie euer ſince hath bin as it were in a minoritie, ſo that they are as though they were not, great in place, but ſmal in reputation: yea, the thrée fayreſt branches or boughes that euer were in the world, iſſuing out of that trée, vnder whoſe ſhadow all theſe things were done, are quite gone, and liue by no other poſteritie, but by their owne worthy fame and glorious acts which they did in their life time; which alſo now being gone, doe follow them, & ſo ſhall doe vnto the worlds end, for they were all thrée memorable worthies in their place. So dangerous a thing it is to mixt our owne ambition, or any other carnall conſideration with Gods glory. But God be thanked ſuch is the careful conſideration of our moſt gratious Gouernor, that now is, in this behalf, that it may be hoped, that God will remember him, and his poſteritie in goodneſſe, according to all that good that he hath done for the Church, that he and his poſteritie after him, may ſit vpon his ſeat ſo long as the Sunne & Moone indures: for certeinly his godly and gratious comportment, hath béen ſuch hitherto, as that he may be verily thought to be a man according vnto the hart of God, as Dauid was. But now to the loſſe that comes to the Church by theſe impropriations.

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

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 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 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.

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 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 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 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 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 〈 in non-Latin alphabet 〉 : 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, 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 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 〈 in non-Latin alphabet 〉 , 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.

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 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 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.

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 ye Diffamation do ſound vnto, as long as it ſtāds but in words, & the party doth not take vpon him to iuſtifie the 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 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 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 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 ye mariage doth 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 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, 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 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, 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 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.

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 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 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 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.

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 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 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 ye 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 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 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.

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 ye 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 ye 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 ye 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 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, 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 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 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 ye Iudge interpoſed vpon ye ſame, & vpon iuſt cauſe proued before him: wherin if it appear after, ye 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 ye law is in this point, & what things it alloweth may be ſold without ye 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 ye 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 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 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 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 ye 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 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 ye 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 ye 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 ye Ordinary, as hath bin before remembred) yet may ye 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 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 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.

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 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 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 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 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.