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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A81692	A defence and vindication of the right of tithes, against sundry late scandalous pamphlets: shewing, the lawfullnesse of them, and the just remedy in law for them, as well in London as elsewhere. / Penned by a friend to the Church of England, and a lover of truth and peace.	A Friend to the Church of England, and a Lover of Truth and Peace.; Downame, John, d. 1652,; Nomophilos Philotolis.	1646 (1646)	Wing D2074; Thomason E339_7; ESTC R1318	21,705	42

appeasing of the said strife then newly grown submit themselves to stand to such Order and Decree upon compromise touching the paiment of Tithes oblations and other duties within the said City and liberties of London as persons whom they had mutually chosen for the appeasing of the said strife being the greatest Lords and Officers of Justice then in the Kingdom should make and ordain viz. Tho. Cranmer Archbishop of Canterbury the Lord Wryothsly Lord Chancellour of England Thomas Duke of Norfolke Lord Treasurer of England Sir William Pawlet Lord Sr John President of the Councell John Lord Russell Lord Privy Seal Edward Earl of Hertford Lord great Chamberlain of England John Vicount Lisle high Admirall of England Sr Richard Lister Chief Justice of England Sr Edward Mountague Chief Justice of the Common Bench and Sr Roger Cholmely Chief Justice of the Eschequer by which Statute it was enacted that what Order should be made or decreed and concluded by the said Archbishop Lords and Knights or any six of them before the sixth of March then next following concerning the paiment of Tithes oblations and other duties within the said City and liberties of the same and enrolled in the Kings high Court of Chancery of Record should be as an Act of Parliament and should binde all Citizens and Inhabitants of London and all Vicars Parsons and Curates of the said City and their successours for ever And that every person denying to pay Tithes or other duties contrary to the said Decree so to be made and enrolled should by the commandment of the Lord Major of London and in his default by the Lord Chancellour of England be committed to prison there to remain till such time as he or they should have agreed with the Curate or Curates for his or their Tithes as by the said Statute may more appear eight of which ten persons made their Decree accordingly the 24. day of February in the year 1545. Thomas Duke of Norfolke and Sr Edward Moumague were only left out which Decree I affirme to be enrolled in the Court of Chancery and a true Copy of that enrolled Decree is at this day printed with the Statute of 37 Hen. 8. And I make no doubt but the City of London hath likewise an exemplification of that inrolled Decree under the broad Seal And though Mr John Claydon by Mr Norburies direction searching in the Chappel of the Rolls could not finde it doth it follow therefore that an other Clerke cannot finde it Or if it cannot at this day be found doth it follow in the negative that never any such Decree was enrolled How many printed Statutes have we at this day by which the Judges of the Realm do adjudge cases in Law of which the originall Records cannot at this day be found and the like hath been of this printed Decree for these hundred years without reference to the Record in Chancery But admitting there was never at all any such enrolled Decree will it therefore follow or will any Lawyer affirm that then there is no remedy for Tythes in London doth not the former Decree of Archbishop Cranmer and the Lord Chancellour Audley then take place For that Decree is not repealed by the Statute of 37 Hen. 8. by any words in that Law but was to continue in force till the Decree upon arbitrement and compromise was made if this later was never made then that former Decree continues still and if that former Decree was extinct and gone to which the Provisoes in the Statutes of 27 Hen. 8. and 32 Hen. 8. do only refer then Tithes in London are due and paiable as formerly by the Ecclesiasticall Law so that quacunque via data there is a ready and certain remedy for the recovery of the Tithes of Houses in London So weak and feeble are those weapons which are lifted up against the force strength of truth which I hope I have cleerly layed open in the point of Tithes both for the Right and for the Remedy even to the Pamphleters themselves unlesse they will caecutire ante solem as the Proverb is And therefore they begin to shift their weapons and in stead of arguments against the Statute of 37 Hen. 8. and the Decree of Tithes upon it they slander down-right that very Parliament of 37 Hen. 8. I abhor to do them the least wrong and therefore I will quote the very words of one of their champion Pamphlets like another Goliah of Gath called The Inditement of Tithes By the many scandals and errours but of one passage in that book you may easily judge what to thinke of the truth of all the rest contained in that Pamphlet The words to the Lord Major among other reasons and grounds against Tithes are these May it please your Lordship to take into consideration what an over-ruling hand King Henry the eighth and his Privy Councel did bear over the Parliament at that time which as it appeared in other things so especially in this of Tithes in Anno 37 of his reign prevailing so far as to induce that Parliament to delegate their power in a matter of so great concernment to the then Archbishop and other Lords and Knights Enacting that whatsoever they should decree therein should binde at the Citizens for ever an unheard of strain of Parliament to confirm with reverence we speak it they know not what and which to this day hath had no other confirmation In which Decree we pray your Lordship to observe the ignorance and superstition of that age that followed the steps of their erroneous predecessours both in Episcopacy and Tithes without comparing them to the word of God also the unequall dealing of those entrusted providing that great mens dwelling houses should be free from Tithes whereby it may appear this Decree or Law for Tithes if it deserve to be so called is not so valid or reasonable as it is generally conceived and however ought not to be pleaded or stand in force against the word and minde of God In which words you may observe these scandals and untruths First Where the Lord Major is desired to consider what an over-ruling hand King Henry the eighth and his Privy Councel did bear over the Parliament at that time which as it appeareth in other things so especially in this of Tithes in Anno 37 of his reigne c. There are no lesse then these three slanders First of the person of King Henry the eighth who did nothing in this businesse of Tithes but as a tender father to the Citizens of London who loved him and he them not as an overbearing Prince for it appears plainly by that Statute that it was an Act of grace in him the words are these To the intent to have a full peace and perfect end between the said parties their heirs and successours touching the said Tithes oblations and other duties for ever Be it Enacted c. Secondly of his actions making him in this matter of Tithes and in other things to

A DEFENCE AND VINDICATION of the Right of TITHES Against sundry late scandalous Pamphlets SHEWING The lawfullnesse of them and the just Remedy in Law for them as well in London as elsewhere MAL. 3.8 Will a man rob God yet ye have robbed me but ye say Wherein have we robbed thee in Tithes and offerings Penned by a Friend to the Church of England and a lover of Truth and Peace LONDON Printed by George Miller dwelling in the Black-Friers 1646. TO THE RIGHT HONOVRABLE THOMAS ADAMS Lord Major of the City of LONDON Right Honourable IT is storied of Diogenes a wise Philosopher though a sullen Cynick that when he was about to dis he desired his friends about him to bury him after his death with his face downward they thinking this request to proceed rather from his humour then from his wisedom demanded of him the reason he told them That very shortly the world would be turned upside down and then his face would lie upward I need not apply this story your Lordship is no stranger in this our Israel and cannot but observe this manner of Change you now sitting at the Helm for the government of this goodly City I had almost said Nation for England is in London at this day I will not speak of that lovely Gemini Religion and Law which in the judgement of * V●i Religio est ibi bon● mores bona disciplina c. Sublata vera R●ligione cor●●ere Re●r necesse est Quta sublato timore Dei sequ tur impietas ex ca ruina Imperiorum Mach. lib. ● in Dec. l. iv c. 11. Psal 4● Machiavell himself do rise and fall together I will only call upon your Lordship with the Prophet to come and behold the works of the Lord what alterations he hath made in this great City of London which I have sometimes known as a City like Jerusalem at unity within it self not a convicted Recusant nor a notorious Heretike or Schismatick to be found within the walls of that City London whose twelve Companies like the twelve Tribes of Israel were wont to go up by multitudes to the House of God not in the sound of a Trumpet and Alarm of warre but with the joifull voices of Peace and Praise like those that kept holy day London whose Lord Majors sword was almost as formidable within that City as the Scepter without But is London so now I will say no more but weep out the rest for that City where I was born and bred and where I have spent most of my daies whose prosperity and wellfare I have ever sought Quae peccatis perijt stetibus stetit Jer. Epist al D●n●●ium and shall daily pray for in the sense of Ierome concerning Nineveh that what sin had thrown down from the firmenesse of rocks grace might re-establish in the softnesse of tears The subject of this ensuing discourse being in the number of those things that are turned upside down is no stranger to your Lordship though the Authour be and cranes your patronage which in justice you cannot tell how to deny your Lordship being appointed by the Law of the Land the sole Chancellour and Iudge of Tithes in London a felicity beyond all the Kingdom besides where the Law is at this day somewhat loose and unsetled but only in London Fourteen yeers are not yet elapsed and gone since it was a common Question among the Divines of England not whether Tithes were due but whether they were not due jure divino Since it was accounted a most pious and religious worke in divers of your Lordships predecessours to be appointed Trustees for the buying in of Impropriations of Tithes and restoring them to the Church Since consciencious men could not die peaceably in their beds till they had made restitution of substracted Tithes But now of late a strange New-light hath appeared to a generation of men displeased with old Truths not such a light as appeared to the Wise-men leading them to Christ Mat. 2.11 and presenting him with their gold frankincense and myrrhe but such a kinde of light as appeared to the souldiers by which they took our Saviour in the night and stript him of all he had Joh. 18 3. These men in their Petitions to your Lordship confidently tell you for they seldom speak modestly that Tithes are Popish yea Iewish and therefore to he abolished the endowment of Churches by them superstitious the withholding of them lawfull and the paiment of them injurious Whether Will not this spirit of errour in the appearance of an Angel of light at last lead them nay unto what height hath it not already carried them when they can turn Beast into Best and plead for a very Saul to be a true Paul My Lord Fame hath reported you to be a Iudge of the old Portraiture To have an Eagles eye by an exact and diligent search into the Cause before you a Ladies hand in the transaction of Causes with much tendernesse and compassion and a Lions heart to break the jaws of the wicked and to pluck the prey out of their teeth God and the Law by diners ancient and late Charters which the Kings and Princes of this Nation in their grace and favour have granted to the City of London which they made and called their Chamber have armed your Lordship with Power to do great things if you exercise it with your Parts no Garisons either of schisme or sinne can long hold out in this City In this great accomplishment I need not prompt your Lordship what to do I doubt not but you will make it your study your care your duty to purge this City from that accursed and execrable sinne of Sacriledge by causing the maws of such guilty persons like the belly of Ionahs whale to disgorge the law full patrimony of the Church that the blessing of him that was ready to perish may come upon you and that you may cause the hearts of the poor Ministers of London to sing for joy that your daies may be multiplied as the sand and when they expire that God may then make you to die in your nest leaving a blessed memorial behinde you It was the praise of Constantine the Great to be called the Advocate of Gods Church which be thought a greater glory to him then to be Emperour of the whole world And let it be a greater Honour to the great Lord Major of London for so hath bis Office made him to be accounted the Churches Advocate in helping the Ministers of London to their just Patrimony then to be Governour in Chief of that great City which Honour let it be the portion and inheritance of your Lordship and of your vertuous Successours for ever So prayeth he that maketh it his utmost ambition to be to your Lordship and to that whole City an Avowed obliged servant 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Imprimatur May the 9th 1646. John Downame A DEFENCE OF TITHES THE common Law of

Hen. 8. c. 2. for Tithes in London Having thus proved the Right of Tithes I come now to the second head being the Remedy at Law for the recovery of these Tithes when they are deteined Remedy and Right do usually go together at Common Law 2 Head That Right which is in Law called Remedilesse is very rare and happens only in such cases whereof there hath been no precedent seisen or possession which falls not out in the case of Tithes of which there hath been a constant seisen and possession in the Church of England But the remedy for Tithes were anciently in the Kings temporall Courts Mic. 7 Ed. 1. rot 21. Linwood de Fore competenti 71. Co. 2. Instit. fol. 489 c. 18 Ed. 3. c. 7. as it was by the Imperiall Laws in the Civil Courts of Emperours sometimes in the Sheriffs Turne sometimes by scire facias in the Chancery And the Right of Tithes were likewise tried in the Kings temporall Courts as by the ancient Writts of De recto de Advocatione decimarum and the Writt of Indicavit may appear The first Statutes that annexed Tithes to the Ecclesiasticall Courts agreeing therein with the Common Law are the Statutes of West 2. cap. 5. and Circumspecte agatis made both in one year viz. 13 Ed. 1. The next Statute is 9 Ed. 2. called Articuli Cleri but because the remedy in the Ecclesiasticall Courts went no further then spirituall censures the highest whereof is Excommunication numbers of persons cared not to hazard their souls so they might save their Tithes And to this purpose is the expression of the Act of Parliament of 27 Hen. 8. cap. 20. That whereas numbers of evil disposed persons having no respect of their duty to Almighty God but against right and good conscience did withhold their Tithes due to God and holy Church as is in that Statute more at large expressed By which Statute it is provided that if any person refuse to obey the Processe of the Ecclesiasticall Court for the payment of Tithes that then upon complaint or information of the Ordinary to any of the Lords of the Councel or by two Justices of Peace whereof one to be of the Quorum in the County where such offender dwelleth that then the said Lord of the Councel and two Justices shall commit such offender to prison without bayl or mainprise untill he shall put in surety by Recognisance to such Councellour and Justices of Peace to obey the Processe of the Ecclesiasticall Court The like remedy is given by the Statute of 32 Hen. 8. cap. 7. for a lay person Farmor of Tithes by two Justices of Peace after definitive sentence in the Ecclesiasticall Court for the recovery of the Tithes withheld and substracted against any person refusing to obey the said sentence The Statute of 2 Ed. 6. cap. 13. decides the suit for Tithes to be partly in the spirituall Court partly in the temporall Court of the King for personall Tithes as Wool Lamb Flax Hemp Apples c. the suit is only in the Ecclesiasticall Court but for prediall Tithes as Corn Grain Hay c. the suit may be either in the Kings temporall Court by action of debt for the recovery of the treble value or in the Ecclesiasticall Court for the double value And this was the Law for the recovery of all Tithes whatsoever in the Kingdom of England till the Statutes of 27 Hen. 8. cap. 21.37 Hen. 8. cap. 12. did alter the course of Law for Tithes of the houses in London which I come now to speak of To speak properly No Tithes are to be paid out of houses for Tithes by the Law are out of things that increase not out of things that diminish out of things that grow not out of things that decay But because Houses are built upon Lands out of which Tithes issued compositions were made by the owners of such houses with the Incumbent for a yearly rent or summe to be paid to him in liew of Tithes for the ground on which they were built 11 Rep. D. Grants Case this composition was called a modus decimandi for which they sued in London before the Statutes of 27 Hen. 8. cap. 21. and 37 Hen. 8. cap. 12. in the Ecclesiasticall Court as they did in other Cities and Burroughs thorowout England but these two Statutes made an alteration of the Law and that the suit of Tithes should be before the Lord Major of London in his default before the Lord Chancellour or Keeper of England which is the reason why the Statutes of 27 Hen. 8. cap. 20.32 Hen. 8. cap. 7. and 2 Ed. 6. cap. 13. do make speciall provisoes and exceptions of the City and Inhabitants of London concerning their paiment of Tithes It appears by the Statute of 27 Hen. 8. cap. 21. that there was much contention and strife in the City of London and liberties of the same between the Ministers and Citizens of London concerning the paiment of Tithes oblations and other duties within the said City for the appeasing whereof a certain Order and decree was thereof made by Tho. Cranmer Arch-bishop of Canterbury and Tho. Lord Audley Lord Chancellour of England who made their Order and decree thereof about the Feast of Easter Anno Dom. 1535. which was confirmed by the Letters Patents of King Hen. 8. and his Proclamation thereupon Afterwards at the Parliament on the fourth of February 27 Hen. 8. it was then enacted That the Citizens and Inhabitants of the same City should from Easter next following pay their Tithes to the Curates of the said City and suburbs according to the said decree untill such time as any other Order or Law should be made and confirmed by the Kings Highnesse c. and that every person denying to pay his Tithes according to the said decree should by the commandment of the Lord Major for the time being be committed to prison there to remain untill such time as he should have agreed with the Curate for the said Tithes as by the said Statute already printed in the old Statutes at large may more appear According to which Order and decree the Citizens and Inhabitants of London duely and orderly payed their Tithes to their severall Curates for the space of ten years together untill the 37th year of Hen. 8. at which time divers variances and contentions did newly arise between the Ministers and Curates of the said City and the Citizens and Inhabitants of London touching the paiment of the said Tithes oblations and other duties which strife did grow not from any unjustnesse in that Order and Decree but because certain words and termes specified in the said Order and Decree were darke and obscure and not fully and plainly set forth as by the Statute of 37 Hen. 8. cap. 12. may appear Whereupon as well the Pastours Vicars and Curates of London as likewise the Citizens and Inhabitants of the same did voluntarily of their own accord and meerly for the