Things so settled do no doubt often contract a right in Time which if the power be able to support and bear it self out doth with continuance grow up and soder into strength and firmnesse enough able ere long to walk the world without guide or aid or we have little of stayedness and solidity here in England If we go about to undo all of secular depending on sacred which had its first rise and that whereby it yet stands from Rome We need not go beyond Sea for Babylon it will come home shortly to us and we shall have confusion enough within our own Thresholds Though we do not in present we must allow of many things done heretofore and settled by usurpations proceeding as well from abroad as exercised at home or the fruit of weightiest transactions will be robbed away from us perhaps the pillars of the Common-wealth shaken As to those three Epistles the first of them gives order as 't were by a binding Law thus 4 Cap. 5. Pervenit ad nos c. Mandamus quatenus Parochianos vestros monere curetis si opus fuerit sub Excommunicationis districtione compellere ut de proventibus Molendinorum Piscariarum foeno lana decimas Ecclesiis quibus debentur cum integritate persolvant It was for four sort of Tythes to be paid of Mills Fish-ponds Hay and Wool having after monition Excommunication to refusers 1 Cap. 6. The next is to the Bishop of Winchester Nuncios infra Mandamus quatenus Parochianos tuos de apibus de omni fructae decimas persolvere Ecclesiastica districtione compellas for Bees and Fruit. 2 Cap. 7. The last to the Bishop of Excester Cùm homines de Hortona de frugibus novem partibus sibi retentis decimam Ecclesiae cujus Parochiani sunt sine diminutione solvere teneantur antequam id faciunt servientibus Mercenariis suis de frugibus non decimatis debita totius anni pro servicio suo impendant tunc demum de residuo decimam solventes Mandamus quatenus eos cogatis ut decimam statim fructibus collectis persolvant atque de subtractis retentis dignam satisfactionem exhibere procurent It seems they were willing to deduct the charge of the Fermage before they marked out the Tythes paying their servants out of the fruit for the work bestowed about them and so apportion onely out of the free bounty of heaven 3 Cap. 22. 26. 28. sequ Vid. Lyndewood tit de decimis cap. Erroris Cap. Quoniam propter cap. Sancta Ecclesia a thing much stood upon and by this Law stood against which willed the tenth of all as it grew and so was the pattern of the Old Testament Their seed and labour were also chargeable yet they were bound up of All without any deduction And if Jehovah gave them their land which presuming they would sow he might the better expect a charge from his own gift This exaction is no less reasonable or more burdensome from us who Give nothing of our own but issue out onely what was Given and set aside by others it Iehovah required to be restored back to him of his own we doe but pay what others of their bounty Gave And therefore with them as to separating any thing we are possessed of in full title as our Own Jam sumus ergo pares Out of the Canon 4 Annal. par 2 pa. 543. Edit 1601. Francofur That it was taken out of the Councel of Rosne ex Concilio Rothomagensi the setter forth hath noted in the margin Roger Hoveden points us to another plant growing in our own soil which no doubt lived to take fruit downward and bear fruit upward and it was set toward the end of this Hen. 2. time by Rich. Archb. of Cant. in a Synod at Westminster the Lo. day after the Ascention where the King and his son being present passed thus Omnes decimae terrae sive de frugibus sive de fructibus domini sunt illi sanctificantur Sed quia multi modò inveniuntur decimas dare nolentes statuimâ—is ut juxta Domini papae praecepta admoneantur semel secâ—ndò tertiò according to the High Commission before given out by Will 1. ut de grano de vino de fructibus arborum de foetibus animalium de lana de agnis de butyro Caseo de lino Canabe de reliquis quae annuatim renovantur Decimas integrè persolvant or if not Anathema A full and plain Law speciatim for Corn Wine Fruit breed of Cattle Wooll Lamb Butter Cheese Flaxe Hemp and all that grows and renews yearly c. and of what power in the state may be guessed both by from what before where the Superiour Powers had joyned to intrust the Church in such matters which implies their authority still and further here the K. and his son gave the present countenance of their persons to patronize and establish it And heed also the Dueness supposed in the beginning they were not now so much willed to be payed as shifters to be brought in to discharge of known duties Elsewhere also in the same 1 Par. ead pa. 75. Authour Hubert Arch. of Cant. kept a Synod at York the Tuesday after Saint Barnabies day 6 Rich. 1. where one of the binding results of Councel speaks thus Cum Decimae sint tributa egentium animarum ex praecepto Domini dari debeant non est reddentis eas diminuere Therefore all to be paid without any diminution for Fermage of which before entirely And much severity is again in another 2 In ead pa. 808. Provincial of the same Hubert afterward with Excommunication to those should withdraw any thing to pay the Harvest-mans wages or the charge of new-broke grounds or not to the Parish Church c. But because this meeting was against the Lord Chief Justice his Prohibition and so had not the authority of the secular power I pass it over though then it were of some doubt whether such meetings were valid which is since clearly resolved that they are not by the Statute 25 Hen. 8. 19. And so for another 1 Ib. Pa. 809. Canon against whether Templars or others should receive Tythes from Lay-hands in the same Authour To some time of Hen. 2. is referred a Councel Lateran under Alex. 3. limiting the former liberty of paying to Any Church to the Parochial as fittest to have benefit and nearest to take the dues up though later and quicker apprehensions remove the scene to Innoc. 3. who in K. Iohns time expressed his single will onely from the Lateran Church This gave the mistake or might well M. Selden has it from the 2 Cap. 8. sect 23. Vid. cap. 10. sect 2. print and the 3 Instit 2. pa. 641. Lo. Cook from the more authentique Roll in the Tower speaking fully what a papall Constitution might and no more thus Pervenit ad
stranger to their proceedings nor as to gain or lose did I ever do or suffer what might import favour or wrong to be thereby holpen or hindred at any time Onely this I have heard spoke out by the clear and loud fame of the world That here mens rights were tried and examined and lost and recovered Pleas were heard and sentence given and that sentence did or should or might have found obedience If all had not been right and square as we say exactly justifiable If there had been any remedy at Westminster or any where else that could have been thought of If the Goddess Themis had had any Asylum or refuge upon Earth whereunto covetous and carnal men might have had recourse in their fears with any hopes of protection in those affrighting tempests that like some kinde of lightning melted their gold and silver in their purses yea out of their purses No doubt but such desired shelter would have been made to with greatest diligence and truest endeavour Questionless in what dark or remote corner soever it had hid it self above ground men would have both sought it carefully and found it successfully Undoubtedly every one man would have told his neighbour and he another these more and by degrees all The information would so soon and luckily have propagated it self that no manner of doubt should now have remained whether such a place had been or not the path would have been more trodden to it then to any Church or Market-place in England But they knew there was none such They knew all was there of this nature while it was firm and answerable They knew those sentences were there in their kinde by the approbation of all men and Authority of the Law valid as those at Westminster Pulsa dignoscere cautus quid solidum crepet They knew Try whoso would There was that solidity Civil Laws did approve successions of Parliament had allowed the King had given leave the whole State had given allowance of those proceedings and above all the Law held them just and according to Law And so unless her self would contradict her self the head fall off from a principall member or Justice oppose Righteousness They all the Magistrates Powers Laws and Lawyers of England knew and could not but pronounce a just sentence in that Court for Tythes to be just were it for sheaf lamb fruit venison the tenth Thrave or but a Tythe-lock of wooll What a sentence did at Westminster that a decree did there What a Verdict and Judgement upon an Assise That a conclusive determination upon mature deliberation did here and What sufficient ground of Right that gave of Dominion that a man might thence claim a piece of ground or debt of money Hic codex est meus Haec domus est vestra By equall vertue of a like sentence here this due charged upon every parcel of land or herd of Cattle had declared right yea and judgement for it in order to execution Or if any would not come and submit vocetur primò secundò quòd si nec sic ad emendationem venerit Excommunicetur as tertiò leave was given in the Charter Thus as to the power intrusted with the Church I have now almost done we see what the Supream Authority gave in Commission we see what use was made of it we see what connivence or more there was of all other powers and what obedience likely but of this the less being unacquainted at Offices We cannot in short doubt but the Church made Laws about Tythes that they caused them to be done to execution that the State inabled them that the whole Civill Power more then connived or permitted appointed authorised and strengthned that power whereby was acted thus according to office and duty on one part and leave desire expectation and full trust on the other The result of all doubtless a full right a clear assured undoubted fast safe and honest title as good as Any had to Any thing and the evidence of things may discharge the superfluity of more wast words If any right were anywhere it may doubtless be reasonably thought to have been unavoidably Here Sure and Thus. There remains yet one onely thing more somewhat in intention was never quickned to full Act but was purposed to give much in little the life spirits and vertue of all before in the new intended to be purified Canon Law by Hen. 8. authority A thing often glanced at but here fit to be represented together and briefly and summarily was therefore thus The 1 25 Hen 8 19. Clergy upon casting off the yoak of forain Supremacy and submitting to that King petitioned to have the Provinciall Synods and all the Canon Law as far as of force here to be viewed and purged and this to be done by thirty two persons to be chosen by the King wherof sixteen of the Temporalty sixteen of the Clergy The King granted readily what perhaps he had willed to be asked and the persons were to be members of the present Parliament but because so great a wheel could not be brought about in so little time the Parliament sitting their desires inlarged were also granted that it might be done after and then so many Canons as should continue approved should be retained the rest as refuse cast away This was upon the matter to furnish the Spirituall Court with a new rule wherto as much of the old as would should have served the turn again but till that were done what was in being to remain and this so farre intended and minded even with an eye to this very particular that after when a 2 Provided always and be it enaed by Authority aforesaid that this Act for Recovering of Tythes ne any thing therein contained shall take force effect but only untill such time as the Kings Highnesâ—e and such other 32 persons which his Highnesse shall name and appoint for the making and establishing of such Laws as his Highnesse shall confirm and ratifie to be called the Ecclesiastical Laws of this Church of England And after the said Laws so ratified and confirmed as is aforesaid that then the Tythes to be paid to every Ecclesiâ—stical person according to such Laws and none otherwise 27 Hen. 8. chap. 20. new Law was needed for Tythes Proviso was thought as fit to be added that it should obtain but till the promised reformation In the mean while time slipping away and little or nothing done in the business under nor after Parliament there was need to have the power 1 27 Hen. 8. 15. renewed for longer date which was done once and again and so at length for the whole 2 35 Hen. 8 16. time of the Kings life K. Edw. 6. also 3 2 3 Edw. 6. 11. continued it for three years in his time All repealed by 4 1 2 Phil Mar. chap. 8. Queen Mary but revived by their 5 Elizab. 1. c. 1. Maiden Sister The fruit I find
THE CIVIL RIGHT OF TYTHES WHEREIN Setting aside the Higher Plea of Jus Divinum from the Equity of the Leviticall Law or that of Nature for Sacred Services And the Certain apportioning of Enough by the Vndoubted Canon of the New Testament The Labourers of the Lords Vineyard of the Church of England are estated in their Quota pars of the TENTH or TYTHE per Legem terrae By Civil Sanction or THE LAW of the LAND Which being the foundation of All Civill Right Here must needs render their Spoliation Wrong the Taking or withholding as Injurious as of Any other MANS DVE Humbly represented to the Judicious and Pious Consideration of all Sober and advised Christians who fearing God and hating Covetousness have learned Christ fo far as To give every one His Own and would do no Wrong for Conscience sake By C. E. Mr of Arts. Quicquid enim jure possidetur injuriâ aufertur Quintil. Decimae autem EX DEBITO requiruntur qui eas dare noluerit RES ALIENAS invasit Augustin Serm. 219 de Tempore Render Therefore to All THEIR DUES Rom. 13. 7. Licensed and Allowed LONDON Printed by Tho. Newcomb for JOHN HOLDEN at the Anchor in the New-Exchange 1650. REVERENDISSIMO DOCTISSIMOQUE JACOBO USSERIO ARCHI-PRAESULI ARMACHANO PIETATE ERUDITIONE CAETERISQUE ANIMI VIRTUTIBUS MAXIME CONSPICUO DIATRIBAS HASCE SUAS DE. DECIMARUM APUD ANGLOS JURE NATIONALI ET POLITICO SUMMA OBSERVANTIA D. D. The CONTENTS  AN Introduction declaring the occasion scope and limits of the Whole with way Made to Sundry Propositions of CIVILL RIGHT in generall pa. 1. Chap. 1. Propos 1. That by the Law of Nature all was left at first in Community And this according to the Canon Civill and Our Common Laws not opposing the Law of God p. 9. Chap. 2. Propos 2. That yet Inclosures may be the Scripture approving and furthering p. 27 Chap. 3. Propos 3. That the Fence making out those Inclosures is Everywhere THE LAW p. 31 Chap. 4. Prop. 4. Which being manifold That in the world The Maker of Severals is The Law of Nature or Nations p. 37 Chap. 5. Prop. 5. In any Particular place The Law of That Nation p. 39 Chap. 6. Prop. 6. Individually with Us OUR LAW p. 41 Chap. 7. Here with us Three distinct titles made out for Tythes 1. Of Donation strengthned by Confirmation 2. Possession advantaged by Being Possessed for God 3. Praescription lengthned for through the space of many Praescription-Times with what Donation the first of them is p. 56 Chap. 8. The Donation in Kent of K. Ethelbert and his people and that it is genuine p. 62 Chap. 9. The Donation of K. Aelfwald in Northumberland and of K. Offa in Mercen-land p. 68 Chap. 10. The Donation of K. Aethelwlph of All who was over All. p. 70 Chap. 11. Henceforth needed but Confirmation and Memorials speak accordingly of not Giving but Paying what That is and Tradition superseded as of a Right p. 80 Chap. 12. The particular confirmations of K. Alfred K. Aethelstane and K. Edmond p. 82 Chap. 13. Of K. Edgar with sundry Ecclesiasticall Constitutions p. 84 Chap. 14. Of the Parliaments of Aenham and Habam p. 85 Chap. 15. Of the Danish Knoght in K. Edgars Law repeated p. 87 Chap. 16. Lastly of Edward the Confessour in his composition of the Common Law That work done by Him Whence he had his Materials with Recapitulation and Inforcement of all thus far to the Conquest p. 89 Chap. 17. Behither a partition of the strengths into four sorts 1. The allowance of K. Edwards Laws 2. Church-Constitutions 3. Impressions of the Secular State 4. Particular mens Votes As to the first what William 1. Will. 2. Hen. 1. Stephen of Bloys and K. John passed to make over these Laws into the Charters and that They were K. Edwards p. 99 Chap. 18. In Entrance to the Church remembred 1. That Tythes were under the Conquerour 2. Confirmed by Hen. the 1. 3. Owned in a Parliament at Westminster in 3. of the same Being come in The Patent of the Court-Christian represented with taking Tythes into that Jurisdiction likely by vertue thereof p. 110 Chap. 19. Laws or Canons made by the Church One under Will 1. Another under Wil. 2. Another at Windsore Another at London Two at Westminster Three Decretalls sent hither and to whom What force They had here and vertually the like of Then have yet More from R. Hoveden with Parochial Right settled by Authority from the Laterane Councel Two other Decretals sent in K. Johns time also of force But the chief strength is in the Provincials collected by W. Lindwood in Quoniam propter Quoniam audivimus Sancta Ecclesia Quia quidam c. p. 120 Chap. 20. The Canon of Sylva Coedua Strength of Church-Power to create Right where not restrained insinuated by the Statute of 45 Edw. 3. 3. against the Excess of that Power The Proceedings in the Court-Christian to Recover these Rights What was intended by the Stat. of 25 Hen. 8. 19. about Reforming the Canons What was done The Canons to this purpose Given Till these be authorised All Former in force as by the Proviso of that Statute p. 137 Chap. 21. Among Seculars the firm Rooting Tythes have in the Great Charter The solemn Ratification and due Great esteem thereof with address by Apostrophe to those are against them that they keep but fast here and This will settle Tythes Their Redargution else from their own Principles and a Christian admonition to Constant Equall and Just dealing p. 148 Chap. 22. The Statutes of Regia Prohibitio under Hen. 3. Of Circumspectè agatis and Consultations under Edw. 1. Articuli Cleri under Edw. 2. Four more under Edw. 3. Divers under R. 2. and Hen. 4. All but the Exempted now paid and Who were Exempted p. 162 Chap. 23. Vnder Hen. S. Wary and just proceedings as to this matter The preservation of Tythes when what next was Cast away The Need of Temporals for Divine Service Two Statutes by Consequent establishing them sc 24 Hen. 8. chap. 12. 25 Hen. 8. chap. 19. and Two more purposely sc 27 Hen. 8. chap. 20. 32 Hen. 8. chap. 7. p. 177 Chap. 24. The last and most vigorous under Edw. 6. p. 192 Chap. 25. An Examination of the Lo. Cooks assertion occasioned by his Comments thereon That Tythes were taken into Church-Cognizance by some old Statutes as about Edw. 1. time And that Not from nine alledged probabilities p. 198 Chap. 26. By occasion of the mention of them in that Statute The More ancient dueness of Personal Tythes laid forth With the Laws in force for them before the Statute p. 205 Chap. 27. The grant of the Petition of Right a Concession of All. That None are Burdensome because laid on by Law Application to those that Plead this Petition that if they understand it It Cannot be Against but Must be For them because they were at the time of that grant A Right p.
by process of bâ—re command And 5. By vertue of the late Stat. of 32 Hen 8. and 2 Edw. 6. No more And these were but some scattering exceptions from the generall rule neither He prefaces that inquiry with 3 Pa. 411. these words It is clear saith he by the practised Common Law both of this day and also of the ancientest times that we have in our Year-Books that regularly the Jurisdiction of Spirituall Tythes that is of the direct and original question of their right belongs I think as in all other states of Christendom properly to the Ecclesiastical Court And the latter Staâ—utes that have given remedy for Tythes infeâ—dated from the Crown after the dissolution leave also the Ancient right of Jurisdiction of Tythes to the same He inserts 4 Pa. 421. after that since about K. Johns time Original suits in Tâ—mporall Courts for Tythes have been rare Adding 〈…〉 discourse of the Indicavit and changing the proportion of the dues of a Church to be the ground of it by the Statute of West 2. cap. 5. 5 Pa. 427. that long before Tythes were demandable of the owner detaining them of their own nature and pleadable in the Spiritual Court and there onely and concludes 6 Pa. 447. that since 22 Edw. 3. there have been no Original Suits for Tythes in Temporal Courts saving onely upon Prohibitions at second instance and by the Stat. of 32 Hen. 8. and 2. Edw. 6. It is some difficulty to understand learned men but the consent these things seem to have with the truth and have both among themselves and with other of like nature abroad renders it hoped there hath been here no mistake which if Then hath been gained 1. The erection of the Court Christian by Will 1. 2. The transaction of Spiritual things there even though formerly under the cognizance of the Common Law and Lawyer immediatly 3. Tythes as Spiritualibus annexa and evidently belonging to Religion and thence within the compass of the Canons To move here as in their proper sphere Remember their Right was well enough provided for before Here were onely to be some emergent decisions for their regulation or Recovery of stated dues 4. The Lay Jurisdiction outed as to cognizance immediate direct and ordinary 5. In practice things have been no doubt according 6. And therefore we must now chiefly for a while attend the Church CHAP. XIX WHich we shall in two parts as well to the Jus dare as Ius dicere to what we finde in this Interval to have been Legislative as what was Executive Giving more largely what belongs to the former wherein was used the allowed power given in Regulating the Rule framing Canons or setting or keeping to right that Law was here the rule of Right but more sparingly touching at the later which concerned known practise For that such Courts were kept is a thing vulgarly and to all known That a discussion was there and a sentence the ground of Right and Own the Lawyers of the other Gown will not deny That things were there disposed transposed and settled to full property the event did shew Of this therefore the more sparingly which is known and did but help to Recover Right That which Gave it being more proper for us and both fitly ranged under that generall head of what was done by that power we are now confined to which is Ecclesiastick And here first If the Synod at Westminster whereof 1 Pag. 111. before were but a Synod remembred be it and granted hence what authority it must then have had And likewise another more clearly a Synod under the Conquerour but written in Saxon where divers laws preceding of fasting alms penance c. we have 2 Selden Hist of Tythes chap. 8. sect 14. Leâ— Tythes be paid of all that is possessed by the Lords bounty In a Councel at Clevemount in France one 3 Matth. Par. ad an 10â—5 pa. 21. in Will 2. Canon was Vnaquaque Ecclesia decimas suas habeat 〈◊〉 ad aâ—â—am transferantur Let every Church have its own Tythes without confusion Which would not likely have been taken notice of in our authentique story if it had not concerned us as indeed it did and was no doubt 4 Haec quae sequuntur caâ—itulâ— constituit Yrâ—â—nus universali Ecclesiae tradiâ—â—it observanda Id pa. 20. of Catholique observation In 5 Tildesly Anâ—madvers on M. Seldâ—â—s Hist pa. 164. Hen. 1. time I finde it decreed in a Councel held under William the Archbishop about the year 1129. Deâ—imas â—icut Dei summi Dominicas ex integro reddi pracipimus We command they be fully allowed aâ— the Lords Demoâ—â—es In 6 Selden Vbi Sup sect 15. another at Windsore about then is this Canon Vt Laici decimas reddanâ— sicâ—t praeceptum est That Lay-men pay as is commanded I am now transcribing and so hastening It will not be long ere we get on our own wings again 7 Id. sect 18. Alberique Bishop of 〈◊〉 was â—egate here under Innocent the second in K. Seâ— vâ—nt 〈◊〉 and He held a Synod in Anno 3. where is this Canon De omnibus Primitiis rectas decimaâ— dari Apostolicâ— aâ—tlâ—â—ritate praecipimus quas qui râ—ddere noâ—â—â—rit Anathemaâ—is in enm sententia proferatâ—â—s Let him that pays not be Excommunicate where it seems Primiâ—iâ—â— must be understood for every new years encrease 8 Mss. in the publique Library at Oxford cited in the 〈◊〉 ofâ— D. Ridleys View of the Laws pa. 1â—5 In Eugen. 2. time about the year 1147 under the same King was held a Synod at Westmiuster wherein tythes are disposed of It has no more then a supposition of them and that the Church disposed which may yet crave place here as not of no consideration Nullus Abbas Nullus Prior Nullus omnino Monachus aut Clericus Ecclesiam sive decimam sine Episcopi Consensu c. And 1 Ib. two years after in another Synod there to the same purpose Vt nulla persona Ecclesias vel decimas accipiat sine authoritate Episcopi By the way we may not about these times much look for set and purposed binding Laws about Tythes They needed not For Such had passed before sufficient to raise and assure a Due But onely to Regulate dispose or determine about emergent controversies concerning them and these not wanting In Hen. 2. time I finde Alexander the third directing severall Constitutions for that force his Orders had here to the Bishops of Canterbury Winchester and Excester They are taken by Gregor 9. into 2 Lib. 3. tit 30. de decimis the body of the Decretals and no doubt had their power and found obedience here for 3 Vid. Selden Review pa. 489. where the Kingdome did not crosse the Canons were and it seemes by the Proviso of 25 Hen. 8. 19. are binding Laws And let no man object here the usurpation or allay of credit from forain authority
Assisters The rest did so should they set out their Dues as of Right and accustomed A strong evidence they were due indeed when the State would not suffer them unpaid Now not onely these but some others it seems were wavering or shifting The Fermours of Aliens gave within few years after occasion to this Vote Item 1 5 Hen. 4. cap. 11. It is ordained and established that the Fermours and all manner Occupiers of the Mannours Lands Tenements and others Possessions of Aliens shall pay and be bound to pay all manner of Dismes It seems others did for this was no positive single Imposition upon them but onely an Exemption from that they would have been exempted from thereof due they were then no voluntary Benevolences but discharge of Duty and Due upon Command though more acceptable if their readiness made them free-will-offerings To Parsons and Vicars of holy Church in whose Parishes the same Mannours Lands Tenements and Possessions be according to the manner then used and custom established for parochial discharge so assessed and Due Again as the law of holy Church requireth That the bottom indeed of all looked upon by the State and here required to have obedience and in others by the same reason for why should we think These had any speciall Obligation to a Rule by themselves from the universal which did rule all Notwithstanding that the said Mannours Lands Tenements or other Possessions be seised into the Kings hands or notwithstanding any prohibition made or to be made to the contrary And yet notwithstanding all this too that backwardness and evasion of the Cistertian crept further which made it needfull to binde up all by an universal Decree within few years after The grievance and remedy are there both thus proposed together Item It 1 7 Hen 4. cap. 6. is ordeined that no person Religious or Seculâ—r which is large enough of what estate or condition that he be by colour of any Bulls conteining such Priviledges There must be Priviledges and if Bulls from Rome could not afford them What as then could The common condition of things is known to be discharged of Dismes pertaining to Parish Churches Payment and Parochial Again Prebends Hospitals or Vic. rages purchased before 1 Rich. 2. or sithence not executed shall put in erecution any such Bulls so purchased or any such Bulls to be purchased in time to come And if any such Religious or Secular person of what estate or condition he be from henceforth by colour of such Bulls do trouble any person of holy Church Prebendâ—ries Wardens of Hospitals or Vicars so that they cannot take or enjoy the Tithes Due or pertaining to them of their said Benefices Then to incur like pain at the Cistertian before Thus to and in the time of Hen. 4. whither the proceedings shew all along the good will of the State whose Acts these have been in favour of these Dues looking on and not hindering but as was occasion and fit furthering the due execution of their neighbouring Courts Laws ever and anon renewing the pledges of their love and testimonies of their good will that the wheels might keep moving that brought in Tithes from every Possessour and now it was as clear all abroad and evident to us they did so as that men possessed any thing Henceforth therefore particular Laws were not multiplied as they needed not aiming purposely and directly at the settling or recovery of them but those that were were left to due execution and that enough The fruit doubtless by the Churches Authority as before directly used to call for them and the Secular Powers assistance thus to bring them in such an universall Payment save where Achan would hide his Golden Wedge from the holy use it had been designed for or 1 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Acts 5. 2. Slipt off somewhat from it When our Tithes might have probably seemed our own we had colour of liberty to use them as we saw good But having made them Hâ— whose they are let us be warned by other mens example what it is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to wash or câ—â—p that Coyn which hath on it the mark of God Hâ—â—ker Polit lib. 5. Sect 79. pag. 429. Ananias and his Wife 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 clip the Shekel appointed for the Sanctuary I mean coveteous or profane men did by evident injustice hold back known Dues against the Law that it needed and had a peculiar Exemption whoseover now paid not I need not be exempted from a Nineth or Eleventh because none due to be required I want no special Priviledge to be free from contributing to a Paschal Lamb or my Shekel for Jerusalem yearly or the old Peter-pence because none such now exacted among us but to be free from this Tribute to the maintenance of Christian Religion an Exemption was needed which proves the Suppositum strongly even as an Exception supposes an allowance of things otherwise by the general Rule and an Exoneration or Discharge from an Impost or Quit-rent to have been paid allows that it was due Three 2 See a little before but remember that this Exemption was not then so much granted to these Orders as a general Exemption granted before to all Orders restrained then to these sorts were indeed so exempted and it was need so else they must have paid 1. The Templars till they were 3 Vid. Stat. de terris Templariorum in 17 Ed. 2. p. 111. of Pultons Abridgement taken off in Ed. 2. time and their Indowments settled on the Knights of Jerusalem 2. Those Knights themselves keeping their own and succeeding to what as but now And thirdly the Cistertians of which also before all by the Decree of the Laterane Councel and with them some others also As All the Orders 1 Caeteris verò ut de novalibus suis quae propriis manibus vel sumptibus excolunt de nutrimentis animalium suorum de hortis suis decimas non persolvant Alexand. 3. in Deciet lib. 3. tit 30. cap. 10. for their own new broke Grounds their pasture ground for their Cattle and their Garden fruits some 2 Whereof see a very learned Discovery in Mr. Selden of Tythes cap. 13. Sect. 2. for all their demains by particular Charter from Rome or by prescription of lands in the possession of Clerks or by Grant or by Composition or by Custome but these still and the more they were do all so much the more confirm the general usage from which that men might be free they needed this Exemption And this so well settled and quietly submitted to that till the lowd and boisterous stormes in Hen. 8. time when all was shaken I meet not with here any disturbance or any publick order that it seems needed or had occasion to call for any new obedience The Canons last as they had been placed as they were and assisted which was never wanting with the whole force of the Temporal Power kept all in awe
nor were Tythes but brought into the Store-house All in the Prophets phrase to have better use made of them than I doubt commonly was For 't is the charitable intention of man the wise provision of the Law by the blessed providence of God that sets things often in a good way to honest or holy ends but the corruption of man hinders seldom does one half come to good or are the things not to abuse enough perverted how well or piously soever levelled and intended CHAP. XXIII THus for sixe successive Princes Raigns Under Hen. 5. Hen. 6. Edw. 4. Edw. 5. Rich. 3. and the wise puissant Hen. 7. nothing being heard of murmure and discontent but all in peace and silence The Canons as in Lindewood c. governed the Consistory Westminster sent to controul as often as any noise was made of extravagancy by Prohibition Some prudent Statutes as Circumspectè Agatis Articuli Cleri c. had bound their hands too that they might not send as oft as they would but when abuse called for remedy And so things went on in Harmony for justice peace and order through this intervall Laws already made were obeyed and more were not made because those that were were both for their end sufficient and set in a way to have sure execution But now in that general Earthquake when this Earth was moved and all the Inhabitants thereof though some Men stood and some Parts were not overthrown When the turbulent passions of that mighty and boisterous Prince left nothing untouched or unshaken and that some might seem at least to stand the faster other parts were thought fit to be quite pulled down yea buried and intombed under the ruines of their own glory as 't were by the fatality of Jerichoes curse Iosh 6 26. Never more to be reedified Maledictus vir ille coram Jehova qui surget ut aedificet c. yet even Then was no prejudice offered nor diminution made of this part of Ecclesiastical Revenue or Jurisdiction to bring it in a great argument of its strength that had over-lived a storm and some necessity that it was preserved when that next was chosen to be cast away But before this great work was done by himself and his son divers new sinews of strength added to confirm all that had passed before as well by clearing the right had been by 1 27 Hen. 8. 20 32 Hen. 12. 2 Edw 6. 13. some new Statutes to evidence the justice of the claim as by creating a new power to fetch them in and inabling secular persons at least to sue for them in their own Court the new Statute way Not abrogating the Ecclesiastical but giving choice of this Pointing to a new remedy besides the old as 2 So is interpreted and used and of force that of 2 Edw 6. 13. commonly understood though some doubt 3 That the claâ—se of treble damages in 2 Edw. 6 13. is to be sâ—ed in the Ecclesiasticall Court onely See Dr. Ridleys view of the Laws par 3. chap. 2. sect 5. That Customes in payment of tythes are tâ—â—able onely in the Ecclesiastical Courts was averred to be proved before by him Sect. 3 and see hereof the Proviso transcribed below rationally But for certain not destroying That utterly For the 4 And that for subtraction of any of the said tythes offerings or other duties the Parson Vicar Curate or other party in that behalf grieved may by due processe of the Kings Ecclesiastical Laws of the Church of England convent the person or persons so offending before his Ordinary or other competent Iudge of this Realm having authority to hear and determine the right of Tythes and also to compel the same person or persons offending to doe and yeeld their said duties in this behalf 27 Hen 8 12. And in case any person or persons of his or their ungodly perverse will and mind shall detain or with old any of the said tythes or offerings or part or parâ—el thereof then the person or party bring Ecclesiastical or Lay person having cause to demand or have the said tythes or offerings being thereby wronged or griâ—ved shall and may convent the person or persons so offending before the Ordinary his Commissary or other competent Minister or lawfull Iudge of the place where such wrong shall be done according to the Ecclesiastical Laws And in every such case of matter or suit the same Ordinary Commissary or other competent Minister or lawfull Iudge shall and may by vertue of this Act proceed to the examination bearing and determination of every such cause or matter ordinarily or summarily according to the course and processe of the said Ecclesiasticall Laws and thereupon may give sentence accordingly 32 Hen. 8. 7. often mention of it upon other occasions as well as this with a clause of Proviso 5 And be it enacted by the Authority aforesaid that if any person do subtract or withdraw any manner of tythes obventions profits c. that then the party so subtracting and withdrawing the same may or shall be convented in the Kings Ecclesiasticall Court by the party from whom c. to the intent the Kings Judge Ecclesiasticall shall and may then and there bear determine the same according to the Kings Ecclesiastical Laws And that it shall not be lawfull unto the Parson Vicar c. to convent or sue such withholder of tythes obventions or other duties aforesaid before any other Iudge then Ecclesiastical 2 Edw. 123. inserted to fence all from violation shews plainly that K. Henry meant what he did and none should or could cross his purpose sc though the Pope went off to keep the Church-power up and though the Abbies went down yet Tythes for the support of Religion Must Not be medled with Such power I mean as might begin and end its motion wholly within it self like the wheels of a watch that keep themselves going by help of a Spring at home needing no power from abroad not of a clock whose moving weights are without and so liable to the inconvenience of forain disturbance or as the highest sphere of all Primus Motor that keeps it self a going by it self meerly not like the inferiour that wait on superiour influences Such power and the Jurisdiction of Tythes therewith and thereby and the right of Tythes by consequent yea in Statute words expressed not needing any derivation He kept up in vigour life strength and quickness as it was of use And as well the Records preserved as other means of information obvious enough do assure that to his time through his time in it and on this side the Law continued which settles all to settle these and leave them settled an indefeasible inheritance to us their unworthy posterity And as they were left so I hope for Gods glory and the maintenance of his service and servants the labourers that bring in His Harvest they shall not but always continue to all succeeding generations For Who hath
possible conversation or acquaintance is but in some plain simple English Book perhaps broken Statute Book or perhaps but some Abridgemement or Compendium Dispendium those excellent instruments of advancing ignorance and by help of little cost or pains inabling sluggards to know upon the matter as much as comes to just nothing build certainly and confidently upon this little as if it were All enough are resolute confident as if there were no more and if any thing be obtruded or questioned farther they bestow but their attention or wonder with 1 Act. 13 41. Habak 1. 5. Jewish incredulity they will not believe nay though a man tell it them Suspecting all that is beyond the narrow compass of their very short reach and not much caring if all other superfluities they esteem them so because they are not able to judge of them were buried in the pit of utter forgetfulness As little considering that their foundations have foundations and those yet again other and other and under and yet farther under and take away either or the advantage and stay of either the readiest way is taking to stir all to unsettle the firmest to tumble down the highest to leave order happiness peace and wealth buried under a heap of rubbish and the fair piles we now behold and enjoy even All the fruits of an orderly and advised disposition of things intombed under the scattered fragments of its own ruine and very confusion For old things are not to be cast away without possible inconveniences to new the foundations unseen are still a part of the fair building yea do support it and take away the lowest the next still sinks of any thing and by degrees All Even so take away the first settling Laws the under-praestructions whereupon things had their first settling composition and stay the rest totters and may expect ere long ruine in a State Particularly for tythes their fastest and most solid strength seems below in the old unseen acts of gift and first disposition the new can be never but a fair and presently useful declaration to set out uttermost to the sight of the world and as the paint that shines for people to gaze upon the strength of the wall and house both is in the inclosed materials and rocky foundation Yet because these are of great estimation with the multitude and ought indeed to be of some with All I shall not shun to give them intire in the opinion of the many enough to create a right if nought else were as if nought else were perhaps they might But as now things stand are so far from doing it effectually and onely that they do it not in any degree Any more then if a present Act should be made about Fines and Relieves the next age might think it gave the Lord that Right we know he enjoys already Or as a new Act about Quit-rents and Herriots should be mistaken to raise or warrant the things no man but knows had right before The most in addition any new order can doe being but to rectifie dispose or settle some new course about the things so due already that 't is that injury comes near a Theft to subtract or deny the just payment of them So the following later Statutes nor do nor can any more but to revive quicken and establish the ancient right of tythes extant and of long being before awaken mens dulness inforce their payment remove obstructions that have grown in by corruption with time and make that which is shine brighter and fairer by the fourbishing over of a new and fresh authority Their dueness being that these statutes did never intend to meddle with infringe further help nor hinder but they were what they were before and it were one of the most pitiful pieces of Ignorance befitting onely the Vulgar heard of unlettered Simplicians and deserving rather commiseration then the exercise of any of our manly passions to entertain a thought to or toward the contrary What! that these later Statutes created tythes Made them due Gave them that their abrogation should have a possibility of taking them away and what the service of God has to trust to by virtue of their promulgation This is such a shallow conceit is onely worthy the weak brains of the multitude where onely it possibly could be hatched or can be tolerated or indured no more excusable then if any should say Aristotles Astronomy gave the Sun a being in the Firmament or Charta Forrestae first set up Game or a present Law if it should dispose of did erect Parks and Chases or a new order about Escheats or Mortuaries the next mistaken Age might interpret to give them being and first beginning But to the words of the Statute which both in the beginning and progress have dueness of Tythes existent and then in being supposed and they are as followeth Forâ—smuch as divers numbers of evil disposed persons inhabited in sundry Counties Tythes shall be paid according to the Custoâ—e of the Parish c. Cities Towns and places of this Realm having no respect to their duties to Almighty God 27 Hen 8. cap. 20. but against Right and good Conscience have attempted to subtract and withhold in some places the whole and in some places great parts of their Tythes and Oblations as well personal as prediâ—l Due unto Almighty God and holy Church and pursuing such their detestable enormities and injuries have attempted in late time past to disobey contenm and despise the processe laws and decrées of the Ecclesiastical Courts of this Realm in more temerons and large manner then before this time hath béen séen For reformation of which said injuries and for unitie and peac to be preâ—erved amongst the Kings Subjects of this Realm our Soveraign Lord the King being Supreme Head in Earth under God of the Church of England willing the spiritual rights and duties of that Church to be preserved continued and maintained hath ordained and enacted by Authoritie of this present Parliament That every of his Subjects of this Realm of England Wales and Calais and the Marches of the same according to the Ecclesiastical Laws and Ordinances of his Church of England and after the laudable Usages and Customes of their Parish or other place where he dwelleth or occupieth shall yéeld and pay his Tythes and Offerings and other duties of holy Church and that for such subtractions of any of the said tythes offerings or other duties the Parson Vicar or Curate or other partie in that behalf grieved may by due processe of the Ecclesiastical Laws of the Church of England convent the person or persons so offending before his Ordinarie or other competent Iudge of this Realm having authoritie to hear and determine the right of tythes and also to compel the same person or persons so offending to do and yeeld their said duties in that behalf This was the Legislative part follows order in case of contumacy that the Ordinary or other
better then a fool Bear with my plainness thou wilt rather thank me for it when thou shalt see I intend not Reviling or Reproach but necessary home caution and admonition Resolve with thy self There is none so highly such and dangerously too as he that thinks himself wiser then the Law Which is as a Lord Chief Justice said Summa Ratio the strength and Quintessence of Humane reason applied to the common good and what must He needs be then that goes on the contrary part that undervalues it that opposes it that censures it and in stead of obeying the Oracle quarrels with it Laws are made to be reverenced not disputed of obeyed not judged submitted to not censured by every forward man scarce by every Congregation of men scarce by knowing wise men and who is he then that of his own private head dares busily controul and censure abrogate and revoke repeal and establish the whole or a part as much as seems good unto him be it what it will of a Wise Parliaments Petition a dead Kings Concession the Statute Law the Canon Law the Common Law that whole body that hath ruled all actions and possessions here Thinking such a part may be changed another spared The great Charter was well thought on in some things The Petition of Right was part as it should K. Edwards old aged and reverenced Laws that had so many requests made for them so many bloudy battails fought about them and were wrested by the people into the Coronation Oath may now be advised of I see a way not spyed by any since Christianity came hither and yet they had the voice of the Spirit in the Word of the Gospel of Civil Justice and Righteousness I will make Laws change Ordinances reverse Rights new-mould properties and dominions c. though all that is be troubled c. and the Petition for every mans right shall not hinder What arrogance is this What intolerable presumption Does it become a private man a single man a simple man Any man Were not obedience better then this sacrifice To be ruled by the Law better then thus to quarrell about it Say but this one thing Every man shall have his own and I have obtained my end and wish all unsaid hath to thy offence or otherwise not tended hereto Say but Right shall be done as is desired Soit droit fait come est desire as the King I will not be wiser then the Law but follow it I will not judge the Rule but be ruled by it 't is the blessed Ordinance of God whereto I ought conform and must and will ingenuously and fully the whole and every part and then we are met and friends Especially the Petition of Right let no one be defrauded of his part of that No One and then be the issue that God will give CHAP. XXVIII ANd now it may be time to look forward but first a glance or two backward that we may not lose our selves to see the way we have already gone I hope it is either made evident or at least much hath been said for it that Tythes are Civilly Politically due They are so for they have been given they are so because that gift hath been confirmed comfirmed by the common Law in its Cradle confirmed with the confirmation of King Edwards Law confirmed by the Church Law of Authority sufficient and now lastly by the glances of the State But by-blowes I confesse these last yet as they have been set on I hope reaching home till of late some were direct in Henry 8. and Edward 6. time yet of force and so is also the Petition of Right it being taken they were before a Right Descend we now from publicke to private and see what the Sages have said who are either Law or after next to Law The Romans had their Responsa Prudentum taken into the Digests which although they were at first but the issue of private thinkings given by single men upon occasion in decision yet with time they got credit and being found usefull and meetly well agreeable with reason the great Standard even of Rules They were at last taken into the Rule and urged as the twelve Tables or the Senatusconsulta of original and ruling Authority for themselves So and by the same degrees have some mens credits and savings been advanced with us whose ipse dixit is next to Oracle and their private voice so highly advanced as to be for Authority and Rule next to the Publick of the Kingdom We shall not be long nor curious in this search for still the Publick speaks lowder to Credit then any Private and why should we care much for Silver when we had plenty of Gold before or look after even the Judges when their Masters stood ready yea the Rule of the Judges Masters in publick Agreements subservient to justifie our Assertion and undertaking And Lord chief Justice Cook is here first for we will now take leave to proceed ordine retrogrado according to licence reserved He is now become almost a good Authour but because his opinion and practise are both in fresh memory with many both as to Pleading Councel and Judgement the less would therefore be said of him because known In 2. of his Instit alone he so comments on four ancient Statutes sc 1 pa. 489 490. Circumspectè agatis 2 pa 610 611 612 619. Articuli Cleri 3 pag. 619 c. the 18 Ed. 3. 7. touching the Scire facias from the Chancery and that 4 pag. 648 c. of 2 Edw. 6. 13. that none that knows the occasion can well forecast any doubt of the event none that considers the Text can much doubt of his Comments unless he will make so cross and absurd interpretation of his likely meaning as that he chose his Theme to go against the Suppositum or meant to darken and contradict what was taken in hand to expound and illustrate such were Commenta indeed rather then Commentaries strange inventions but He raised his Doctrine according to his Text and prosecuted it punctually as he had raised it Let them heed him well who alleadge him frequently accounting him Authority in one part as well as another or else the World will account them I know what Partial I mean That All and that 's true enough That they do but in stead of representing his sense fully as they finde it pervert it picking a Posie perhaps of the sowrest flowers and leaving out what is not to their advantage or to their disadvantage insinuate that is not which perhaps they would not have Sure he thought spake wrote and judged that Tythes are civilly due when he shunned not to declare they were every where due 1 Report 2. fol. 49 6. in the Arch-Bishop of Cant. Câ—se avouched by a London Minister in his late answer to a Doâ—bt about the aâ—ienation of Tythes p. 17 And in the same Report fol. 45 in the Arch Bishop of Winch. Case