To the extent possible under law, the Text Creation Partnership has waived all copyright and related or neighboring rights to this keyboarded and encoded edition of the work described above, according to the terms of the CC0 1.0 Public Domain Dedication (http://creativecommons.org/publicdomain/zero/1.0/). This waiver does not extend to any page images or other supplementary files associated with this work, which may be protected by copyright or other license restrictions. Please go to http://www.textcreationpartnership.org/ for more information.
IN the last CCCC. yeers, beside the establishment of Parochiall right in Tithes, and the various Opinions touching the immediat Law whereby they are due; the Practice of most Christian Nations, as it might be had out of their Laws and Lawiers, is faithfully related.
And to what is there brought, adde that of the Law of France, wher∣by the right of the Tithe of all the Minesis claimd by x the King, as a droit de Souerainte, according as it is declard by two Edicts published of Charles the IX. and verified also by the Parlament of Paris. accor∣ding also, the old Imperiall Law was. But through all here, you may see that the Customes Statutes and Common Laws, especially of France, Italie and Spaine, and of most other, if not all States, permit not, so fauourably for the Clergie, an exaction of them, or suite to be so ge∣nerally brought for them, as the Laws of England did before the Sta∣tutes of Dissolution of Monasteries, and still do, if you exempt those cases which are founded only vpon those Statutes. What Statute or practice is in this Kingdome, that equals, the Carolines of Spaine, or the Philippine of France, which are generall Laws for Customes (qua∣tenus Customes) de non Decimando? And whereas England vntill the Dissolution, had scarce a continuing Infeodation into lay hands (of which see the XIII. Chapter) nor could a lay man by the common Law before the Dissolution, make any title to Tithes as to lay inheritances; in other Nations Tithes infeodated haue been from aboue D. almost DC. yeers frequent in vse, and still continue legally in lay hands, and are subiect wholly to Secular Iurisdiction, as also other Tithes paid to the Church are, whersoeuer any such suite is commenced for them in their Spirituall Courts, as stand not with their libertie challenged from their Secular or Common Law. For eue∣rie Christian State hath its owne Common Laws, as this Kingdome hath. And the Canon Law euerie where, in such things as are not meerly spirituall, is alwaies gouerned and limited (as with vs) by those Common Laws. For by that name are they to be calld as they are distinguisht from the Canon Law, which hath properly Persons and Things sacred only and spirituall for its obiect in practice, as the Ca∣non Laws deale with Things and Persons, as they haue reference to a Common, not Sacred, vse or societie established in a Common wealth. Who knowes any thing in Holy-Writ knowes the vse of the word Cō∣mon to be so distinguisht from Sacred. Indeed it hath other notions there also, and it is otherwise vnderstood in ius commune, frequently among Canonists and Ciuilians. But these nothing at all hurt the conuenience of this denomination. For by them, Ius commune is v∣sed as it is opposd to Municipale or Consuetudinarium. But here, and in the nomination of the English Laws, as it is distin∣guisht from Sacred or Spirituall. and so in this sense the allowance of Customes, and Parlamentarie Statutes (as they ought) fall vnder the name of Common Law with vs. Here I doubt not but it will be an obuious obiection, that I should rather call the su∣preme and gouerning Law of euerie other Christian State (sauing England and Ireland) the Ciuill Law; that is the old Roman Imperiall Law of Iustinian. For such a raigning, but most grosse Ignorance,
is euery where almost to be met withal in England, that you shal haue it affirmd for cleer that al other States are gouernd only by the Ciuil Law. Indeed, if they which say so, vnderstood Ciuill for that which is the Ius Ciuile of euery singular State, it were but the same to talk of Ciuill and Common Law. For the Common Law of England also is the Ius Ciuile Anglorum. But it is euen with one mouth pretended vsually, that the Body of the Imperialls, read and profest in the Vniuersities, is the Ci∣uill Law, that gouernes (as they say) all other States. But this, how∣soeuer receiued through lazie Ignorance, is so farre from Truth, that indeed no Nation in the world is gouerned by them. For whersoeuer they are supposed to gouerne (let the briefe cleering of so common an error, get pardon for the digression) it must be taken, that they ei∣ther gourne by their owne originall autoritie, as they are Imperialls, or from their being receiued for Laws into other States, which are not in that first way subiect to them. According to that first way; only the Empire and perhaps a good part of Italie, should be ruled by them. But it is plaine, that for the most part, the disposition of Inheritances, punishing of Crimes, course of Proceedings, Dowers, Testaments, and such other, which are of greatest moment vnder the Legall rule, are euen in those States, where, by reason of their first Institution, they retaine a kind of autoritie, ordered by most various Customes and new Statutes of seuerall Prouinces and Cities, so differing from those old Imperialls; that the whole face and course of them is ex∣ceedingly changed in practice. This is plaine to euery one, that ob∣serues but the diuers Customes and Ordinances of the States subiect to the Empire; the Ius Camerale collected by Petrus Denaisius; the Nemesis Karulina, as it is set forth by Georgius Romus; and the many published Decisions or Reports both of the Imperiall Cham∣ber, and the Rota's of Rome, Naples, Piemont, Mantua, Genoa, Bo∣logna, and other parts of the Territorie of Italie. You shall find those Decisions, in matters of greatest moment, most commonly grounded on Customarie Law, or later Constitutions. So, that to affirme, that in these places the old Imperialls, or that Ciuill Law (as they call it) gouernes, is as if (for example) an equall ig∣norance shuld tel vs, that Spain were gouerned only by Alfonso's Par∣fidas, and Scotland only by Malcolms Laws or the Quoniam Attachia∣menta; or that in the time of the old Emperors the Roman State had been alwaies gouerned only by the XII. Tables, or that England were legally ruled only by the Grand Charter, or by the two volumes of old Statutes. Like accession and alteration as any of these haue had, is found in the Empire and in Italie, where the Imperialls haue, through the power of the Emperors and y Popes, any now continuing auto∣ritie. Now, for other Christian States, which acknowledge no superi∣or, or any subiection to the Empire (except Portugall, where the Ro∣man Ciuill Law is autorized, by an z Ordinance of State, in cases
which are not literally comprehended in the Customes or Constitu∣tions of the Kingdome) as France, Spaine, Scotland, Denmarke, Poland, the Citie of Venice, and what also in Germanie hath made it selfe fro•• from the Empire; what colour is there, that the Imperiall Ciuill Law should gouerne in them. Indeed in all of them, I thinke, the reason of it brought into method, is vsed and applied commonly to ar••••∣ment, when any of their Customes or Statutes (which are especially in France and Spaine very voluminous) come in question, because the Practicers studied it in the Vniuersities, & had thence their Degrees giuen them; which yet they had not, till about some CCCC. yeers since, neither before about that time was a Doctor or Professor of them known on this side the Alpe••. But as it is Law, it neither binds nor rules with them, no more then the old stories of Heredotus, Thu∣cydides, Diodore, Polybius, Iosephus, Liute, Tacitus, and the like, or Cicero and Demosthenes, or Plato's Lawes, and other of that kind; which are equally somtimes vsed for reason or example, specially by the Practi∣cers of France. And so the old Imperiall Ciuill Law valet pro ratione (as Bertrand d' Argentre, President of the Parlament of Rennes a sayes) non pro inducto iure; & pro ratione only quantum Reges, Dynastae, & Res∣publicae intra potestatis suae fines valere patiuntur And in France and Spain, Laws b were some CCC. yeers since expressely made, that the Im∣perials should haue no force in thē. And in Scotland it is ordaind, that no Laws haue force there, but the Kings Laws c and Statutes of the Realme, and that it should be gouerned by the common d Lawes of the Realme, and by none other Lawes. Doubtlesse, Custome hath made some parts of the Imperialls to be receiued for Law in all places where they haue been studied; as euen in England also, in Marine causes, and matter of personall Legacies. But is England therefore gouerned by them? It were as good a consequent to conclude so, as to affirme, that any of the other States were, because som petie things are orde∣red according to some Imperiall Text receiued and establisht by Cu∣stome. But this may seeme no fit place to speak more (perhaps not so much) to cleere this grosse error of such as yet pretend to know more then vulgarly, but can make no difference twixt the vse of Laws in studie or argument (which might equally happen to the Laws of Vto∣pia) and the gouerning autoritie of them. If any desire to search fur∣ther here, beside the Autorities cited in the e Margine, let him espe∣cially see I. Baptista à Villalubos 〈◊〉〈◊〉 Antinomia Iuris regni Hispaniarum ac Ciuilis, & note especially la Conference du droit Francois auec le droict Ro∣maine, composed by Bernard Automne, and obserue both the Volumes of Statutes and Ordinances of Spaine, France, Scotland, Poland, and of other Countries, together with the various Prouincial Customes, es∣pecially in France, with the Arrests, Decisions and Playd••••es of that Kingdome, and he shall soon be confirmed in that which a great Ci∣uilian of Italie is ingenuous enough to tell vs; Hispania, Anglia, Sco∣tia,
Balia, Hibernia, Alemania, Datia, Suetia, Vngaria, Boemia, Polonia, Bulgaria f non vtuntur legibus seu iure ciuili, sed specialibus consuetudinibus 〈◊〉〈◊〉 statutis, that is, they are all gouerned by their owne common Laws. 〈◊〉〈◊〉 that most learned Frier g Bacon, of his time; Omne regnum habes sua 〈◊〉〈◊〉 aquibus laici reguntur vt iura Angliae & Franciae, & ita fit Iustitia in 〈◊〉〈◊〉 per Constitutiones quas habent sicut in Italia per suas. This was then, and is now true. And the Interpretation of those common Laws in most places, saue England and Ireland, hath of late time been much directed by the reason of the Imperialls, and only by the reason of them (not by their autoritie) and that also in case when they are not opposite at all to the common Laws, but seeme to agree with the Law of Nations or common reason. And this vse of them, at the furthest, be∣gan in its yongest infancie, not C.D.LX. yeeres since. For before that, euen from Iustinians time, they lay wholly out of vse: sauing on∣ly, that some pieces of them, with the Interpolations of Alaricus and his Chancelor Anian, together with Lumbardine Additions and Inter∣pretations, had their power in some parts of Italie and the Empire. But for about D.C. yeeres together, that is, from Iustinian till Frede∣rique Barbarossa, no Profession was of them in any Vniuersitie, no Do∣ctorship, no other Degree taken in them. But after that time, they grew into a common Profession in this Western world (although by their own autoritie they are confined to Rome, Constantinople, and Bery∣tus) and euen here in England were, about Henry the thirds time, often applied to the common Law in discourse and argument, as you may see in Bract••n his frequent quotations of them. And heretofore some texts of them haue been in our Courts cited; not only as at this day some∣times is done (when the words only of some of the regulae iuris is brought into an argument) but the Title and Law, after the Ciuilians fashion, hath been rememberd at the Barre, and so afterward exprest in the Report, as I haue seen in an example or two in the Mss. yeers of Edward the h second. Yet, notwithstanding that, it is cleere, that England was neuer gouerned ••y the Ciuill (or Imperiall) Law, as it was also affirmd by the vpper House of Parlament in 11 Rich. 2. where the King and Lords protested also, that their meaning was, it neuer should be gouerned by it.
Ordonances de France liu 2. tom. 2. de Mines & Mineries.
Videsis dist. 10. c. 22. & 13. & extr de noui ops. is nuntiatione c. 1.
Videsis Suarez. de legibus lib. 3. cap. 8. §. 3.
Ad Consuet. Brit. tit. 22. de Succestionibus, ad rubricam.
Vide Chappin. du Domain•• &c. liu. 2. tit. 15. §. 5. Bodin de Repub. lib 1. cap 8. Suarez vbi supra &c. Philip. 2. in prag∣matica ante collect. L••gum Ro••ni.
Parl. 3. Iacobi 1. cap. 48.
Parl. 6. Iacob. 4. cap. 79.
Vide extr. tit. de Priuileg. c. 28. super specula, & ibid. Hostiens. l. Andr. Anton. de Butrio. item Choppin. du Do¦maine, liu. 2. tit. 35. §. 5. Bodin de Repub. lib. 1. cap. 8. & ante alios Sua∣rez de Legibus, lib. 3. cap. 8. v••de etiam pr••sat. ad Statut. Polonia, Prilusij.
Hieronym. ••igas tract. de Crin. lasa Maiest. lib. 3. quast. ••3. §. 18. & 19.
In Compond. Theolog. citatur in Notis, ad Furtisc. pag. 43.
In Biblioth. Int. Templi.