in the 1 In Biblioth Bodl. Oxon. S. 1. 8. Iur. Ms. before mentioned and set before the statute De Anno Bissextili which being referred to 21 Hen. 3. I think may well be placed hereabouts the 2 Pulton pa. 109. print has it of uncertain time and 3 Instir 2. pa. 600. Sir Edw. Cook as about the beginning of Edw. 1. I believe it to be that with Articuli Cleri Circumspectè agatis c. referred to in the end of the statute of 2 Edw. 6. 13. though 1 Ib. Pa. 663. others point it to Probibitio formata super Articulis Cleri Well Howsoever Incipit Regia Probibitio Sub qua forma impetrant layci Prohibitionem in genere super decimis oblationibus obventionibus Mortuariis c. Respondit Dominus Rex ad istos articulos quod in decimis oblationibus obventionibus c. quando agitur ut praedictum est prohibitioni non est locus None to be granted in case of Tythes Oblations Obventions c. and then is my drift secure 'T is known what would be the issue of other proceedings Indeed it follows If by sale the things change nature becoming temporal or the quantity may justly occasion an Indicavit then c. But in the ordinary course none In 2 18 Edw. Puiton pa. 70. Edw. 1. time we have the noted Statute of Circumspectè agatis made it seems to restrain and keep within due banks some powers granted a little before to the secular Judges to curb in his Jurisdiction the Bishop of Norwich whose 3 Put but for an example The thing extendeth to all the Bishops of the Realm Co. Inst 2. pa 487 name yet might be but as A. B. an Individuum vagum appliable to all who had their due liberty in danger of being fettered and indeed to them 4 Rex enim misit certos Iusticiarios suos ad procedendum sub certa forma contra Episcopum Norwicensem alios de cleâ—o sibi adhaerentes quibus postea Rex scripsit ut hic habetur Gloss Norwicensem Lyndeâ— wood de forâ— compet 1. Circumspectè severally it was directed The King therein to his Judges sendeth thus greeting Deal circumspectly in all matters concerning the Bishop of Norwich and his Clergie not punishing them if they hold plea in Court-Christian of such things as be meerly spiritual that is to wit of penance c. Item If a Parson demand of his Parishioners oblations or tythes due and accustomed or if any Parson do sue against another Parson for tythes greater or smaller so that the fourth part of the value of the Benefice be not demanded This is so plain nothing can be more though the secular Judge might send his hook to fetch causes to his Court in some doubtfull cases yet for things meerly spirituall or for tythes by name This Law sayth He may not Which for better preservation 5 Ibid. Lindewood has also in the Churches behalf taken into his Provincials In the same Edw. 1. time was granted the Statute of Consultation It hath not I confess express mention of tythes by name but the Jurisdiction and that enough allowed for it being granted which cannot be denyed from other assurances both that tythes were due and This would bring them in in the grant hereof intire is enough the rest will follow It seems some there were would then obtain a Prohibition to stop the wheels should properly move to Justice in this case and when the business came to the Lay Judge go no farther So the Plaintiffe was delayed yea denyed right and almost wrong for he could have no sentence any way for remedy whereof it was ordered That 1 24 Edw. 1. Anno Dom 1296 id pa. 75. Whereas Ecclesiastical Judges had often surceased c. by vertue of Prohibition whereupon nothing done in either Court Our Lord the King willeth and commandeth that where so the Chancellour or Chief Justice upon sight of the Libel upon instance of the Plaintiffe if they can see that the case cannot be redressed by any Writ out of the Chancery but that the Spiritual Court ought to determine the matters shall write to the Ecclesiastical Judges before whom the cause was first moved that they proceed therein notwithstanding the Kings Prohibition Plain that in some cases 2 And this is the very reason why the 12 Chap. of 32 Hen. 8. was made law because Lay men that had use of all other Coâ—rts yet could not come at their dâ—â— tythes now settled upon them by any of those Coâ—rts which made it necessary they should be inabled to sue in the Court Christian where onely these dâ—es were tryed and that was thâ— thing thâ—â—e done and the new indulâ—encâ— there granted Them as appeareth by the Preface the other Courts could afford no Justice and therefore of necessity must be a remission hither so appropriate was the remedy and indeed cognizance and rule of Justice to this Court that all the rest could not so much as hear and that righteousness might not fail from the Earth hither loyall subjects must onely come for it To some time of the same Kings Reign is yet farther ascribed 3 Palton pa. 91. this grant that Where 4 Ib cap. 1. No Tallage or aid shal be levied withon consent of Parliament Nor 5 Ib. ca. 2. any thing purvayed to the Kings use without the owners consent There We will and grant for us and our heirs that all Clerks and Lay-men of our Realm shall have their Laws Liberties and free Custo nes as largely and wholly as they have used to have the same at any time when they had them best And if any Statutes have been made by us or our Ancestors or any Custo nes brought in contrary to them or any manner Article contained in this present Charter We will and grant that such manner of Statutes and Customs shal be void and frustrate forevermore With 6 Ib. cault order to have it read every year twice in every Cathedrall and a curse upon the breakers I infer If 1. All Laws Liberties and Customes were here granted 2. To Clerks as well as Lay-men 3. Of the largest size or use 4. In despite of any Law to the contrary Then 1. here be tythes which were then due by Law 2. the Jurisdiction of them a Liberty which would bring them in 3. And so they were both due and must be paid taking in consideration of the Then state of things by vertue of the Law and by vertue of this Law for that herein were granted all Laws and Liberties Remove to Edw. 2. and there we finde those are styled 1 9 Edw. 2. id pa 98. Articuli Cleri and so not like to afford nothing but Englished Articles 2 In the old edition of 1543. for the Clergy and so like to afford something for them The first thus proposes and resolves Whereas Lay-men doe purchase Prohibitions generally
the tenth part of the profits of the Kingdom There is much both law and Constancy in those set forms 't is very hard to suggest or foist in any errour to those known inviolable pieces to 2 Stat. of West 2. c. 1 4 35 41 13. Edw. 1. Stat. of Merchants c. 1. Stat. of Quo warranto 30. Edw. 1 raise or alter a Writ requires and has had the legislative power of the Kingdom Of the like certainty use evidence and inviolable firm constancy and immutability was no doubt the way of transacting things here If we light upon truth anywhere we may hope for it in those lines which have been so often handled and reviewed and which have themselves handled and disposed of so much of every mans estate as in the whole amounts to that part which is the tenth of every thing Some of many would have found the fault if there had been any nor could the iniquity have remained unespyed in that most men had their eye upon and suffered by whereas none did Here Therefore it is very likely to have been good and Right which All as Such have looked upon and None been able to espy therein Errour or falsity Thus to the Cause have we subjoyned the Effect To the Law before interpreted now the use and fruit in disposition of mens estates Their wealth that dearly beloved of their souls with much patience being suffered to be transposed and change masters by its power And sentences were to this purpose as usuall as tryals According whereto followed no doubt execution who knows any thing knows this by daily everywhere experience and as before we might not suppose forms of practised law erroneous and deceitfull So here that they should being such have found so ready and universall obedience or that a wrongfull sentence should have intruded to take place especially sith to generall prejudice Draining mens purses of much of every thing and they the whole world so fast asleep that no suspicion was stirred up of the legerdemain Nor so much as any outcry heard of so spreading and universall wrongfull incroachment Surely no There was no such thing but a Just sentence upon due proceeding Both cause and effect Rule and Order Law and execution were according to Right and as in any other the Kings Courts these temporal-spiritual things were orderly and legally disposed of and setled Here by that law which ordereth disposeth setleth and even Giveth all things Upon all which would follow also one thing more That if all these things be Thus Not Colours but of substanceand reality If such law have so passed and ought to be obeyed and has And to part with be now by vertue thereof Not to Give but Pay Debitum Justitiae and of Right Ought to the service of God not Debitum Charitatis a bequest of love and good Will Hereby is way made not onely of bringing home these Dues safe and sure to their Right owners the Just Claimers but also of bringing home further all those forceable exhortations to the payment of them in Gospel-dayes to Gods service even under those Strong reasons which were heretofore used by the Prophets and wise good men under the Temple Law And with us may be said Give and Pay these due Debenturs to the Christian service as wel and upon the same grounds as they heretofore used by which they were then urged to be paid For they required them but as Due Due to God sc for his service Due by their Law Sacred in their Polity and which Immediately came from God Now although we do not so plead them as strictly here due by any divine Law among us given on the Mount or written with the finger of Gods hand yet they are by that Law and Sacred too and apportioning them to God that is his service too which as before giving them is ratified and confirmed as all Just powers and Laws are by him that dwelleth on the Mount who approves and sets to his seal to be Just and Good whatsoever Orders Ordinances Laws or devices his people as so many additionary explicatory or By-laws for the good peace and order of the place where they live not crossing the Common shall make for establishing and perpetuating his honour by means of their own created Justice and so a kinde of Divine and certain though Mediate and consequentiall way of confirmation they have from the powers above still At least ground enough to say in the sense of heretofore 1 Ecclus. 35. 10. Give the Lord his Due with a good eye and Consecrate thy tythes with gladness Give yea Pay unto the most High according as he hath inriched thee and as thou hast gotten give with a good eye that Law which is in a sense his Sacred law hath commanded it For 2 Levit. 27. 30. All the tythe of the Land of the seed of the land or the fruit of the tree is the LORDS Now Holy to the LORD And concerning the tythe of the Heard or of the flock whatsoever passeth under the Rod it is now holy to the Lord likewise Therefore 3 Deut. 14 22. thou shalt truly tythe all the increase of thy seed that the field bringeth forth year by year and 4 Mal. 3. 8. Bring All into the storehouse and try whether the Windows of heaven shall not be opened for recompence My Tythe into my Storehouse for 5 Num. 18. 20. Behold they are given If not I have given I have ratified their gifts who have given them to the Levites of the New-Testament for the services they serve in this tabernacle of the Christian Congregation Moses said Exod. 22. Decimas primitias non tardabis offerre Domino as in the Old Latin And King Alfred says Thine Tything-scot c. give thou to God in his translation and imposition of that law upon us which our just government and by consequent Our God approveth K. Ethelbert said K. Offa said K. Ethelwlph K. Edmund K. Edward said so both the elder and younger on this and that side the Norman turn beside other and it hath been digested received approved obeyed practised by in our 6 Leges Sacratissimae quae constringunt homjnum vitas intelligi ab omnibus debent Cod. de leg l. 9. Sacred Common-law if I may so speak that they Must and ought And so We as They require Them in the words of Scripture the same words as They and to the same generall end upon the same ground of a kinde of English Sacred-Law Pardon that Epithete and admit a Justification As such I look upon and May call all those which being Civill and Common as Sanctions even with us have a touch as it were and Derivation from God and so All Sanctity or Sacredness cannot simply be abstracted from them As the Wise and in his memory so much reverenced Chancellor Fortescue averred and justified to our young Edw. 4. King Henry the sixth his Son in his
sealed and proclaimed deeds and Laws that our State has or the Lawyers themselves know where to seek for The beginning thereof is this Edward by the Grace of God King of England c. We have seen the Charter of the Lord Henry sometime K. of England our Father of the Liberties of England in these words Henry c. which we confirm Chap. 1. First we have granted to God and by our present Charter have confirmed for us and our heires for ever that the Church of England shall be frée and shall have all her whole Rights and Liberties inviolable We have granted also and given to all the Frée-men of our Realme for us and our heirs for ever these Liberties c. This is a little more emphaticall in the Latine which for the better countenancing both of the testimony and the thing I choose to represent from a fair Manuscript in the publick 1 S 1. 8. Iur. Library of Oxford where thus Imprimis concessimus Deo hac praesenti Carta confirmavimus pro nobis haeredibus nostris imperpetuum quòd Ecclesiae Anglicana liberae sit habeat 2 That is That all Ecclesiasticall persons shall enjoy all their lawfull Iurisdictions and other their rights wholly without any diminution or subtraction whatsoever Cook Instit 2 pa 3. Jura sua integra libâ—rtates suas illaesas Concessimus etiam omnibus liberis hominibus c. This is that Charter in the ninth Chapter whereof is confirmed the Charter of the City of London in the fourteenth That none shall be amerced unreasonably but salvo contenemento as he may be able to bear in the twenty ninth That no man shall be outed of his Frée-hold but by course of Law so much stood upon formerly lately and justly and ever to be stood upon Every line whereof might have been written with some of the subjects bloud it cost and in answerable price of worth containeth some piece or other of a firm wall to keep out Invasion and hindering will and power gotten strong from entring upon and trampling downe the peoples Libertie Wherein note two things granted to the Church sc That she should have all her 1. Rights 2. Liberties Those Rights Intire Those Liberties Inviolable What were first her Rights 3 The Councel of Aenham had flyled them before Deo debita Iura cap. 1. in Spelm. Concil pag. 517. and K Knout likewise in his Laws cap. 8. in Lambard Archai pa. 101. And before either K. Alfreds League with the Danes Dei Rectitudines Spelm. pa. 377. The whole face and condition of things represents it self such that if any thing were These were now Rights Tythes no question Even then generally due and universally paid and so for a long time had been There needed no more then or the Ages before but to prove the land in the Parish of Dale and the Tythes were cast upon the Church of Dale without any Evasion And this so true and known that there is none from the information before or other acquaintance with the state of things as they were truly informed but must grant as much as I say without haesitation And these rights were also granted Intire Next what were her Liberties A volumne were here little enough and I had once thought of laying together Many But to our present purpose let a few Acts of Parliament expound what one priviledge at least was In 18 Edw. 3. there is a statute for 4 Pulton p. 143 the Clergy and it was granted in regard of a Triennial disme given that Martiall Prince to further him in his Wars for France In the sixth Chapter whereof is mention of some Justicers appointed to the impeachment of Ecclesiasticall Jurisdiction of 1 The knowledge of all causes testamentary causes of matrimony and divorces rights of Tythes Oblations and obventions by the goodness of Princes of this Realm and by the Laws and Customes of the same appertaineth to the Spiritual Iurisdiction of this Realm c. Statut 24 Hen. 8. â—2 Tythes among other things why may we not well understand and is against the Franchise this Statute says of the Charter Let the words speak their own sense Item Whereas Commissions be newly made to divers Justices that they shall make inquiries upon Judges of holy Church whether they have made just processe or excessive in causes testamentarie and other causes decimall as notoriouslie doe belong hither as testamentarie a hundred proofs are for it which yet notoriouslie pertaineth to the cognizance of holy Church the said Justices have inquired and caused to bee indicted Judges of holy Church in blemishing of the Franchise of holy Church that such Commission be repealed c. See here what Franchise is in part sc to have Ecclesiastical Jurisdiction free proved by that to disturb it is a breach or blemish of the Franchise Next take another gloss in the plain text of 1 Rich. 13. where 2 Id. pa. 200. The Prelates and Clergy of this Realm do greatly complain them for that the people of holy Church pursuing 3 That this apprehension may not seem a mistake this very Chapter I finde alledged heretofore to prove that the proper scene of trial of tythes is the Ecclesiastical Court by M. Fulbeâ—k in his parallel par 2. Dial. 1. sol 6. in the Spirituall Court for their Tythes there is the Jurisdiction and this particular asserted and their other things which of right ought there 's more then possession Due and of old times were wont to pertain to the same Spiritual Court there 's continuance of time or prescription and that the Judges of holy Church having cognizance in such causes other persons thereof medling according to the Law be maliciouslie and unduly for this cause indicted imprisoned and by secular power horriblie oppressed c. against the Liberties and Franchises of holie Church Wherefore it is assented that all such Obligations shall be of no value c. Here another statute interprets what Liberty and Franchise is by that the clogging of Ecclesiasticall Jurisdiction in this matter of Tythes was a breach of that Franchise and so after when the Cistertians endeavoured to exempt their Formours Lands as well as their own from paying Tythes that due power could not fetch them in this was again against the Franchise as 4 Alledged hereafter complained in Parliament 2 Hen. 4. 4. And lastly a 5 The Annals of Burton cited by M Selden of Tythes cha 14. pa. 419. National Councel represented as one of their grievances at London 21 Hen. 3. The over-lavish use of the Indicavit whereby the Kings Judges would first determine what tythes were due to what Church and this was in Regno Angliae in praejudicium libertatis Ecclesiasticae Which things may together shew fully enough what the breach of Franchise was and by consequent what the Franchise it self by the best which is publick interpretation Whence also likeliest this was the meaning of the Grant That
upon tythes obventions oblations mortuaries c. The King doth answer that in tythes oblations obventions and mortuaries when they are propounded under these names the Kings Prohibition shal hold no place although for the long withholding the same the monie may be estèemed at a sum certain But if a Clerk sell his tythes gathered into his barn for monie c. then otherwise And if the Kings Prohibition should not lay any impediment but things must be tried by the Canons we know and are assured whether tended and what that meant But more particularly here observe 1. That the power which is known would give them in is here without dislike mentioned 2. Plainly allowed 3. As to tythes by name 4. Strengthened By this that as in Circumspectè agatis no disturbance should be offered by the secular Judge impeading to proceed in their own way 5. And all this by Parliament Sending the trial where beforehand it was known how the business would go And then as if the supream power send a criminall offendor to the Bar of Criminals knowing how the case will there go looking on permitting and acquiescing in the sentence there to follow upon that sending They more then seem to confirm and allow whatever prove the issue such interpretation may reasonably be made here of the remission of these cases and the temporal power could not but be thought to own the event and what was done whether themselves sent for trial The provisions were as strict as well they could to hinder extravagancy for as treading in the steps of the Regia Prohibitio before if once the thing were never so little converted to seem temporal Away with it presently Grant it no longer protection here but allow suit for it wheresoever But if it remained spirituale vel spirituali annexum it self As reason would and the nature of the thing required the King says the Law says the Parliament says and all let the Church have her due If it be to try these things and bring them home to her own house let no envious incroachment grudge her right no not though by continuance of time the things have run so long as they may seem to have degenerated into a Lay-commodity Chap. 2. Also if debate arise upon the right of Patronage and the Quantitie of the tythes do come unto the fourth part of the goods of the Church the Kings Prohibition shall hold place if that cause come before a Judge Spiritual Insinuating and the practise hath been accordingly that if less then a fourth part or the Patron of both the same for so it was it must be tried as before And so chap. 5. where no Prohibition is to be had as in the title if tythe be demanded of a new Mill And the text Also if any do erect in his ground a mill of new and after the Parson of the same place demandeth tythe for the same the Kings Prohibition doth issue c. the Answer In such case the Kings Writ of Prohibition was never yet granted by the Kings consent nor never shall which hath decreed that it shall not hereafter lie in such cases And then let the Parson alone His strength is those Canons will do execution enough De proventibus auteÌ„ MolendinoruÌ„ volumus quod decimae fideliter integre solvantur had 1 Constit provincial tit de decimis cap. Quon aÌ„ propter Also Decima c. Molend noâ—um Venationum Negotiarionum c. tit eod cap. Sancta Ecclesia De prato de aquâ—s molendinis L. Edovardi Confess cap. 8. cited before De molendinis piscari s â—oenis Constiâ—ut cujusdam Episcopi about Hen. 3. time alledged by M. Selden pa. 231. Dâ— proventibus Molendinorum piscariarum foeno c. Decret Gregor tit de decimis ca. pervenit Of those forced by windes as well as water Mandamus quatenus H. Militem ad solutionem decimarum de hâ—s quae de molendino ad ventum proven unt sine diminutiore aliqua compeliatis tit eâ—d cap. 23. Ex transmissa And as of Mercha dise or praedialâ— without diminâ—tion of expence tit eod cap. 28 Pastoralis officii Rob. Winchelsee said before then in force Integrè that is without diminution the tenth dish not the tenth penny saith 1 Sc. sine diminutione sic ut solvatur decima proventuum verè sicut proventus accidunt viz. decima mensuâ—a quorumcunque granorum molitorum ad commodum domini molendini vel molendinarti pertincntium sic non sufficit solvere decimam pâ—out Molendinum transit ad firmam quoniam in firma de verisimili non est verus valor cum firmarius ultra firmam aliquid speret lucrari Gloss Integrè cap. Qâ—ioniam propter Lindewood And mâ—morand these Articuli Clori and Circumspectè agatis and some other had a clause to keep them inviolable by the late Parliament determination of 2 Edw. 6. 13. in the end Follows next Edw. 3. and here we have more In every K. Raign almost somewhat if but for recognition and to shew that that peece agreed with the whole As first There had been over-lookers as before of the Jurisdiction Christian who disturbed and discouraged but they did but over-look and hinder not absolutely take away the thing remained and hence proved Also some that pulled away a branch or bough rather from the tree hindering by Scire facias from the Chancery the triall of Dismes from its proper Court The King in the Statute for the Clergy before mentioned gives remedy for both in the two last Chapters of that Act. Chap. 18 Edw. 3. 6. Item Whereas Commissions be newly made to divers Justices that they shall make inquiry upon Judges of holy Church c. But the whole was transcribed before whereto I therefore remit Mark chiefly that clause that Causes testamentarie and others did notoriouslie belong to the Cognizance of Holy Church and the King said so Not Rob. Winchelsee or Jo. Stratforth or any of the past or then present Church-Ministers who did no more then they had power but the King Nor did they incroach saith He It was rather Then an incroachment upon them to interpose and trouble the orderly motion of their wheels tending to a just administration of things and giving every man his due in a way allowed by all the power that then was above and publick Chap. 7. Item Whereas Writs of Scire facias have béen granted to warn Prelates religious and other Clerks to answer Dismes in our Chancery and to shew if they have any thing or can any thing say wherefore such Dismes ought not to be restored to the said Demandants and to answer as well to us as to the parties of such Dismes that such Writs from henceforth be not granted and that the parties be dismissed from the secular Judges of such manner of pleas Saving to us our right such as we our ancestors have had and were wont to have of reason God forbid else
alledged by Spelm. de non â—emerandis Eccles Sect. 16. Jure divino To omit his own References to his Reports Be Sir Thomas Smith next a Doctour of both Laws and a principal Statesman His Description of Englands Republick passes with good credit in the last Chapter whereof he describes the Court Christian acknowledges its jurisdiction sends matter of Tythes thither as a part of the Work and if once he had them there he knew being not onely 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 what even to Mint and Cummin would become of them The Authour of the Dialogue between the Doctour and Student is 2 By Dr Cowell in his Interpret in the word Doctoâ—r said to have been Mr. St German It was wrote in Henry 8. days not toward the end and for the solidity and depth of it may passe for one of the very excellent and singularly jndicious pieces of that most excellent Learning Now He admits Tythes as consequentially due upon that account of 3 Dial. 1. cha 2. so 11. And in the new additions to that Book printed 1531. He tells us In the Kings Bench Common pâ—ace they will suffer no issue to be joyned specially betwixt person and person whereby he Right of the Tythes may be tried howbeit that in the Exchequer sometimes they have done otherwise Addit 5 fol. 14. Ecclesiastical Jurisdiction and this reducibe to the second ground of Law received here which is the Law of God and though the Student cannot afterwards well away with the Doctours Jure divino yet by Ours Positive and here he makes no question For by the Law of Reason one of the Grounds he had made of the Law of England before he would have somewhat for the Labourer is worthy of his hire and then by the Law of the Church This I question not how reasonably but thus 't was settled and the Constitution prevailed And he gives reason for all For 4 Dial. 2. chap. 55. fol. 165. there is no cause he sayes why the People of the new Law ought to pay lesse to the Ministers of the new Law then the People of the old Testament gave to the Ministers of the old Testament for the People of the new Law be bound to greater things then the People of the old Law were as it appeareth Matth. 5 20. And the sacrifice of the old Law is not so honourable as the sacrifice of the new Law is for the sacrifice of the old Law was onely the figure and the sacrifice of the new Law is the thing that was figured That was the shadow this is the truth And therefore the Church upon that reasonable consideration ordained that the tenth part should be paid for the sustenance of the Ministers in the new Law as it was for the sustenance of the Ministers in the old Law So howsoever it is a Due and he is there discussing the equity of the Statute of Sylva caedua which although he defend yet no more and in that enough as before was said speaking of it For if there were Assertion that a Prohibition should take place in that particular Case there was implication in others it should not a by-confirmation here and there and in neither can be doubt of what I desire Ascend at next step up as high as Fleta and Bracton for we are now among particular fallible men the Credit of whose Vote is not to be compared with the Publick and therefore we hasten accordingly yet so as we know what sway these bear in Judicature and that they over-rule the very Rulers and Judges Ego verò illos veneror tantis nominibus semper assurgo as I believe after Sir Edward Cook most of the chief Justices have been ready to say and I do unfeinedly Let Fleta be first and He 1 Lib. 2. ca. 60. Sect 27 c. p. 1 31. speaking of Contracts and Obligations by them and an Action of Debt justly grounded upon both gives the Tryall of Tythes in that Court will surely give Them Ex hujusmodi autem obligationibus promissionibus stipulationibus oritur in curia Regis quaedam actio quae dicitur Placitum ex debito eo quod spectat ad Coronam Regis saith he But except Nisi sint debita à testamento vel matrimonio suborta quae quidem in foro Ecclesiastico habent terminari sicuti omnia quae merè sunt spiritualia as Penance for sin though pecuniary So for Church Reparations c. 29. Item si Persona that is that living Man who as one seen and known stands forth and acts for the Church which is alwayes in it self a dead Corporation a Suppositum or Non ens without any real subsistence and must therefore have a seen known living Executour whose name may be used and being cloathed with Circumstances under being and existence In that name and under that Personality may do sundry things which otherwise conveniently could not As give or take gain or lose do or suffer the Churches Man we may stile him Rector is another thing 2 Laicus igitur praesentat ad Ecclesiam vacantem ut praesentatas Ecclesiam Regat Episcopus eam dat sc praesentatum admiâ—tit ad Regimen instâ—tuit Bracton l. 2. c. 23. f. 53. implying duty and grounded upon supposition of Power Now if that Person or Churches Man petat à Parochianis suis debitas decimas consuetas in the very words of the Statute of Circumspectè agatis vel si Rector agat contra Rectorem de decimis majoribuâ— vel minoribus dummodo non petatur quarta pars valoris alicujus Ecclesiae vel decimarum for then if also the Churches be of severall Patronage not otherwise the Indicavit takes place and the Right of Tythes must be tried in that of the Advouson between the Patrons whose Lay interesse is in question And of these all Sect. 32. Haec autem praecipuè in foro Ecclesiastico habent terminari non obstante Regia prohibitione It seems the nature of them was such that if they were drawn aside they could not rest there but must return to their proper chanell and with other things of the same nature have properly and together their discussion and determination in the Court of Religion And remember this all along That as the Philosopher sayes that which gives the Cause sufficient gives the Effect That which gives the means to compasse such an end may be interpreted to allow and give virtually that end will be so wrought in and brought about by those means Even so mediately that which gives the Jurisdiction gives the work and effect thereof That which gives the Triall gives that which will come of the Triall be it what it will virtually and in the sufficient and necessarily producing Cause Which is also of use in that which follows from the same Fleta in his Citation of the Statute of Westm 2. cap. 5. Where approving the Clause before of the
property and Umpires of strife authorized sufficiently so to do and to give me any thing that they do give me and what is so done or given is lawfully and if any thing be so setled upon me it is questionless 1 And of such a Law of Maâ— that is consonant to the Law of God it appeareth who hath Right to lands and goods and who not for whatsoever a man hath by such â—aws of man he hath righteously And whatsoever is had against such laws is unrighteously had Dr. Stud. Dial. cod cap. 4. fol. 8. mine And as by these so generally by writing or custome by statute or canon whatsoever in the true judgment of Courts and common reception of those that are not mistaken is Law That is the same pillar of property assertour of Rights foundation of dominion strength of title and giver maintainer preserver defender assurer and protector of a man in that he so has as an oracle it tels him truly what is his as more then a Prince he gives it him and makes it wrong injury fraud theft usurpation injustice and these things only possible this way if it be taken away from him And for this purpose all these are equally and alike sufficiently operative In every Law positive well made is something of the Law of Reason and of the Law of God Id. fol. 7. There is no choice for where all are the same and have the like cause of power one must needs be as good as another All our law is in some sort derivatively mediately at second hand the voice of God approving all just pactions and humane positive lawes and so his stamp is upon every part and he that resisteth in any resisteth the Ordinance of God Neither have we any other These are the alone limitations banks and boundaries that hedge in and hedge out giving certain admeasurement as the law-word is in some case of properties to so very many as there be among us making us know our home and giving our home which none but they can do in this various world For the Divine Law immediatly is of no force the severing by Tribes or cutting by Joshuah's thread served but once unless for example and so I beleeve much use hath been made of it here more then we are aware of or do readily understand our 2 Aluredus Rex who as all grant made our politicall division ubi cum Guthruno Dacofoedus inierat prudentissimum illud olim à letrone Moysi datsi secutus consilium Angliam primus in Satrapias Centurias Decurias partitus est Satrapiam scyre à â—scyran quod partiri significat Lominavit Centuriam hunðreð Decuriam teoþung sive tienmantale id est Decemvirale Colleg uÌ„ appellavit atque eisdem nominibus vel hodie vocitantur Hence our Tythingmen c. And a little after Decrevit tum poâ—ro Aluredus liberae ut condition is quasque in Centuriam ascriberetur aliquam utque in Decemvirale aliquod conjiceretur Collegium De minoribus negotiis Decuriones ut judicarent ac si qua res esset dissicilior ad Ceuturiam deferrent like the steps of Appeal Exod 18. 210. Deut. 1. 6 17. Disficillimas denique maximi momenti lites Senator praepositus in frequenti illo ex omni Satrapia conventu componerent Gloss ad Lambard Archaion pag. 217. in vocab Centuria Approved by Dr. Cowell in his Interpreter in vocab Hundred And compare farther Ioseph Antiq. l. 3. c. 3. and 2 Chron. 25. 5. Some glimpse hereof appeared to the publishar of Sir H. Spelmans late larger work of Tythes pag. 41. Shires Hundreds Tithings c. Coming I verily beleeve at first from the patern of Judah Levi Simeon and Benjamin by exemplification If any man should attempt it he might be partial if none the thing not done so that supposing a partition needful and some to doe it and no revelation from heaven save in paterne or general rules we can lay hold of no other umpire or Judge like to be fit to do it then that voice of wisedome implying all mens consents which is in the Law the gracious goodness of God assisting the grave wisdom of man yea inabling and authorising it to set bounds hereby to our appetites master our unreasonable proud headstrong desires giving lust a law covetousness a law the hand a law nay the eye a law that it may not so much hereafter as greedily covet what is anothers This is that which bindes the Bear and shackles the wolf lays fetters upon our wilde and forrest desires that else would make us very apt to hearken to temptation to be preying one upon another But this restraines our fury and locks up the Lion in the grate bidding yea forcing all to goe home and be content with their own Sorte tua contentus abi and cast not a fruitless sinful greedy glance upon the inclosure of thy neighbour To give instance in some particulars From this law thus received amongst us it is that I am to succeed in my fathers fee I have right to succeed I may claim my right and I have wrong if I be kept out of my due lawful inheritance For our Law hath divided much land into such tenures upon reasons of profound wisdom not discernable to every comon apprehension that hath willed I should succeed my father if his heir I am his heir nay though a daughter and therefore I must and ought to succeed It is not so in 1 As in the Ottoman Empire where the Timars are much the same with our military Benefices obliging estates for life upon death the State disposes as of our Ecclesiasticall Benefices that falling not by inheritance there may be still choice of fitting men vide Knoll Turk Hist in his Appendix of the Turkish kingdom fol Aaaaaa and that learned and judicious observer Sir Henry Blount has also the same who was lately among them p. 65 66 and before them Mr Selden in his Titles of Honor par 2. c. 12. So 't is also in the Gâ—eat Mogols State lately erected and supported by them vide Pvrch. Pilgrim l 5. Append. ad c. 6. p. 543 544 545. Edit 1614. And Scanderbeg used the same policy also in Epirus Now all this might have been well enough here for the same thing hath continued and is yet well enough in the Ecclesiasticall State nor wrong thought by the ruling Constitution if when the man dye the widow and children are presently strangers Nay even in some nearer parts of Christendom as to secular succession too for the Glosse on the Feudall Law speaking of the old way for life onely Et hoc adhuc obtinet secundum rigorem consuetudinis in feudo Marchis Ducatus Comitatus vel alterius regalu dignitatis ab Imperatore datae quoniam illud foudum finitur câ—m persona acctpientu quia hares in eo non succedit nisi ab Imperatore investiatur Gloss ad vitam ad seud l 1. tit
change their English mindes in a contrary way to the new-instructed 1 Acts 28. 6. Islanders of Melita settling for truth and no longer for errour Father forgive them I doubt they have not yet known what they doe Hence ceasing their clamour against their neighbours as those would have no wrong done to themselves and accounting it a most unreasonable partiality not to be owned by those that are in any degree among the lowest sort of Honest men to pick out that which is for their 2 These be those excellent Laws contained in this great Charter and digested into 38 Chapters which tend to the honour of God the safety of the Kings conscience the advancement of the Church and amendment of the Kingdome granted and allowed to All the subjects of the Realm Co. Inst 2. pa. 1. turn in a publick evidence and throw away the rest or make that they have got of power to disanul it Mr. Petitioner whosoever thou be I name None but mean All and in love and friendliness bespeak petition Thee A. B. C. D. E. F. G. H. or whosoever thou be that lovest the Charter the Petition of Right or Right it self hearken And if thou be a Christian and English man be perswaded hereafter to proceed upon more equall terms and from a better information of judgement cease to pervert the right words of the Law Whatever thou hast done heretofore in the days of thine ignorance now taking no other course but what is justifiable by the rules of common Honesty Could I but hear you once resolve that every man should have his Own and Law should be the rule of that your own chosen Instruments should be the evidences and not any just mans plea shut out of the Court be it what or of or for whomsoever I would not then doubt to have gained of your honesty and simplicity a strong patronage of that righteous cause now in ignorance and by mistake ye go about to suppress and that ye would appear valiant yea suffering Champions for that equity and right ye now seem resolved to take pains if not to suffer rather then permit any longer those that have right to enjoy Let but a love to truth and constancy to your own principles be with you and I have enough I petition I ask no more Nor do I altogether despair As great changes have been in the world and faces about from West to East quite contrary to what was once persecuted or prosecuted in ignorance The two Theeves shamed not to confess the truth at last I equall you not in injustice or meaning wrong but God grant you and I may equal them both in Turning from out our evil ways passing from death to life repenting our hidden sins and converting from darkness to light from the power of Satan unto God Martha loved much after who before had done that needed much forgiveness Matthew the cheating Publican turned upon admonition a Disciple and Apostle And is not Saul among the Prophets Paul among the Preachers Good men and true Remember chiefly that last example Wonder but Believe it was even so Inquisitour Saul is turned a zealous Professour and he that was a busie Persecutor now as active an Evangelist and Professour When Christ who is the true light shined to his soul with awfull beams he fell down and recanted and repented his 1 I verily Thought this with myself that I Ought to do many things contrary to the Name of Iesus of Nazareth which I also did at Hierusalem c. Acts 26 9 zealous ignorance and though he had received Commission Acts 9. 2. from the highest then of Priests and Powers yet God caused him to revoke all and we have 2 Gal. 1 23. heard say as the Jews of him truly that He which once persecuted in times past now preacheth the faith which once he destroyed for which men glorified God in him Why should the like be despaired of you of whom I must go against mine own both hope and full perswasion if I should say otherwise then that I believe ye have profited thus far That ye love the truth Ye mean well ye will why will you not be fast men and true to those great names of Justice Equity and Righteousness as they shall be revealed to you not to your own opinions frowardly persisted in how plausible or profitable soever and as new and better light shall shine not be in love with former darkness Be perswaded ye may have erred The Church has right a Right of Tythes a Civil Right a Charter Right and will you yet go against your own principles and deny other men that right your selves think fit almost to resolve to die for Will ye not grant what in your own cases ye ask and refuse to give to others what ye expect to receive your selves shall they not have what ye will not be denyed What Equity Reason or Conscience were this Be valiants be wise be just and constant I crave no more Or if ye ye will not striving to do to others as you would your selves should be done unto How dwelleth the love or law of Christ in you How can you expect that God who is a God of Wisdome Justice and Truth should ever more shine with the least ray of his favour upon any of your enterprises This Apostrophe was needful God lay it to your hearts Remember there is a day appointed when God shall judge the world by Jesus Christ and then if you should appear to have wronged his Messengers despised his Prophets or driven on any close unjust design with success of impoverishing and making a prey of their worldly weakness whom God hath intrusted with your souls How would you answer this worst of wrongs What put up in excuse of so aggravated injuries Or what could you think to say to such an imputation Alledged by his justice Inforced by your adversary Assured by the things Recorded in his and your memories Attended with the furies of another world for compleat revenge and that of the worst of crimes hath the least of excuse the most of shame and of all you can readily think of the weakest and lowest hopes of mercy Especially sith now the light of truth hath shined into your souls by better information at least shined upon your souls by offer of its bright and piercing beams ye May have received the truth which truth would set you free from errours Or if no more yet it hath been laid before you or you have been told but where it is that ye may seek for it which will render you far toward Without excuse CHAP. XXII AND thus much of for and from the most known Head of all our Laws the great Charter whereof the more because it deserves more Proceeding next whereto is a Concession of about the end of Hen. 3. confirming the Jurisdiction and by consequent the things thereunder in a Parliament Ordinance called Regia Prohibitio I first met with it
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
that waited on the Altar heretofore did partake of the Altar there So he that ministreth the Gospel now should live 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 not of the Gospel but of the Reward of his good message or Glad tidings as 4 By M. Mede in Diatrib on the place pa. 329. hath been somewhat Critically but very Judiciously and Soundly observed on that Text. Thus then this Politick and herein wise and just Prince resolved and accordingly gave his minde in sundry Acts passing his seal The first whereof clear enough in it self and consequentially much to our purpose was in cutting off Appeals from hence to Rome and so making this Island-Church as having no dependance of abroad a perfect Independent Congregation For so it was then judged most expedient that the affairs of Judea should not be sent necessarily to Egypt or Babylon Jerusalem might conclude all controversies that arose in the Land where Jerusalem was and our Kings Crown being of Circular and thereby most capacious form was large enough to involve and comprehend under it a resolution of all those difficulties might arise under it And that Therefore all doubts should be referred to him Therefore all forain Appeals should cease Whereupon ordered and set forth as followeth 24 Hen. 8. cha 12 1. That this of England was an intire Monarchy 2. Had suffered prejudice by appeals to abroad so long as in Causes Testamentary of Tythes Oblations c. 3. It should be so no more but even those causes of Tythes again expressed be here put to a period And therefore 4. Enacted That All causes testamentary causes of matrimony and divorce Rights of Tythes Oblations and Obventions the knowledge whereof by the goodnesse of Princes of this Realm and by the Laws and Customes of the same appertaineth to the Spiritual Iurisdiction of this Realm mark that Parenthesis and the weight thereof and this engraven in the inside of a Law inferted into the heart of an Act of Parliament to give the testimony certainty of credit and the thing as much assurance to us as any thing we have without the Bible that all such causes I say already commenced or happening hereafter c. shall be examined discussed and definitively determined as the nature of any of the things aforesaid shall require here at home With power command and threat to all to do their duty Appeals to whom they shall be made and from whom and where the finall decision shall rest and All in All the Branches before specified Which does as much as any one Parliament Law can establish and assure the then power of the Church and thereby her following Acts even about Tythes expressed and by name and by consequent the Right and Property that should be at any time the result and fruit of all Which must amount to we know what In the next year we have more of the same nature in that concluding Proviso of 25 Hen. 8. 19. before mentioned about keeping life in the body of the Provincials for a while and till the new could be made when the Pope the seeming Head of them was taken off All know what dependance had been and both to composition and execution what influences were formerly derived from that forain power upon those Laws When the Head is cut off the lower Nerves use and by consequent limbs to lose all power and motion for want of intercourfe with the brain wherein they were rooted which might be feared or doubted here reasonably and this made it necessary to infuse a new life of power that should serve as then intended for a while to quicken the old body till a new should be framed by chosen workmen to fit the King better as to making and execution depending solely on his authority Accordingly done The mentioned Proviso ratifies all Canons Constitutions Ordinances and Synodals till the thirty two should have proceeded effectually If they have so done we have gained enough even to this particular and 1 Pag. 145. shewed how before If not this Howsoever we have gotten that the strength that is in the Provincials all of them Those for Tythes before and all other save what since revoked as about Tythes nothing has stands firm and fast by Parliament Constitution and the evident sense of the words is to the purpose of these things unavoidable But if both these be yet remote or not so fully home wrapping things onely in implying generals or consequences that take in Tythes but implicitly wherein by derivation which is always to us fallible may be mistake Come we next to that which principally and fully and in its finall and clear utmost scope intends and expresses Dueness yea Makes it and where the words of the Law give the utmost any order can a purposed Right and way for Recovery Where is that When the Cloisters went down and the whole Ecclesiastical state was thereby troubled not a little in 27 Hen. 8. Then was it needful and Then was it done and Then the right of these dues established intended to be perpetuall How appears this By the Statute made the same year in chap. 20. which thereon to make some judgement by the way as it is among the next that are nearest on this side toward us So is it the utmost and farthest on the other most mens weakness of sight is able to discern or reach to the apprehension of and yet they think they ken all and reach as they do as far as they can the bottome whereon all is settled But blame them not their sight is dim and being hindred by business idleness averseness to the thing or manifold other sorts of incumbrances or distractions that they cannot or do not purifie or strengthen it by art study industry and other painfull and laboursome means usual of searching and gaining the truth they work not beyond the sphere of their power and ability making able and fitting judgement of those things they have not the plain and simple knowledge or apprehension of that thereby they may be so able and prepared to judge They are reputed Learned if they can little more then turn an Almanack understand some plain English Authour or but have seen a Statute and then as the Aborigines of Italy which born and bred there travailed never far from their simple homes but wonder at all abroad which strangers tell them Or as some simple Rusticks who used to behold only the hils that incompass the valleys where they live think them to be near the end of the world if any thing be shewed them done beyond the mountains they dare scarce believe a part and will rest much perswaded that whatever travellers tell them is though they say what we have heard and seen declare we unto you little better then well-composed fables For they walk by sense and not by faith or that little faith they have is confined to the things of their own narrow hemispheres Even so These the utmost of whose knowledge or highest of whose
Judge shal crave the assistance of the Justices to attach the party and commit him to ward till he shall recognise to yield quiet obedience c. Provided that this extend not to London who were to have a way by themselves nor to hinder any remedy by due prohibition c. Nor any thing to continue longer then till the new Canon should be made which is not yet done and whereof before enough Mark the whole Tenour Is here any thing of giving Tythes Of wronging any man of a Farthing by a new and forced Imposition Of removing from one to settle on another To enrich Peter by taking from Paul Not a syllable But all upon supposition that somewhat was due before Let that be paid or if not the allowed ancient course is awakened and quickened for recovery So 't is onely a Declaratory Law as Sir Edward Cook speaks often upon like occasion renewing what was and rowsing up the dulness of perverse and covetous men to pay who were found backward but this was a goad to force them on forward in the way they had went and wherein they ought to go It were a disparagement to have here a Right settled to the Thing and to it in our opinion yea to our opinion it selfe to think so But it seemeth things went not on by help of this new Law fully according to desire The Times were we know troubled and many other Rights being both unsettled and removed no marvell if these Neighbours to them were also shaken Divers no doubt wished them more then so quite down the mouthes or rather Gulphs or rather then both hellish depths of sacrilegious and covetous carnal men having never been but wide open to devour what ever was sacred and here stood gaping to swallow this morsell none of their Own but due to man in Justice as well as to God for Religion and by Dedication For going on to subtract the just payment the complaint is evident inshrined in the sacred Monuments of the Law it selfe and entered the Parliament Roll for memory with what the wisedom of that Councel the Representative of the Nation could afford for remedy of so large a spreading inconvenience It was intended chiefly for the new Impropriator inabling him being Lay to make his Complaint in the spiritual Court but reaching in all other also with intent to let him in with them by no means purposing to shut or let both out and though with due restraint at first to that examen onely yet Evasions were after found that both have used to go out where no more was intended but to let one in The Law speaks as followeth How Tythes ought to be paid and how to be recovered being not paid Where divers and sundry persons inhabiting in sundry Counties and places of this Realm 32 Hen 8. cap. 7. and other the Kings Dominions not regarding their Duties to Almighty God and to the King our Sovereign Lord but in few years past more contemptuously and commonly presuming to offend and infringe the good and wholesom Laws of this Realm and gracious commandments of our said Sovereign Lord then in times past hath been séen or known Mark Laws duties and lawfull Tythes have not letted to subtract and withdraw the lawfull and accustomed tythes of Corn Hay Pasturages and other sort of tythes and Oblations commonly due to the Owners Proprietaries and Possessours of the Parsonages Vicarages and other Ecclesiastical places of and within the said Realms and Dominions being the more incouraged thereto for that divers of the Kings Subjects being Lay persons having Parsonages Vicarages and tythes to them and their heirs or to them and to their heirs of their bodies lawfully begotten or for form of life or years cannot by order and course of the Ecclesiastical Laws of this Realm sue in any Ecclesiastical Court for the wrongfull with-holding and detaining of the said tythes or other Duties nor cannot by the Order of the Common Laws of this Realm have any due remedy against any person or persons their heirs or assignes that wrongfully detaineth or with-holdeth the same by occasion whereof much controversie suit variance and discord is like to insurge and insue among the Kings Subjects to the great detriment damage and decay of many of them if convenient and spéedy remedie be not therefore had and provided Wherefore it is ordained and inacted by our said Sovereign Lord the King with the assent of the Lords Spiritual and Temporal the Commons in this present Parliament assembled by Authority of the same that all and singular persons of this his said Realm or other his Dominions of what estate degrèe or condition soever he or they shall fully truly and effectually divide set out yield and pay all and singular tythes and Offerings aforesaid according to the lawfull Customes and Vsages of the Parishes and places where such tythes or Duties shall grow arise come or be due And in case it shall happen any person or persons of his or their ungodly and perverse will and minde to detain or with hold any of the said tythes or Offerings or part or parcell thereof then the person or party being Ecclesiastical or Lay person having cause to demand or have the said tythes or Offerings being thereby wronged or grieved 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 Ecclesistical Laws And so on to the Appellants paying Costs before he remove the Sute Order to call in the Magistrates help in case of contumacy saving Lands discharged of Tythes and the City of London c. This is that clearly is and if there we no more one would think enough to settle as far as an Act of State or publick Decree can both a right and a course of Justice that men should both be apportioned these Dues and know how to come by them of which yet I remember my word before and far deeper is laid and upon more firme and lower faster ground then any single tottering Act the Foundation of this Right which settles not but upon or with the whole body of immovable Fundamentals of the Kingdom is clasped in with the Roots of Government hath grown up with it through all her known progresses to the present State of perfection is flesh of her flesh bone of her bone nor can is much to be feared without mortal violence admit a partition and segregation such as if mens private parcimony and pinching wretched Covetousness joyned with improvidence and injustice should go on to call for so great a mischief upon themselves would indanger to shake the frame of the whole Compages and by the same unadvised Principle of its unjust and violent removal leave little constancy or assurance of any thing Which great Possessours had need chiefly to look to and prevent if they can upon any pretence as of easing poor men
quod primò principaliter fit Donatio Ecclesiae secundariò Rectoribus personis says the same Bracton Which if it be excepted against as thrown in with the exploded Abby possessions elsew here is shewed some difference It is in Case of Remedy for recovery of Cathedral Conuentual and Parochial Church-lands by a Writ of Juris utrum whether an Assize shall lay of the latter as of the two former and it is 5 Bracton in tract de Assisa utrum ca. 2. Sect. 8. f. 2 6. said it shall not For though those Lands were given to them In liberam eleemosynam yet they were given to Persons as well as Churches who in that regard having leave of remedy As Other men had there 6 Quod alicui gratâ—osè conceditur trahi non devert aliis in exemplum Reg. Iuiâ—s Can. 74. needed be no stepping aside out of the way upon no occasion and the form of the gift may be known by the Charter but now for him that has Right by his Parish Church it was not so that any thing was settled upon his person but onely upon his Corporation Et quae persona nihil clamare poterit nisi nomine Ecclesiae suae quia in Ecclesiis Parochialibus no fit donatio personae sed Ecclesiae secundùm quòd perpendi poterit per modum donationis This is evident for what Land is given to a Parish Church the reason is the same of Tythes as devoted to beyond this World and 1 Sir H. Spelman of Tythes chap. 17. That things offered to God be Holy I must first explain what I mean by Holy that is not that they are divine things or like those of the Sanctuary which none might touch save the anointed Priests But like the Lands and Possessions of the Levites mentioned in Lev. 27. v. 28. 29 that were said to be holy and separate from common use and separaie from man that is from the injury of Secular persons and to be onely dispâ—…sed to and for the service of God Defensum munitum ab injuria hominum ff de rerum divis L. Sanctum as the persons of Emperours and Kings are said to be sacred For as the Altar sanctifieth the Offering Matth. 23. 19. So these things being offered to Goâ— are by the very act of Oblation made holy and taken so into his own tuition as they may not be after divorced p. 82. sacred in the same sense that any thing visible is as separate and laid in in several from the touch of prophane hands and common vulgar uses designed and set aside for God and godliness 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as is 2 Aristot Polit. l. 6. c. 8. Aristotles very fit and apt expression onely for Heaven Not for nature or sin necessity or sensuality in the serving of which ends most other things spend themselves but merely to set forth Gods honour in this World as the Ox or the Lamb brought to the Tabernacle or Temple or as he reserved many things to himself in the Levitical Law but the Levites were his Receivers He was no more visible Then then Now nor the things invisible and of a different nature yet to his honour yea to himself were appointed then and he did appoint them sundry things to be set aside which his Levites had and he in them So here As in implication of some like thing whereto believed and received here it was spread abroad and yet remains at the sea coasts that those followers of Peter and the other Apostles who maintain theit temporal life by the painfull labour of Fishing bring the Tenth of their personal gains and lay it down at the publick Minister of sacred things his feet by the name which they yet retain of Christs share Why this but because they intend Him a part of every Draught As if never a day or night they lay forth with any success but somewhat must be laid aside for Heaven and of their penury some mites be continually paid in to his Treasury How To give them into his Own hands This is impossible He is in Heaven beyond the thick clouds where we nor can offer nor he receive any thing But he has Servants and Service and Ministery and Ministers upon earth to whom he hath said He that receiveth you receiveth me into what place soever ye enter Take what ye finde for the Labourer is worthy of his hire For them therefore and their sakes 3 In as much as all the Types of Christ as a Priest have received tythes as duâ— as types and in as much as his person and office are eternal and therefore the annexa and in as much as he hath no whâ—re dispensed with or denied or refused c. and lastly in as much as he hath left those are his Ambassadours in his stead for my part I do not see why unto them in the Name and Right of their Master those rights should not be due which were manifestly His in his Types and of which Himself hath no where in his word declared any revocation Raynolds on Ps 110. 4 p. 474 175 in His Right these things are issued forth and brought in and accordingly they receive name If the world were asleep at first when the title was given and prevailed It hath been awaked at some time since 'T is hard to impose on the vulgar or plant any name or titie among them that shall with success spread and grow unless it fit in with their preconceived notions and apprehensions It seems this did whence they entertained it generally and retain it firmly and by this name they yet express their own mindes of what they give calling it Christs share Upon which account of somewhat beyond meerly Human and that had a touch of Divine or toward Heavenly These rights became triable and the doubts of them onely disputable and determinable in that Court by rule and practise where few of earthly or meer worldly things were once thought of and whose natural and first proper essential bound of Jurisdiction was Spiritualia Spiritualibus annexa There were inquired into things above this world and which could not be regulated by common rules of Civil Justice as Articles of Religion Exercise of Discipline Ecclesiastical Censures and generally things being or reputed Sacred And Thither Also as being of kinde and kin did These things throng in or rather were both admitted and invited as Saying by Doing what was and that they were not reputed meerly of humane consideration because they were let in and there had regard and only proper tractation or trial where things Divine and most nearly belonging to God had or should have had their due inquiries If the aim had been only to get in dues these Dues to determine of Civil property or to keep one man alive in a Parish All Civil Courts of Justice were open where All such things had their proper inquiries and resolutions and the Tenth part needed not to have been
separate from the Nine But it seems somewhat farther was aimed at and meant or implyed which was the cause why these things were parted and the face of things seems to represent that there was an apprehension and supposition that it was because they were thought to draw near the things of God and were as far as any toward Beyond this world and Therefore they were sorted with a scene accordingly and had their trail and discussion where the things of Religion and Christianity were inquirable onely sc in the Court-Christian Farther by onely which kinde of Supposition the crime can be aggravated of taking them away to that heighth it commonly is and men for purloining be accounted in the number of more then unjust Impious and Sacrilegious For it seems at least unto me that it is not so much the violation of any Command or Law humane or Divine from earth or above heaven if it were possible can denominate and specifie this sin if that Law were as plain as another Divine Command Thou shalt not commit Adultery Thou shalt not Steal But something else and growing in the Nature of the sinne below that must advance the crime so high as to change kinde and become of Wrong and Injustice Impiety and Sacriledge To rob Heaven must offer violation to Heaven and that be more then to offend in transgressing a Law of Heaven For the Morall Commandements above come thence and are in force for us and yet No one says Adultery or Theft are Sacriledges Sins they are but that their full latitude the Divine Precept does not new specifie the nature of the offence These or Any So heretofore when Jus divinum undoubted had bounded every ones own The tribes at least if not the families were parted by sure and immediate Commission from Heaven yet the unjust invasion of any part even then was not counted I believe more then Unjust 1 Qui rapit pecuniam proximi sui iniquitatem operatur qui autem pecuniam vel Res Ecclesiae abstulerit Sacrilegium facit Cau. 17. qu. 4. c. 18. Wrong or Injury when any part of the second Table was broken whereunto yet the seal of Divine Authority had been affixed in every part No more Even so here to raise this aggravation and cause this change by new specification of the nature of this sin from Theft to Sacriledge seems not to me so properly to grow from any authority of any sort of power and command above as here below from 2 Porrò à sacris fures Eorum vel violatores propriè sacrilegi dicti Pet. Gregor Tholos Syntagom lib 33 cap. 14. sect 8. something in the very heart and nature of the offence which makes it 3 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Rom. 2. 22. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Sacred Spoliation not from the Law but from the Thing when either Sacrum de Sacro or Sacrum de non Sacro or non Sacrū de Sacro is taken still hovering Here below and as the 4 Zouch descript Iur. Eccles par 2. sect 8. Pet. Gregor 1. Tholos ubi supra Lawyer speaks through whose spectacles we are like to see clearest in this case And accordingly the 1 Cujacius in parat ad legem Iul. Peculatus Civilian defined it Sacrilegium est furtum Rei aut pecuniae Sacrae ex loco vel religiosae ex religioso and they are Sacrilegious who 2 Tit. eod L. 9. sect 1. Qui publica Sacra compilavêrunt that have medled with somewhat Sacred still relating to the Thing from the Command And the word also imports that way for 3 Apud Ioan. Calvin Lexie Iur. pa. 824. Sublegere is Furari says Servius unde Sacrilegus dicitur qui Sacra legit id est furatur so Another Still dwelling below and conversant about That Is Not Who says as we do not read that Ananias and Sapphira had any order at all to bring or sinned against any Prohibition in revoking and yet with Achan they usually march transgressing in what had come under divine precept no way in the head of the Sacrilegious We have no strict Command for a Chalice or diverse other Utensils of the Church nor the Church it self yet few I believe will allow but transgressions aggravated by being conversant about these Things are worse then others and of 4 Locus facit ut idem vel furtum vel Sacrilegium sit capite luendum Claudianus li. 48. Digest tit 19. L. 16. sect 4. extraordinary Guilt in this world and they are Things I promised not to meddle with any Theological Discourse Nor do I here but as it has dependance of and derivation from yea necessary complication with what was Civil Our such Laws say That Tythes are Given to God which I say does well infer their surreption sacriledge as on the contrary they that say 't is sacriledge to take them give argument they think they belong to God Forasmuch as not so much Gods Command or Divine Right for dueness makes this sin as something in below with the Act it self and indeed Correlatively they infer or remove one another for if a thing be bequeathed to Gods hand as the Law says plainly here it cannot but be sacriledge Sacra legere to take them Holy from him as on the contrary if it be sacriledge to take them They that say so must first imply and suppose they were made over and given to God I have in the prosequution of this point omitted what Epithites or Paraphrasing Descriptions I finde of them given abroad where they are styled Res Dominicae Dominica substantia Patrimonium Christi Dos sponsae Christi Dei census and the like all which must needs advance them high and joyn them near in with better then meer worldly things In usum pietatis concessae as is properly said in the 1 Caus 16. qu 7. ca 1. Canon Or Decimas Deo dari omnino non negligatur quas Deus sibi dari constituit quia timendum est ut quisquis Deo debitum suum abstrahit ne fortè Deus per peccatum suum auferat ei necessaria sua as in the 2 Cited by M. Selden Hist ca. 6. sect 6. Councel of Mentz But these are without the Circle of our Own to which I promised to confine my self Much less may I take scope to look abroad into the profane world for their Oblations even of Tythes and to God to whom they vowed and thought they payed As Agis in Xenophon and Agesilaus in the same who both brought their Tythe to Delphos to their god and offered it him which 3 Agis Delphos profectus est ac decimam Deo obtulit Xenoph. ac rursum Hostium verò ita fruitus agro est ut duobus annis centum talenta ampliùs Deo apud Delphos decimam dedicaret Id vid. Baron ad an Christi 57 sect 74. tom 1. col 607. Baronius having remembred and many more concludes with At verò non immorabor