The pandectes of the law of nations contayning seuerall discourses of the questions, points, and matters of law, wherein the nations of the world doe consent and accord. Giuing great light to the vnderstanding and opening of the principall obiects, questions, rules, and cases of the ciuill law, and common lawe of this realme of England. Compiled by William Fulbecke.

The first Dialogue of the second part of the Paral∣lele, or conference of the Ci∣uill Law, the Canon Law, and the Common Law of this Realme of England. Of Prohibitions and Consultations. (Book 1)

[Diuision. 1] NOmomathes.

I am verie desirous Canonologus, to know the first and pri∣migeniall existence of Ty∣thes:* 1.1 that their originall being knowne, their law∣fulnes, and necessarie vse may appeare, which hath not seldome by di∣uers obiections and quarrellous surmises been shaken, and some haue engaged themselues so deepelie into this controuersie, that they haue suffered great affliction therefore, if not losse of life.

Canonologus.

* 1.2It is true: And amongest the 189. Articles of Wiclif, condemned by the Councell of Constance, that was noted especi∣allie to be erronious, that he held Tythes to be

nothing else, but pure, and frank almes: and that the Parishioners might withhold them from their Pastors, if they were wicked men: And for that especiallie he is said to haue been burntaa) 1.3: for that which belongeth to God may not at mans pleasure be derogated, de∣tracted, or diminished.

Nomoma.

Yea, but how doe you proue [Diuision. 2] that they belong to God?

Canonol.

I can easilie prooue that by their originall and lawfull institution of them,* 1.4 which was thus: God hath set downe this rule in Exodus: Decimas & primitias tuas non tardabis offerrea) 1.5. And in Leuiticus more parti∣cularlie he hath appointed the payment of Tythe: Omnes decimae terrae, siue de pomis ar∣borum, siue de frugibus, domini sunt, & illi sanc∣tificanturb) 1.6. Neither is that dissonant which is written in the Prouerbes of Salomon: Ho∣nora dominum de tua substantia, et de primi∣tijs frugum tuarum da pauperibusc) 1.7. Tythes cer∣tainlie are God his tributes;* 1.8 and as the Ca∣non saith, are giuen him in signum specialis do∣minijd) 1.9. And it is likewise set down, who should be God his deputies for the receit of such Tythes: Filijs Leui dedi omnes decimas pro ministerio quo seruiunt mihi in tabernaculo foe∣derise) 1.10. The reason is set downe by Ezechias: Vt possent vacare legi Deif) 1.11. And by the apo∣stle Paul: Qui altari seruit, de altari viuere debetg) 1.12.

And of paying Tythes,* 1.13 the verie Heathen which knew not God had great regarde, as may appeare by Plinies report, where he saith, That Frankensence being gathered, was conueyed on Camels backes to Sabola, there being but one way to carie it, and to go out of that waie was capi∣tall, and at the gate which was at the end of the way, the Priestes did receyue Tythes of the things that were caried for their God called Sabis: which Tythe or Tenth part they tooke by measure, not by weight: And before such payment of Tythe, there was not permitted any merchandize of themh) 1.14. And the Romanes did paie such a Tithe vnto Hercules.* 1.15 And they accompted Lucullus, who was verie skilfull of their Lawes and cu∣stomes to haue been greatlie increased in his wealth and stocke, especiallie for this, because in the due performance of his Tithe, he was alwaies diligent and exquisitei) 1.16. And when Veios being taken, gold should haue been sent to Apollo of Delphos, in the name of the Tenth of the pray which Camillus had vowed vnto him,* 1.17 and in the treasurie there was no great store of gold for that defrayment, the Romane nations brought into the treasurie as much golde of their iewels and ornaments, as did serue for that purpose: rather hauing regarde of publike duetie, then priuate profitek) 1.18. And Plinie likewise testifieth,* 1.19 that the Ro∣manes did not taste, nor make anie vse of their

new corne or wine, vntill they had giuen their first fruits vnto the Priestesl) 1.20. And Pharao in the time of the great famine of Aegypt did al∣low to the Priestes a certaine liuelode of corne out of the barnesm) 1.21, which is not discrepant from the ordinance of God, as it is set downe in the prophecie of Malachie: Inferte omnem decimam in horreum meum, vt sit cibus in domo mea, & probate me super hocn) 1.22. Certaine it is that they which dutifully and plentifully pay their Tythes without fraude and miserable pinching, or malicious quarrelling with their Pastor, or Curate, do more florish and prosper in their wealth, substance, and their profits of the earth, then such as prophanely and iniuri∣ously deteine them:

Cura dijs dij sunt, et qui coluere colentur.o) 1.23

And there is a good similitude or obseruation collected by Rebuffe vpon the affliction of the Philistines, that whilest the Philistines with∣held the Arke of God, they were punished with manie scourges, penalties, and correcti∣ons: For the fruites of their fieldes was deuou∣red of the Mise, and Locustes: and so he saith, that the lay people as long as they with hold the lawfull Tythes from their Ministers, shall be with diuerse losses and crosses afflictedp) 1.24.

Nomomath.

If Parsons ought to haue tithes as you haue plainely proued, then they ought to be contented therewith and not to haue any

[Diuision. 3] lands or tenements, which now they haue: for as there is an affirmatiue precept in the law of paying tithes:* 1.25 so there is another negatiue or∣dinance that the Leuites should possesse no∣thing els.

Canonol.

But that negatiue law was not made to be perpetuall, as may appeare by the last Chapter of Leuiticus & by the 27. and like∣wise by the 25. Chapter, where it is expresse∣ly said. Domus vrbium Leuiticorum pro possessi∣onibus sunt inter filios Israel, suburbana autem eorum non veneant, quia possessio sempiterna est.

Nomomath.

Whether by your law may a man prescribe in not paying tithes.

[Diuision. 4] Canonol.

No man by our law may prescribe in not paying tythe:q) 1.26 and a man is bound to pay tythe though by an hundred yeeres hee haue not payed, because if it be an offence to pay slowlie, it is a greater offence not to pay at all:r) 1.27 and the longer the tythes are with-held, the offence is so much greater, because as the reason of our law is: diutius detinent infaelicem animam alligatam:s) 1.28 but a Layman may pre∣scribe in paying a speciall portion in lieu of the whole tythe as to pay the twelfth part, or the twentieth part.t) 1.29 Yet if the Minister or Curate may not be maintained by the residue of the Tythes, he may sue for the whole Tytheu) 1.30. And if there be a composition betwixt the Cu∣rate, and his Parishioner, that hee shall pay no

tithe this compositiō is meerly void: otherwise it shold be if the composition had bene that he should pay a certaine portion of tythe, as the sixtenth or twentith part, or that he should pay no tythe for certain things: for though the cō∣position were before the Bishop, yet it could be no otherwise:a) 1.31 yet according to our law the Bishop may by way of composition alter the place or time of paying tythes.

Codicgn.

To this which you haue said our law agreeth, & we haue an expresse rule:* 1.32 sacer∣doti petenti decimas non potest obijci compensatio.b) 1.33. and the reason is because fisco petenti tributa non potest obijci compensatioc) 1.34. Therefore much∣lesse may compensation be obiected in tythes, quae deo debentur.d) 1.35

Anglonomop.

But by our law if a man graunt parcell of his mannor to a parson in fee to be discharged of tithes,* 1.36 & he maketh an indenture therof, & the parson by assent of the ordinarie graunteth to him that hee shall be quit of the tythes of his mannor for this parcell of lande, now if he be impleaded for the tithes therof he may haue a prohibition, and if this deed haue bin made from time out of minde, and he hath bin continually quit of the tythes of that man∣nor he may haue a prohibition in such case, if he be impleaded: and so likewise it is if such discharge grow by reason of a composition.e) 1.37

Nomomath.

I pray you let me know in what [Diuision. 5] cases tithes are recouerable at the spirituall law,

and whē at the commō, that so I may perceiue the diuersitie of the iurisdictiō of these Courts, which in it self seemeth to me to be somewhat perplexed & difficult, vnles it be opened & ex∣planed by cases accommodate to the purpose.

Canonol.

There be two sorts of tithes, being parcel of the inheritances & possessions of laye mē of the first by your fauor I will speak first,* 1.38 & then discend to the other: when the right of tithes is in question, because that is a meere ec∣clesiasticall subiect, the church hldeth conu∣sance,f) 1.39 & there is an edict made by Phil. the 4. K. of France touching tithes in this manner. De cognitione decimarū non feudalium in petitorio vel postestorio, praesertim inter ecclesiasticas partes, gē∣tes nostrae se nullatenus intromittant.g) 1.40 And this is according to the rule of our law de causa spi∣rituali solus ecclesiasticus cognoscit vbi quaestio fit iuris.h) 1.41 but where the questiō is facti, & not iuris the examination of the cause may belong to a laye iudge.i) 1.42 but if the controuersie be mixt, and the propertie is as wel to be decided as the pos∣session, the matter is to bee discussed before an ecclesiastical iudge,k) 1.43 & whē tithes are leased or dimised vnto a man, he may demand the tithes before a lay iudge, vnles there be contraria fori praescriptio, as there is in the citie and diocesse of Millaine:l) 1.44 yet where the cōtrouersie is betwixt these that be meere clergy men, though it be a possessory suyte, yet it is to bee decided by an

Ecclesiasticall iudgem) 1.45. Neyther may lay men be compromittes of a decimall cause if the right come in question:n) 1.46 but such tythes as be not spiritual,* 1.47 but as I haue termed them before feudall, may be ordered and disposed by lay compromittees.

Nomomath.

You haue satisfied me Canono∣logus touching the point of Ecclesiastical iuris∣diction where spirituall tythes are to be de∣maunded: Now I pray you shew me the na∣ture and original of these feudall tythes, which [Diuision. 6] as yet are more obscure.

Canonol.

Their nature shall appeare by their originall which was thus.* 1.48 Charles Martell after that he had obtained an happy victorie a∣gainst the Saracens, who marching from Spaine did spoile and waste the lands, goods, and tem∣ples of the French, did meane to recompence his nobles & peeres of his realme with some great reward, and that hee might testifie his li∣beralitie towards his said nobles, by the con∣sent of the Bishops of his kingdome, he did giue vnto them the tythes of manie goodlie Churches, taking a solemne oath that if he li∣ued any while, he would make the Church a large amends for this matter, which notwith∣standing hee did not: but not long after, as (Guagni reporteth) for that sacriledge he died, and was carried to hell, and his bodie being in∣tombed in the temple of Saint Dennis, within

a few yeeres after there was seene vpon his graue a great serpent,* 1.49 it might be it was the di∣uell in the likenes of a Serpent: but shortlie after there was neither bodie nor bones of Charles found in that place, and therefore some thought that hee was carried bodie and soule to the diuell:* 1.50 for that cause the wiseman hath said, it is a destruction for a mā to deuoure that which was sanctified, &c.nn) 1.51

Nomomath.

It is not good to enter into the counsailes of the Almightie. The Bethshamites were not vnpunished for their prying into the Arke. And the prouerbs of the heathens doe admonish vs not to bite the dead, nor to wrestle with spirits. It is not good to charge the dead with any other thing thē that which happened in their life: for whosoeuer are de∣parted this life stand or fall to their Lord, who is the iudge of the quicke and dead,* 1.52 and I think the report of the serpent to be but a meere fa∣ble discrediting the author, and dishonoring that worthie protector of the Christians: but what say you Codicgnostes of these matters.

Codicgnostes.

I doe not remember any thing in our lawe repugnant to that which Canonolo∣gus hath aboue deliuered.

Nomomath.

What say you Anglonomophilax.

Anglonomoph.

Our law doth neyther fullie agree with that which Canonologus hath vtte∣red, neither in verie many things disagree from

it, as by your patience I shall at large demon∣strate. Wee haue a rule in our statute-law not much differing from the edict of the King of Fraunce aboue recited by Canonolog.* 1.53 In decimis & mortuarijs quando sub istis nominibus propo∣nuntur, prohibitioni nostrae non est locus, dummo∣do decimarum illarum quantitas non ascendat ad quartam partem bonorum ecclesiaeo) 1.54: And as to the diuersitie vsed in the Canon law where the question is facti and not iuris, and where it is de petitorio and not de possessorio,* 1.55 M. Fitzherbert hath this assertion: that if any parishioner doe disturbe or hinder a Parson or Vicar in the ca∣rying away of his tithes, which is an iniurie in the fact, whereas the carriage is through the waies and passages vsed and accustomed, the Parson or Vicar may sue in the spirituall court for this disturbancep) 1.56: for in this case the spiri∣tuall Court proceedeth vnto excommunicati∣onq) 1.57: One Parson may sue a spoliation against an other in the spirituall Court,* 1.58 for the taking of tithes which belongeth to his Church though they claime by seuerall patrons, and by seuerall presentments, but this is to bee vn∣derstoode where the said tenth doeth not a∣mount to the value of the fourth parte of the Church, for otherwise the partie greeued may haue an Indicauit because the title of the patro∣nage

may come in debate: But if they claime by the presentment of one patron thē a spolia∣tion may be sued although the profits or tithes doe amount to the fourth part, or third part, or the moitie of the benefice: because in such case the title of the patronage shall not come in debate. And if a prohibition be sued here∣upon, the partie may haue a consultationr) 1.59: and if a man haue certaine sheepe depasturing, and lying within the precinctes of the parish of N. within a yeare, the parson of that pa∣rish may sue in the spirituall court for the tithe wooll of these sheepe: and if the partie sue a prohibition hee may haue a consultati∣ons) 1.60: for the suite for tithe doth properly ap∣pertaine to the spirituall Courte,* 1.61 as by sta∣tute it is ordeynedt) 1.62: and it appeareth by the Register of writtes, that if the pattie which withholdeth tithe make his executors and die, the executors may bee suedu) 1.63. And if a man detaine tithes for his sheep which went in the parish of N. and were depasturing and cou∣ching there so long time, if the partie die, the parson may sue his executors for these tithes in the spirituall Court. And so the Parson may sue the executors for the arrerages of tithes due by reason of certaine milnes of the testator in the life of the testatora) 1.64: And the

parson by prescription may in the spirituall Court claime tythes virularum & lacticinia∣rum of the beasts pasturing in his parish, as namelie milke, butter and cheefeb) 1.65, and the tythes of wooll, and the tythes of honie and waxe,c) 1.66 and for these hee may sue in the spi∣rituall Court, and by manie authorities in our law, the right of tythes is tryable in the spiri∣tual Court.d) 1.67 But where a mā is sued for tythes of great trees aboue the age of twentie yeeres, a prohibition will lye by the statute of 45.* 1.68 E. 3. but of horne beames, salowes, and the like, of what age soeuer they be, being not apt for timber, tythes ought to be payed.e) 1.69 And the branches of trees which be priuiled∣ged from tythes shall be also priuiledged: and the suit for the tyth branches of trees which are not priuiledged, shall be in the spirituall Court as well as the suit for the tythe of the trees themselues: for as Bracton saith, non pertinet ad iudicem secularem cognoscere de ijs quae sunt spiri∣tualibus annexa.f) 1.70 And thus it may appeare, that as soone as the right of tythes commeth in debate, the lay Court ought to cease, and shall be out of iurisdiction: and if it may appeare that the right of aduowson com∣meth in debate the spirituall Court shall be out of iurisdiction: But if the parson of N. doe lease for yeares a certaine portion of his tythes rendering a rent, hee shall haue

an action of Dette for the rent if it be behind at the common Law,* 1.71 and not in the spirituall Court, because the money is a lay chattellg) 1.72. And if the Parson take Oates, or other graine, as his Tythe: and an other taketh them awaie from him, the nature is altered, and now they are become a lay chattell, and the Parson shall haue an action of Trespas at the common Lawh) 1.73: Yea by the booke of 2. Ed. 4. if they be seuered from the ix. part, and not yet in the actuall possession of the Parson: Yet if a stran∣ger carie them awaie, he may haue an action of Trespasi) 1.74: But he may not in any case dis∣treine for Tythe: for there is not any land in demesne vpon which the distresse may bee madek) 1.75. But if in such case debate happen be∣twixt Parson and Vicar, so that the right of Tythes is to be tried, the suit is to be maintei∣ned in the spirituall Courtl) 1.76.

Nomomath.

But what if Tythes be not duelie paied, what punishments are there to be inflicted by your Lawes.

Canonol.

In the demaunding Tythes, if [Diuision. 7] iudgement be giuen for the demaundant, there must a precept issue with a monition vnder paine of excommunication,* 1.77 if he doe not within a certaine number of dayes pay or sa∣tisfie the demaundant so much Tythe. And the Law is that against such as be stubborne, Brachium seculare inuocari potestm) 1.78.

Codicgn.

We haue nothing in our Law con∣trarie to this.

Nomomath.

I pray you shew me Canonol. the qualitie and force of Excommunication, that I may be better satisfied.

Canonol.

The Canon Law doth obserue eight [Diuision. 8] degrees in proceeding to the correction or pu∣nishment of them of the Clergie,* 1.79 in punishing any offence whatsoeuer: The first is a moniti∣on, vt desistantn) 1.80: The second excōmunication, si non paeniteanto) 1.81: 3. A suspension of their bene∣fice, si differantp) 1.82: 4. The depriuatiō of their be∣nefice, si perseuerentq) 1.83: 5. A suspension of their orders, or degrees, si obstinatè contēdantr) 1.84: 6. A thrusting or intruding of thē into a Monastery, or Religious house, si indurati existant: 7. Per∣petuall imprisonment, si incorrigibiles existants) 1.85: 8. A solemne degradation in the presēce of tē∣poral officerst) 1.86. And this order of punishment is alwaies obserued, vnlesse the crime be so great, heynous, and scandalous, that this solemnitie is omitted, and then there is a summarie, and im∣mediate proceeding to degradation, and to the deliuering of the party vp to the secular power.

But there be two sorts of Excommunication, the lesser is not penall, but medicinall,* 1.87 & is pro∣porcionable to that lesser thunderbolt, which the Poet describeth: Est aliud leuius fumen cui dextra Cyclopum, Saeuitiae flammae{que} minus, minus addidit iraett) 1.88. It doth rather in some small pro∣portion terrifie, then in any great measure hurt.

Yet here a distinction is to be vsed: for either the sentence of the lesser excommunication is pronounced ab homine, and then it is medicina∣ble: or els it is pronounced a Canone; as when a man is ipso facto excommunicate, for then it is penallu) 1.89. But the sentence of the great excom∣munication doth anathematize, and is alwaies penalla) 1.90. All these things may be thus resolued, either an ecclesiastical person doth cōmit some small offence, and then he is deposed, & not de∣priued, but for a time suspendedb) 1.91: But if he cō∣mit grieuous offēces, then he may be deposedc) 1.92. But if he commit faults most grieuous, such as by the Ciuill law he shall suffer death for, then he may be condemned ad perpetuā carcerem, to haue imprisonment during his lifed) 1.93. Excom∣munication is tearmed in our Law mucro Epis∣copi: and therfore it is said in the Canon law foe∣lici mucrone Episcopi sacerdotum piacula resecen∣ture) 1.94. But the vtmost punishmēt of a lay man for not paying of Tithes, or other misdemeanour punishable by the Canon Law is excommuni∣cation onely: after which issueth a writ of Ex∣communicato capiendo at the Common Law.

Anglo.

* 1.95It is true, but we haue compulsarie Sta∣tutes made for the paimēt of Tithes: As name∣ly the Statute of 27. H. 8. ca. 20. which is, That if the Ordinary of the diocese &c. do for any contēpt, contumacy, disobedience &c. of the party not pay∣ing his lawfull Tythe, make information or request

to any of the Kinges most honorable Counsell, or to the Iustices of the peace of the shire &c. to order or reforme any such person &c. that then he, or the Kinges said honorable Counsell, or such two Iustices of peace, whereof one to be of the Quo∣rum, to vvhom such information or request shall be made, shall haue full power and authoritie to at∣tache the said person &c. and to commit him to¦vvarde, there to remaine vvithout baile or main∣prise, till he haue found sufficient suertie &c. to giue due obedience to the proceedings, decrees, and sentences of the ecclesiasticall Court &c. And the like Statute was made 32. H. 8. cap. 7. And by the Statute of 2. Ed. 6. cap. 13. it is prouided, That if any person carie avvay his Corne or Hay, or his other prediall Tythes, before the Tythe thereof be set forth: Or vvillingly vvithdraw his Tythes of the same &c. that then vpon due proofe thereof made before the spirituall Iudge &c. the partie so carying away, vvithdrawing &c. shall pay the dou∣ble value of the Tythe so taken, lost, vvithdrawen &c. beside the costes and charges of the suit &c. And as to these Tythes which Canonol. hath aboue called feudall which wee call impropri∣ate, it is ordeined by the Statute of 32. H. 8.* 1.96 c. 7. that they may bee demaunded by a Praecipe quod reddat.

Codign.

Our lawe in all the matters aboue∣said consenteth with the Canon-lawe.

Nomomath.

But what if a man will not pay his

Tythes in the time of vacation of a bene∣fice.

[Diuision. 9] Anglonomoph.

Then the Ordinarie ex officio may cite him to paie themf) 1.97.

Canonol.

* 1.98That seemeth not to be repug∣nant to our Lawg) 1.99.

Codign.

Nor to ours.

Nomomath.

Now that you haue proceeded so farre in matters of iurisdiction, I pray you let me mooue you for other doubtes concer∣ning the same point. Whether is the crime of Heresie subiect to the censure of the Canon Law onelie, or to the iurisdiction of all your [Diuision. 10] Lawes, I pray you shew me how, and how farre forth it is punishable.

Canonolog.

There be two thinges which make Heresie: First it must respect and con∣cerne the Articles of our Faith: Secondly there must be a stubborne, and pertinacious af∣firmation: for there must be error in ratione, and pertinacia in voluntateh) 1.100: for where there is error,* 1.101 but not obstinacie, there the partie can not be said to be formatus, but suspectus haere∣ticus, and then he holdeth the error inquisitiue, but not adhaesiue. But he that is formatus haere∣ticus is thus punished in our Law: he is excom∣municated, he is bereaued of all ecclesiasticall promotion, he is deliuered vp to the secular power, and all his goodes and landes be con∣fiscated, and taken away from himi) 1.102. But in two

cases their landes are reserued, and left to their children: First, if they reueale their fathers heresiek) 1.103, 2.* 1.104 If they haue been so long in pos∣session that they may prescribel) 1.105. But the dow∣rie of the wife of an Heretike is not forfei∣ted, vnlesse she do marie him knowing of the heresiem) 1.106.

Codicgn.

Our Law agreeth to that which you haue said: And further prescribeth an other punishment, which you haue not men∣cioned against such offendors: for it saith, that they shall be burnt aliuen) 1.107.

Nomomath.

Yet I haue read in a learned Ci∣uilian,* 1.108 that in the whole bodie of the ciuill Law it is not recorded, that Heretikes should be put to death by fire: and therefore he is somewhat bold with the Canonistes, and cal∣leth them igniuomos canonistaso) 1.109.

Codign.

Indeed our Law as to that point is wholie grounded vpon the Canonoo) 1.110.

Canonolog.

It is not grounded vpon the Canon, for we referre the matter wholie and finallie to the secular Magistrate: as your writ de Haeretico comburendo Anglonomoph. doth testifie.

Anglonomoph.

Indeed in our Realme in aun∣cient time, he that was to be burnt for Heresie,* 1.111 was first to be conuicted of the same before the Bishop of the diocese &c. and ought to abiure it: And if he did after relapse into it againe,

and were thereof condemned in the said Dio∣ces: then he should be sent to the secular power to doe with him whatsoeuer should please the kingooo) 1.112. But afterward by the Statute of 15. of king Henry the eightp) 1.113, it was ordeined, that he who had once abiured heresie,* 1.114 and was re∣lapsed, and was conuicted hereof before his Ordinarie, that notwithstanding the Ordinarie ought not to commit him to the laie power without the kinges writ first purchased here∣vpon to burne him.

Nomomath.

Then I perceiue the whole act both of adiudging to the fire, and of sending the partie to receiue that punishment, depen∣deth now wholie vpon the Canon Law, and the sentence of the Bishop framing the style of his iudgement according to the Canon Law.

Canonol.

The secular power putteth him to death: but we are discharged of it.

Nomom.

Nay verily, no more then Nabuchad∣nezer can be acquited of exposing the life of Daniell to hazard: for he might as well haue ex∣cused himselfe and said, that he did not meane to kill him, but did onelie commit him to the curtesie of the lyons: And as he did not perso∣nally put him into the caue, & within the grate: so neither do ye personally thrust these which you tearme Heretikes into the fire, nor bind thē vnto the stake. Nabuchadnezers punishment

I haue reade of, which was grieuous and horri∣ble: But I doe not reade of the admittance of such excuse. And when the Iudge of Iudges shall examine such firie proceedings, it will be in vaine to excuse themselues by the fire, and the chaine, and the stake: or by the Shirife and the Bailifes, if the Iudgement haue been wrongfull and vniust. It will be like the excuse that Phillip king of Macedonia made, when he was charged with the expugnation and ouer∣throw of the Citie of Chius: Nequè ego Chium expugnaui, sed Prusiam socium & amicum expug∣nantem adiuuiq) 1.115: for so Prusias might haue said, that he did it not, but onelie encouraged his men to do it. So Brutus and Cassius might be excused from killing themselues, because they did non inflict the wound, but did will and commaunde others to doe itr) 1.116. After as bad a sort Dido cleareth her selfe of her death, though not any waie to be cleared:

Praebuit Aeneas et causam mortis et ensem: Ipsa sua Dido concidit vsa manurr) 1.117.

But I will insist no more of this matter. Now [Diuision. 11] resolue me, whether any Church-land be de∣maundable at the Spirituall Law.

Codicgn.

Religious houses and landes be∣longing vnto them deputed to holie vse are comprehended in our Law vnder the name of Church-land or lyuing:* 1.118 And all landes which belong to Oratories or priuate Chap∣pels,

annexed to the particular houses of laie men, by the authority of the Diocesan, and the landes belonging to them are compri∣sed vnder the name Church-land or Church liuings) 1.119: Likewise that plott or parcell of ground in which a dead man is buried, or wherein his head or any part of him is buried becommeth consecrate, and religious, and therefore cannot be morgaged nor pledgedt) 1.120: and of such landes our lawe taketh notice and holdeth full iurisdiction.

Canonol.

But in strict reason such things do belong to the iurisdiction of the spirituall courtu) 1.121.

Anglonomoph.

These matters are diuersly taken in our law: for in action of trespasse con∣ceiued by the Vicar against the Parson for the breaking of his close, and for his lambes taken away, whereas the close supposed was the Churchyard parcell of the vicarage of the plaintife,* 1.122 it was held by the better opinion that in this case wherein the close supposed in the writte is admitted by both parties to bee a churcyard, the spirituall Court onely should hold iurisdictiona) 1.123. And an assise likewise was brought of a house against a Parson, who plea∣ded in bar, that he was Parson of P. and that the house demanded was parcel of his said church, from time out of mind, and that there was se∣pulture

of deade persons there: wherefore Perseis opinion was that the court temporall ought not to holde plea in this caseb) 1.124: but if the Parson of A. and the Parson of B. do con∣tend in suite for a parcell of lande,* 1.125 the one claiming it to bee his gleabe, the other his: it hath beene held in this case, that the spirituall court shall not hold iurisdictionc) 1.126. And Brac∣ton likewise affirmeth, that a thing giuen in frankalmoigne remaineth laye feed) 1.127: and by our lawe a prohibition lyeth for chaunteries,* 1.128 chappels, prebendes, and vicaragese) 1.129: and if a man deuise lands or tenements deuisable, the partie to whome the deuise is made shall not sue in court spirituall, and if he doe the other shall haue a prohibition: and therefore as Bra∣cton saith, the deuisee may enter without the licence of the executorf) 1.130: but if a deuise bee made of goods, and chattels reall,* 1.131 as of a lease for tearme of yeares, or of a warde, there the suite must be in the spirituall courtg) 1.132: and if a termor of certaine land doe deuise his croppe and dye, the spirituall court shall hold plea for this croppeh) 1.133: and if a man deuise corne or o∣ther goods to a man, and a straunger will not suffer the executor to performe the testament in this point, they may sue the stranger here∣upon in the spirituall court: but if a man take goods deuised out of the possession of the

executors, the law is otherwise, for then they shal haue an action of trespasse at the common lawei) 1.134: but if a man sue another in the spiri∣tuall court for a rent reserued vpon a lease of tithes or offerings, a prohibition wil lie in such case because it is a laye rentk) 1.135.

[Diuision. 12] Nomomath.

Let me now know Canonol. whē a man graunteth to one ius patronatus of the church of Dale, if this title bee controuersed in question, whether shall the ecclesiasticall court or temporall hold iurisdiction.

Canonolog.

* 1.136Surely I thinke it is determina∣ble in the ecclesiastical court, because the right of patronage may passe by the word ecclesia: as if a man said vnto me, dono tibi ecclesiam S. Petri in Dale, the aduowson of the church doeth passel) 1.137.

Anglonomop.

The word ecclesia is otherwise taken in our law, for it is most commonly vsed for a place wherein baptisme and the sepulture of mens bodies is celebratedm 1.138. And M. Fitz∣herbert saith, that by this word ecclesia is meant onely a parsonagen) 1.139: and therefore if a present∣ment be made to a chappell as to a church, by the name of this word ecclesia, this doth change and metamorphize the nature of it,* 1.140 and ma∣keth it presently a Churcho) 1.141: and because by this word (church) is meant a church parochi∣al, therfore if a man haue an oratory or chappel

within his mannor of Dale and he giueth part of the demesnes of the said mannor to a Chap∣leine for life to sing there, yet hee hath not by this made it a Church, but it remaineth still an oratorie, and his freehold: for here was no ef∣fectuall operation of lawe to force such a chaungep) 1.142. But if a writte bee brought of a Church in Dale, and in Dale there bee both a Church, and a Chappell, yet the writte shall stand good for the reason aboue shewedq) 1.143: and sometime it signifieth the Church which con∣sisteth of stones, walles, and roofer) 1.144: and some∣times the demesnes and profits of the benefices) 1.145: but verie seldome, if at anytime it is vsed for ius patronatus. But if as you say, the patro∣nage shold passe by these words dono ecclesiam: in all reasonable vnderstanding the patronage is to be distinguished frō the Church or bene∣fice. And therefore Pollard 12. H. 8.t) 1.146 doth well distinguish the interest of the parson,* 1.147 patron & ordinarie as in a seuerall thing: the parson (saith hee) hath a spirituall possession in the church: the ordinarie hath charge of the church to see the cure serued: the patron ius presentandi to the church; which being well weied doth clearely bewray the imbecilitie, & in consequence of your proposed argument Canonol. neither can you by any solide reason of law entitle the spirituall court to iurisdiction in this case, as I shall hereafter shewe.

Nomomath.

What say you of this matter Co∣dign.

Codign.

Wee rely wholy for these matters vpon the Canon law which in these pointes is verie pregnant and copious.

Canonolog.

It is so in deed: but by that lawe ius patronatus is meerely spirituall, and not tem∣porall, as Anglonomoph. would perswade: for it is wholly after a spirituall manner carried & ordered: for though the patronage do arise of three things the foundation,* 1.148 the edifying, and the endowmentu) 1.149 according to the ancient say∣ing patronum faciunt dos, aedificatio, fundus: yet it is no temporall thing, because though a man bee condemned, and his goods bee confisca∣ted, yet hee shall not lose his right of presen∣tingx) 1.150: neyther is this repugnant, that to a Church parochiall hee may present, to a Church collegiate the lawe is, that though his assent goe not to the election of the partie who is to be the gouernor: yet our law com∣mandeth that after the election it should bee registreda) 1.151. Yet it seemeth to be spirituall, be∣cause if a laye patron doe present one, and after will varie and present another: nowe it is left to the arbiterment of the Ordinarie, which of them hee will admitb) 1.152: and hee which is so refused by the Bishop, hath no remedie against the second presentee, but he

may haue remedie against the Bishop for his vniust refusall or wrongfull delay: and his re∣medie in this case is a duplex querela against an inferior Ordinarie: and this must be handled in the spirituall courtc) 1.153.

Anglonomoph.

Yea but the reason of that is giuen in our lawe, because the right of patro∣nage shall not come in debated) 1.154.

Canonol.

This is petere principium, but let me proceed. There is such a mutuall correspon∣dence betwixt the patron & the Church, that they may not bee seuered either in gouern∣ment, or in iurisdiction: for though the patron hath aliquid honoris, as we said, because he is to haue the first place in the processione) 1.155: yet hee hath also aliquid oneris, for he is bound by our lawe to defend the Church from all oppressi∣onsf) 1.156: and in that regard if he fall into pouer∣tie, he is to be mainteined de bonis ecclesiaeg) 1.157.

Anglonomoph.

These circumstances do not inferre the conclusion which you labour for. It shall appeare to you Canonologus, by our law and by verie strong reason, that the right of pa∣tronage or the aduowson of the Church,* 1.158 is one of the proper obiects of the common law. First it is a rule with vs, that if a man be sued in the spirituall court for a laye fee, a prohibition will lye, that is, for lands and tenementes as M. Fitzh. well expoundeth ith) 1.159. Now that an ad∣uowson

is a tenement,* 1.160 & lyeth in tenure, may by seuerall authorities be auouched: and ther∣fore a tenure ought as well to bee found by of∣fice of an aduowosn, as of a mannori) 1.161: and a lease for yeares may be made of an aduowson, and if the lessee alien in fee, this is a disseisin to the lessork) 1.162: and 15. H. 7. all the Iustices agree, that an aduowson lyeth in tenurel) 1.163. And for that cause, if one hold and aduowson of the king, and graunt it to another without licence, the grauntee shall pay a finem) 1.164. And generally vpon any surmise, that a man is sued in the spi∣rituall court for a temporall thing, a prohibiti∣on will lien) 1.165. Now the aduowson is temporall, though the admission & institutiō be spiritual.

[Diuision. 13] Nomomath.

Let me aske you further this que∣stion: if a man sweare to me that he will make me a feofement of certaine land before such a day, and he doth it not, whether may I sue him in the spirituall court pro laesione fidei.

Anglonomoph.

* 1.166No: for if you do, a prohibiti∣on will lie by our law, because the acte which is to be done is a temporal acte, & is to be tried by the commō lawo) 1.167: and if men be sworne to giue true euidence to a iurie, and they doe so, whereupon certain persons be endited of some misdemeanor, if they which be endited do sue them that gaue euidence against them in the spirituall Court for this diffamation doone with an oath, they may make a prohibitionp) 1.168:

but if any periurie be committed in a spirituall court,* 1.169 there the spirituall court shall haue iu∣risdictionq) 1.170: but the Ordinarie in temporall cases maye punishe the partie which hath committed periurie ex officio, though not at the suite of the partier) 1.171: and if a woman haue ti∣tle to sue a Cui in vita, and she maketh oath to the tenant of the land, that she will not sue a∣ny cui in vita against him, if after she sue a Cui in vita, and thereupon the tenant sueth her in the spirituall court pro laesione fidei, shee may haue a prohibition, because the oath toucheth a temporall thing, namely lands) 1.172. And if a man sweare to one that hee will pay to him twentie pound which he oweth him at a certaine day, and at the day hee fayleth of the paiment, hee may not now be sued in the spirituall court for the periurie, because an action of debt lyeth at the commō law for the principalt) 1.173. But 34. H. 6 it is saide, that if a man buy an horse for fiue pounde soluend. such a day, and sweareth to make paiment at the day, but when the day is come fayleth of payment, an action of debt lyeth at the common lawe, and an other at the spirituall lawe pro laesione fidei, and a writ of prohibition lyeth not because they be two distinct thingesu) 1.174: yet 2. H. 4. is that a prohibi∣tion lyeth in such casex) 1.175.

Canonolog.

But Lindwood sheweth that a

libell may be so framed, that no Prohibition will lie in your last recited case: as namelie, the li∣bell may be, (That the partie hath damnablie broken his oath, pretending that he was not bound by ita) 1.176.

Anglonomoph.

That is but a weake support of the spirituall iurisdiction:* 1.177 for it is one thing to be punished for periurie, an other for his irreligious pretence. And surelie I take it to be agreeable to all Lawes, that pretenses and in∣tents are not punishable, but onelie in crimine laesae Maiestatis. And a man may sue a Prohibi∣tion directed to the Shirife, that he shall not permit, nor suffer the Queenes lay subiectes to come to anie place at the Citation of Bishops, ad faciend'aliquas recognitiones, vel sacramenta praestanda, nisi solùm in causis matrimonialibus et testamentarijs.* 1.178 And M. Fitzherb. thinketh that these generall Citations, which Bishops make to cite men to appeare before them pro salute animae, without mentioning any speciall cause is against Lawb) 1.179.

Nomomath.

Why may they not vse such generall Citations,* 1.180 as well as a Iustice of peace by your Law may make a precept to bring one before him, to aunsweare to such things as shall be obiected against him without shewing any speciall causec) 1.181 And if by your Law they can receiue no oath but onelie in matters Matri∣moniall and Testamentarie, then it must needs

be intended, that though their processe be ge∣nerall ad sacramenta praestanda, yet it is specially meant of Matrimoniall or Testamentarie cau∣ses: For I remember a good rule in the Canon Law to this purpose: Quando constat de lege, sufficit generalis allegatiod) 1.182. But what saie you to this matter of oathes Codicgnostes.

Codicgn.

Our Law differeth little or nothing from the Canon law in the discourse of oathes.* 1.183 And as the Canonistes, wee make two sortes of Oathes, Conuentionale and Iudiciale: Conuen∣tionale, or Promissorium, is when we sweare de futuro that we will giue some thing, or do some thing &ce) 1.184. Iudiciale is when the Iudge for the triall of the truth of a controuersie, and the in∣fourming of his owne conscience vrgeth the partie to take an oathf) 1.185. Of both these riseth an action triable wel enough by the Canon Law: for in this matter the Canon is the sterne and motiue of our iudgements: and therefore we hold the rule of the Canon Law firmely: Prae∣stans et recipiens iuramentum, contra Canones pu∣niturg) 1.186.

Nomomath.

Well, I will trouble you no fur∣ther about questioning of things belonging to seuerall iurisdictions, but will now passe to in∣quire somewhat of such thinges whereof an Action of the case will lie.

Notes

• * 1.1

  1. The origi∣nall of Tythes is inquired of.
• * 1.2

  2. The coun∣cell of Con∣stance is said to haue con∣demned VVic∣lif, for holding Tythes to be pure almes.
• aa) 1.3

  Rebuff. in tractat. de Deci. 5. qu.
• * 1.4

  1. The origi∣nall of Tythes is demonstra∣ted to be by the Law of God.
• a) 1.5

  Exod. c. 22.
• b) 1.6

  Leuit. c. vlt.
• c) 1.7

  Prouerb. 3.
• * 1.8

  2. God his de∣puties for the receit of Ti∣thes are set downe.
• d) 1.9

  c. cum non fit eod.
• e) 1.10

  Numb. c. vlti.
• f) 1.11

  2. Paralipo. c. 13.
• g) 1.12

  1. Corinth. 9.
• * 1.13

  3. The Hea∣thens which knew not God, had great regarde of paying Ti∣thes.
• h) 1.14

  Plini. lib. 12. c. 14.
• * 1.15

  4. Lucullus is specially com∣mended for paying Tithe.
• i) 1.16

  Alex. lib. genia. 3. c. 22.
• * 1.17

  5. Camillus is likewise com∣mended for his diligēce in pro∣curing Tenth to be paid.
• k) 1.18

  Liui. lib. 5.
• * 1.19

  6. The Ro∣m••••e•• carefull in paying first fruites.
• l) 1.20

  Plini. lib. 18. c. 2.
• m) 1.21

  Genes. 47.
• n) 1.22

  Malach. 3.
• o) 1.23

  Ouid. in Metamorph.
• p) 1.24

  Rebuff. trac∣tat. de Deci. qu. 15.
• * 1.25

  1. Whether Parsons ought to haue no more liuing then tythe. 2. It is deny∣ed by Cano∣nologus that they ought to haue no more liuing.
• q) 1.26

  Dom. in c. 2. col. ill. de prae. in. 6.
• r) 1.27

  c. decim. in princip. 16. qu. 1.
• s) 1.28

  c. fin. de con∣suetu.
• t) 1.29

  Part. paris-consil. 25. vidi∣at. 3. nu. 21. vil. 4
• u) 1.30

  Angel. clauus in ver∣sic. 10.
• a) 1.31

  Text in c. venerab. de confir. vtil.
• * 1.32

  2 The ciuill Law agreeth thereunto.
• b) 1.33

  Ludouic. de Rom. in sin∣gular.
• c) 1.34

  l. 3. & 4. c. de com. pen. le. aufert. §. qui compensati. ff. de iu. fisc.
• d) 1.35

  Gazalup. in ver. Decim.
• * 1.36

  3 By the com∣mō law a man may prescribe in paying a temporall re∣compence in lieu of tithe.
• e) 1.37

  Fitzher. N. B. 41. G. 43. K. 8. E. 4. 13.
• * 1.38

  1. Two sorts of tithes are set downe by the c••nonist: some feudall, some Ecclesi∣asticall.

  2. The Church onelie holdeth conu∣sans of the right of tithes.

  3. The King of Fraunce his edict touching tithes is set downe.

  4. When the question is fa∣cti and not iu∣ris the exami∣nation of tythes may belong to a lay iudge.
• f) 1.39

  gl. in c. ex tenor. de for, compe.
• g) 1.40

  Rubric. de decim.
• h) 1.41

  c. tuam de ordin. cogniti.
• i) 1.42

  Text in Clē. dispendios. de iudicum c. te∣ter. de iur. calū. c. fin. de rer. permut.
• k) 1.43

  Abb. c. lite∣ras & rubric. de iudic. num. 51.
• l) 1.44

  Gemin in c. vlt. in fide for. competen. in 6. gloss. in c. vest. de loc. monet c. 8. de decim.
• m) 1.45

  Nauar. in repet. cum cō∣tingat.
• n) 1.46

  Concil. Barel. tract. moder. de compro∣mis. §. 2. gl. 1 num. 324.
• * 1.47

  Clergie men though it be meerely pos∣sessorie: yet it belongeth to an Ecclesiasti∣call iudge.
• * 1.48

  1. The nature of feudall ty∣thes is ope∣ned by the Canonist.

  2. Charles Martell is ac∣cused of Church-pil∣lage.
• * 1.49

  3. The Cano∣n••••t ••••••eth a strange take of Charles Mar∣••••ll.
• * 1.50

  Guagni. in vlt. Car. Martell.
• nn) 1.51

  Prouerb, c. 20. v. 25.
• * 1.52

  4. It is thought of Nomomath. to be but a fa∣ble.
• * 1.53

  5 One of the ancient sta∣tutes of Eng∣land is com∣pared with the edict of the king of Fraunce.
• o) 1.54

  Artic. cler. c. 2. 10. H. 4. 1. Registr. 49. b.
• * 1.55

  6 The Canon law agreeth with the cō∣mon, attribu∣ting of the de∣uision of the right of tithes to the spirituall iudge.
• p) 1.56

  Fitzh. N.B. 51. A.
• q) 1.57

  Registr. 46. b. & 47. a.
• * 1.58

  7 Where one parson may sue a spoliati∣on against the other in the spiritual court.
• r) 1.59

  2. H. 7. 12. Br. prohibit. 16. Fitzh. N.B. 51. C. 37. E. 45. B. 30. E.
• s) 1.60

  Fitzh. N.B. 51. D.
• * 1.61

  8 The execu∣tors may be sued in the spiritual court.
• t) 1.62

  1. R. 2. c. 13. 24. H. 8. c. 12. 2. E. 6. c. 13.
• u) 1.63

  Registr. 48.
• a) 1.64

  Fitzherb. N. B. 51. G.H.
• b) 1.65

  Fitzherb. ib. & Regist. 48.
• c) 1.66

  Fitzherb. ib.
• d) 1.67

  22. E. 4. 24. 38. H. 6. 21. 22. Assis. 75.
• * 1.68

  9. Of what trees tythe may be de∣maunded by the statute of 45. E. 3.
• e) 1.69

  Ploid. Com. en le case enter Soby & Mol.
• f) 1.70

  Bract. lib. 5. c. 2.
• * 1.71

  10. That the rent paied for Tythes vpon a lease for yeeres is a lay chat∣tell.
• g) 1.72

  8. R. 2. Iu∣risdict. 21. D. 5. 106.
• h) 1.73

  35. H. 6. 39.
• i) 1.74

  2. E. 4. 15. 20. E. 4. 3.
• k) 1.75

  11. H. 4. 40.
• l) 1.76

  35. H. 6. 39. 47.
• * 1.77

  1. A Precept issueth with a monition vn∣der paine of excommuni∣cation for the due satisfacti∣on of Tithes.
• m) 1.78

  Gl. in verb. praemonit. in cle. 2. de iud. c. postula sti. de homici.
• * 1.79

  1. The degrees which the Ca∣non Law ob∣serueth in pu∣nishing offen∣ces in the Cler∣gie.
• n) 1.80

  c. vni. de vit. et hone. cler. lib. 6.
• o) 1.81

  c. cler. arma. de vi. et hon. cler.
• p) 1.82

  c. praeterea de vsu.
• q) 1.83

  c. cum de∣lic. in fin. de accusa.
• r) 1.84

  c. cum non ab homi. de in fi.
• s) 1.85

  d. c. cum non ab homi∣ne.
• t) 1.86

  c. non de verb. in fi.
• * 1.87

  2. Sortes of Excommuni∣cation, are set downe by the Canonist.
• tt) 1.88

  Ouid. in Metamorph.
• u) 1.89

  c. medici∣nalis de se. exco. lib. 6.
• a) 1.90

  d. c. medici.
• b) 1.91

  c. cum de∣lic. de accus.
• c) 1.92

  d. c. cum non ab homi.
• d) 1.93

  c. l. de here. lib. 6.
• e) 1.94

  16. q. 2. c. visis in fi.
• * 1.95

  3. The com∣pulsorie Sta∣tutes of pay∣ment of Ti∣thes are men∣tioned by the Barrister.
• * 1.96

  4. Impropri∣ate Tythes at the common Law, are com∣pared with feudall tythes.
• f) 1.97

  Registr. 51. Fitzherb. nat. bre. 52. G.
• * 1.98

  10. The Or∣dinarie ex of∣ficio may cite men to pay Tithes.
• g) 1.99

  Goodal. lib. de lib. Eccles.
• h) 1.100

  Cle. 1. §. porro de sum. trini.
• * 1.101

  1. Two Sorts of Heretikes, formatus and suspectus.
• i) 1.102

  c. ad abo∣lend. de hae∣retic. c. Excommu∣nicamus de haeret. et c. se∣cundū leges eo tit. lib. 6.
• k) 1.103

  c. Vergent. in sen. de haeret. c. vt inquisit. de haere. lib. 6.
• * 1.104

  2. In what case the wife and children of Heretikes shall enioy their landes.
• l) 1.105

  c. vt officium de haere. lib. 6.
• m) 1.106

  c. decreu. co. tit. lib. 6.
• n) 1.107

  l. quisquis C. ad l. Iul. maiest. Et c. vt inqui∣sitionis de hae∣retic. lib. 6.
• * 1.108

  3. Heretikes by the ciuill Law not pu∣nishable by fire.
• o) 1.109

  Alber. Gen∣til. lib. lecti. 2.
• oo) 1.110

  c. ad abo∣lend. de hae∣retic.
• * 1.111

  4. The Cano∣nist poasteth the punish∣ment of He∣retikes to the cōmon Law.
• ooo) 1.112

  Fitzherb. nat. bre. 269.
• p) 1.113

  15. H. 8. cap. 14.
• * 1.114

  5. The pro∣fessor of the common Law bandeth back againe the pu∣nishment of Heretikes to the Canon Law.
• q) 1.115

  Liuius lib. 32.
• r) 1.116

  Flor. lib. 4. histor.
• rr) 1.117

  Ouid. Fa∣stor. 3.
• * 1.118

  1. What things may be tear∣med Church-land by the Ciuill Law.
• s) 1.119

  C. de epis. & cler. in lib. Orpha.
• t) 1.120

  ff. de reli. & sump. func. C. quae res ob∣lig. poss. l. 1.
• u) 1.121

  42. Disti. oratorium.
• * 1.122

  2 Of Church∣yards the spi∣rituall court shall hold iu∣risdiction by the common law.
• a) 1.123

  13. R. 2. iurisdict. 19.
• b) 1.124

  44. Ass. pl. 8.
• * 1.125

  3 The right of gleabe land is triable by the common law.
• c) 1.126

  19. H. 6. 20.
• d) 1.127

  Bract. li. 5. c. 16.
• * 1.128

  4 Lands deui∣sed not sub∣iect to the iu∣risdiction of the ecclesiasti∣call court.
• e) 1.129

  Fitzh. N. B. 40. G. & 35. b.
• f) 1.130

  Bracton vbi supr. Perk. tit. deuis.
• * 1.131

  5 Suites for chattels reall must be in the spiritual court.
• g) 1.132

  Fitzh. N. B. 43. G.
• h) 1.133

  8. H. 3. pro∣hibit. 19.
• i) 1.134

  4. H. 3. prohi∣bit. 28.
• k) 1.135

  44. E. 3. 32
• * 1.136

  1 That ius pa∣tronatus by the Canon law is deter∣minable in the ecclesiasticall court, and that it passeth by the word ecclesia.
• l) 1.137

  c. quod au∣tem de iur. patronat.
• m 1.138

  34. E. 1. quar. impedit. 187.
• n) 1.139

  Fitzh. N. B. 32. G.
• * 1.140

  2 The diuers significations of the word ecclesia at the common law-
• o) 1.141

  17. E. 3. 58. 47. E. 3. 5. & 21 13. H. 4. Briefe. 870.
• p) 1.142

  36. E. 3. 13.
• q) 1.143

  20. E. 3. Brief. 684. 13. H. 6. 4. 9. E. 3. 451. 22. E. 3. 2. 8. H. 6. 33.
• r) 1.144

  8. H. 5. 4. Rolf.
• s) 1.145

  45. E. 3. 4.
• t) 1.146

  12. H. 8. 7. Prior. de Hun∣ting. c.
• * 1.147

  3 The interest of the patron, parson, and ordinarie in the church is shewed.
• * 1.148

  4 What things do make a patron by the Canon lawe.
• u) 1.149

  26. q. 7. filijs ca. quicunque 18. q. 2. Abbat.
• x) 1.150

  Gl. est. in ver. subiect. § rursus in fi. c. pastor al. in Cle. de re iudi.
• a) 1.151

  c. nobis de iur. patronat.
• b) 1.152

  2. dist. c. ec∣clesiastic. et c. quod autem de iur. patronat.
• c) 1.153

  Pastoralis ∽. tit.
• d) 1.154

  Regist. 55.
• e) 1.155

  16. q. 7. piae mentis.
• f) 1.156

  17. q. 7. filiis.
• g) 1.157

  Praealleg. c. filijs.
• * 1.158

  5 Ius patrona∣tus is one of the proper obiects of the common law.
• h) 1.159

  Fitzh. N. B. 40. l.
• * 1.160

  6 That an ad∣uowson lyeth in tenure.
• i) 1.161

  14. H. 7. 28. {per} Bri. 17. E. 3. 10.
• k) 1.162

  .7. E. 3. 11.
• l) 1.163

  15. H. 7, 8.
• m) 1.164

  21. E. 3. 31. 20. E. 3. Estop∣pel. 187.
• n) 1.165

  Fitzh. 43. h.
• * 1.166

  1 Punishment p•••• laes••o••e fidei concerning a temporall acte, is not to be adiudged in the ecclesi∣asticall court.
• o) 1.167

  38. H. 6. 29. Fitzh. 43. D. 2. H. 4. 15. 24. E. 1 Br. praemuni. 16. D. S. lib. 2. c. 24.
• p) 1.168

  Fitzh. N. B. 42. F. 11. H. 4. 88. prohib. 12.
• * 1.169

  2 Periurie in an ecclesiasti∣call court, pu∣nishable in an ecclesiasti∣call court.
• q) 1.170

  Stat. de cir∣cumspect. agat. 13. E. 1. 5. Eli∣zab. c. 23. &c. 9.
• r) 1.171

  20. E. 4. 10.
• s) 1.172

  Fitzh. N. B. 42. l. 4. H. 3. prohibit. 19. Bracton. lib. 5. c. 2.
• t) 1.173

  22. E. 4. 11. H. 4. 88. prohib. 12.
• u) 1.174

  34. H. 6. 30 Br. prohib. 2.
• x) 1.175

  2. H. 4. 10.
• a) 1.176

  Lindw. in capit. aeter. sanctio. verb. periur.
• * 1.177

  3. Linwoods authoritie tou∣ching punish∣ment pro laesio∣ne fidei in tem∣porall matters at the ecclesi∣asticall Law is not admitted.
• * 1.178

  4. The Barri∣ster disproueth the general ci∣tations of Bi∣shops ad sacra∣menta prestan∣da by the com∣mon Law.
• b) 1.179

  Fitzh. nat. bre. 41. A.
• * 1.180

  5. Nomomathes encountreth him in this point.
• c) 1.181

  Crompt. Iust. p. 131. et 132.
• d) 1.182

  28. q. 1. sicut enim in fi.
• * 1.183

  6. The Ciuill Law agreeth with the Ca∣non, in mat∣ter of Oathes.
• e) 1.184

  Bartol. in l. si quis ff. de fid. instrum.
• f) 1.185

  ff. eo. tit. l. ius iurand.
• g) 1.186

  Gl. verb. paena. capi. grauis. de censi.