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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
land_n	case_n	pay_v	tithe_n	1,784	5	10.3560	5	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A38520	Epistola Medio-Saxonica, or, Middlesex first letter to His Excellency, the Lord General Cromwell together with their petition concerning tithes and copy-holds of inheritance, presented to the supreme authority, the Parliament of England : wherein the tortious and illegal usurpation of tithes, contrary to Magna Charta, is discovered, the blemished dignity of copy-holders revived, and how lords of manors have formerly incroached upon their liberties, by imposing arbitrary fines, and multiplying of heriots : whereunto is annexed two additional cases concerning the unreasonable exactions of fines and heriots, contrary to law, in these latter times ...	Cromwell, Oliver, 1599-1658.; Wingfield, Augustus. Vindiciae Medico-Saxonicae.	1653 (1653)	Wing E3170; ESTC R5296	18,776	30

not Demas like mind our own present power and profit more than our trust and promises in times of danger these things could not be but what shall we say Deus dabit his quique finem God will in his due time put a period to these things Now to conclude we once more humbly desire your Excellencies favour and assistance in gaining freedom to those who have been greatly instrumental in the work of the Lord and for whose sake paradventure God hath been gracious to this our Sion and Commonwealth and we shall not only pray for the eternall happinesse of your Excellency but also take the boldnesse to subscribe as in all duty and gratitude we are bound Your Excellencies most humble Servants in the Lord Christ. The Petition of the Inhabitants of the County of Middlesex concerning Tithes and Copy-holds of Inheritance presented to the Supreme Authority the Parliament of England Sheweth THat as your Petitioners are really sensible of the unwearied labours this honourable Parliament hath undergone in the Vindication of the Rights and Liberties of the free-born people of this Nation from the incroaching Tyranny of Kingly and Lordly power for which they return a gratefull acknowledgement So they desire to mind you that the wel-affected of this Nation have in this common cause of publique freedom and preservation faithfully served you in their severall places willingly undergoing all burthens either of Tax or Free-quarter besides the voluntary loans of very many even beyond their abilities upon the Propositions And since it is the undoubted right of the free-born people of this Nation from whom all just power is derived to present to their Parliament or Representative all their grievances that so Adaequate remedies may be duely applyed Therefore we offer to your more serious considerations these ensuing particulars to be speedily redressed First Forasmuch as all Tithes reliques of the late destroyed Hierarchy are declared in the 2d Book of Cooks Reports in the Bishop of Winchesters Case to be things meerly spiritual and due by divine right and for which there is no remedy at the Common Law and also in his 2d Book of Instit and Chap. of Tithes that by the Common Laws and customes of this Nation Lands are undecimable which is fully evidenced by a Canon of the Council of Lateran under Greg. 10th 1274. in this manner Let no man give his Tithes where he pleaseth as before but let them be paid to Mother Church And Britton though a Bishop treating of Ecclesiastical power and of what things the Church had counsance doth wholly omit Tithes knowing very well that those Popish Canons and constitutions which not long before had been made for the taking away the Tenths of mens Estates were totally void being Diametrically repugnant to Magna Charta Which likewise is further attested by a decretal Epistle sent from Innocent the 3d. Pope of Rome to the Arch-Bishop of Canterbury about the year 1215. wherein it is clearly acknowledged That the free-born people of this Nation did by the General and till then observed custom of this Land dispose of the Tithes or Tenths of their estates according to their own free will and pleasure So that it is very clear Tithes have been formerly by the Popish Clergy subtilly perswaded or rather extorted from our Ancestors under the notion and consideration onely of a Divine right and chiefly by virtue of the said Decretal which so awed our forefathers that it frighted them into a servile and unwilling obedience Wherefore we humbly desire that all Tithes and Tenths under the notion whereof we pay a fifth may be speedily removed as a great Oppression and Usurpation that so Husbandry and Tillage may thereby receive the greater encouragement and that all Impropriators may thereby receive such reasonable satisfaction notwithstanding much may be said to the contrary as you in your wisdoms shall think fit And that likewise a comfortable maintenance may some other 〈◊〉 ●nd peaceable way according to the Word of God be provided for the Ministry that so the glorious Gospel of Jesus Christ may no longer be impeded by that sensual and earthly Remora of litigious Tything but that Evangelical Messengers may with the Apostle Paul by the sweetnesse of their lives and conversation convince gain-sayers that they come not to seek ours but us Secondly That all Copy-hold Lands of inheritance may be made free from all Fines Heriots and other slavish services brought in by and after the Norman Tyranny as may appear by Bracton a great Lawyer in H. 3. his time in his first Book and 7th Chap. of the Customs of England where he saith That in the Conquest men held their lands freely by free services or customes and certain untill being thrown out by usurping Normans and their adherents they were enforced to retake them again to hold by unjust and unequal terms and services yet still certain and nominated which through the avarice cruelty and oppression of succeeding Lords of Manors have been increased illegally to a strange multiplication of Heriots and Arbitrary raising of Fines from two years value according to the Quitrent to two and three years value according to the sull Rent a thing altogether unreasonable and unconscionable as hath been clearly adjudged And although your Petitioners humbly conceive that Copy-holders of inheritance ought by their Tenures to have been protected by their Lords and to have been freed in this time of War from all publick burthens and taxes yet so far have they been from affording the same unto them that they have for the most part forsaken and denyed them protection whereby their Copy-hold Tenants by them deserted have for a great part most willingly adhered to the Commonwealth and have laid out themselves to the utmost in bearing an equall share in all publick hurthens with the Free-holders to the impoverishing of themselves their Wives and Children And Moreover since as we are informed much of the Lands setled upon Souldiery for their Arrears are freed from all Tithes Fines and other slavish services which we envy not but exceedingly congratulate nay since all Lands held in Capi●e and Knights service are by an Act of this present Parliament freed from all ward-ships and other slavish imcumbrances notwithstanding the greatest benefit thereof doth redound to the advantage and emolument of those who have bee●●●●●ctual Armes against the State or who at least in their declared affections have been utter enemies thereof Seeing we say that not only the Army but your enemies have tasted so deeply of your grace and favour Let it not be said in Gath nor published in the streets of Ascalon that your dearest Friends those out of whom your Armies have been raised formed and supplied with men and money all along those by whom you have in the greatest danger and times of exigency been most readily and willingly assisted even to the hazard and losse of their lives Let it not be said we humbly reiterate that those who have been your

Epistola Medio-Saxonica OR Middlesex first Letter to his Excellency The Lord General Cromwell Together with their Petition concerning Tithes and Copy-holds of Inheritance presented to the Supreme Authority The Parliament of ENGLAND Wherein the tortious and illegal Usurpation of Tithes contrary to Magna Charta is discovered the blemished dignity of Copy-holders revived and how Lords of Manors have formerly incroached upon their liberties by imposing Arbitrary Fines and multiplying of Heriots Whereunto is annexed two Additional Cases concerning the unreasonable exactions of Fines and Heriots contrary to Law in these latter times Published for the satisfaction and vindication of the people of England from all Decimal Oppression and Lordly Tyranny The Second Edition To which is added a Reply Styl'd Tithes totally routed by Magna Charta LONDON Printed by F. L. for William Larnar at the Blackmore near Fleet-Bridge 1653. In Decimas serva Praedia Carmen Hexastichon SI mos Angliacus nec sacra oracula suadent Cur solvis Decimas Anglia lusa tuas Si felix rediit seclum victique Tyranni Cur servile feres Anglia maesta jugum Sic pia vota tulit Miles totusque Senatus Reddere cur differs Anglia vota Deo Vpon Tithes and Copy-holds an Hexastick Verse IF English Custome nor Gods Words perswade Why yet are Tithes deceived England paid If th'age of Gold be come and Tyrants broke Why dost thou England bear the servile Yoke If th' Army and the Senate Vows have made Why are they by them England thus delay'd Middlesex first Letter to his Excellency May it please your Excellency THe sweet odour of your name and unparallel'd affection towards goodnesse and good people hath imboldned us in the behalf and at the intreaty of the wel-affected of this County to communicate to your Excellency our intended Addresses by way of Petition to the Supreme Authority for the removal of some grievances which have layen long and heavy upon the free-born people of this Nation that so receiving your judicious approbation and assistance we might with the greater alacrity make our procedure Now Sir the Heads of our Petition are onely two namely the removal of that usurped Popish relique Tithes and the abolishing of that Tyrannical Oppression and slavish tenure of Copy-holds of inheritance finably at the Lords will as things Diametrically repugnant to divine and humane Laws Lev. 25.14 Ye shall not oppress one another and Ier. 30.20 I will punish all that oppress thē where your Excellency may be pleased to take notice of a prohibition not to oppress the people of God and of a punishment threatned to those that do it And in Exo. 23.5 There is a command that if we see the Ass of our enemy lying under a burthen that we shall not passe by but help him If therefore an oppressed brute Creature ought to be relieved by us how much more a rational how much more a Christian and wel-affected people who in the blackest times of danger and peril have adhered to the State with undanted resolutions adventuring lives goods and all for the glory of God and the preservation of this Common-wealth wherefore let not O let not our State bury in silence the day of this peoples love who next to your Excellency and renowned Army under God have been a principal means of the glorious freedom our State now enjoyes But because most men look more upon humane than divine Authority especially where their own private interest falls in and as it is in the 5th Book of Aristotles Ethicks Can be vertuous and just in matters of their own concernment but not so in what concerns the publique which occasioned Nobile illud dictum Biantis that noble saying of that Grecian Sage 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Power will discover the nature and disposition of every man Therefore for the satisfaction of those whose judgements are over-ballanced in the scale of earthly interest not in the least reflecting on your Excellency whom we experimentally know to be of a more divine temper we shall in brief produce some humane authorities as motives to the removall of the aforesaid grievances First by the 29th Chapter of Magna Charta It is enacted That no man shall be disseissed or put out of his free Tenement Liberties or Customes but by the lawfull judgements of his Peers or Law of the Land which Charter is of so great authority that it hath been confirmed above thirty times Now Tithes being a part of every mans free-Tenement or free-hold and birth right ought not to be taken away from him either by the Impropriate Person or Appropriate Parson for these reasons First Because by the Stat. of 25. E. 1. ch 2. All judgements given against any points of the Charters of Magna Charta or Chartade Foresta are adjudged void Secondly by the Stat. of 42 Edw. 3. ch 1. If any Statute be hereafter made against either of these Statutes it shall be void Cookes 1. ● Just fo 81. Thirdly in Bonhams Case in the 8th Book of Cooks Reports and in Dr. and Student it is laid down for Law that Acts of Parliament against common Right or Reason are ipso facto void And lastly it is proved by Jenkins fol. 139. That the Common Law shall controle Acts of Parliament made against Right or Reason such as all Statutes for Tithes are and adjudge them to be void because they deprive men of a part of their right contrary to Magna Charta and against the will of the Proprietor or owner so that hence it will plainly appear that those Statutes which have been made by former Parliaments concerning Tithes in times of Popery and ignorance and upon false grounds of their Divine Right being Diametrically repugnant to Magna Charta and destructive of common right then were and now are totally void null and of no force and that all Tithes taken by virtue of them have been usurped illegal and unwarrantable And because some seeing the weaknesse of their Statute-Law foundation may fly from thence to the Umbrage and shelter of custome we answer It is a Maxim in Law that a man cannot claim any thing by Custome or Prescription against a Statute unlesse the Custome or Prescription be saved by another Statute Cooks 2. p. Just fo 21. Now by the aforesaid Charter of Magna Charta which was confirmed by H. 3. about the year 1218. Tithes as well as the rest did belong to every mans Tenement and Free-hold and so far were the Clergy at that time from claiming any Tithes to be due unto them by any Custome as that on the contrary it is acknowledged at the Councill of Lateran under Gregory the 10th Anno 1274. and in the Decretal Epistle sent from Pope Innocent the 3d. to the Arch-Bishop of Canterbury about the year 1215. that the people of this Nation did by a general Custome till then observed dispose of their Tithes according to their own free will and pleasure So that it is very clear at the confirmation of

Magna Charta no Custome of the Land for Clergy-men to have Tithes out of every Proprietors Estate but that they were the proper right and inheritance of the owner of the Land And for confirmation hereof it is said by learned Selden in his book of Tithes that in H. 2. his time which was a little before the said Decretal Parochial right was the right of having the Cure and offering of the Parishiones and that to that Parochial right no right of Tithes was annexed by the practise of that time Whereupon it was usual with the Religious and secular of the Clergy to covenant with their Tenants to pay them the Tithes of their Lands that so they might prevent the Minister of the Parish where the Lands lay Now if there had been then any Parochial right or custom for receiving Tithes how could such a Covenant have prevented the Parochial Minister And that this is a clear truth is evidenced by an Act of Parliament in the first year of Rich. the 2. and in the year of our Lord 1377. in these words It is accorded that at what time any person of Holy Church be drawn in plea in the Secular Court for his Tithes taken by the name of Goods taken away and he which is so drawn in plea maketh an exception or allegeth that the substance and sute of the businesse is only upon Tithes due of right and of Possession to his Church or to another his Benefice that in such case the General averment shall not be taken without shewing specially how the same was his Lay Catall that is to say for him to aver and maintain that the Tithes he laid claim to did belong unto him by Parochial right and custome as Minister of the place was no good and allowable plea in Court but that he must shew in special and in particular how the said Tithes he laid claim to became his Lay Catall whether by grant gift or otherwise So that here is not only an acknowledgement of the Pope and Clergy but an Act of Parliament against Parochial right and custome of Tithes And yet should we grant them a custome for Tithes which they cannot claim without blushing of what weight how like a feather would it be being put in the scale with Magna Charta And although it may be objected that they have now a long time enjoyed them even time out of mind yet that will not avail much since it is not a lawfull user but an abuser and tortious Act carryed on with a power contrary to all Law equity and justice Moreover in customes Non diuturnitas temporis sed soliditas rationis est consideranda Not length of time but soundnesse of reason is to be weighed Upon which ground at a Parliament at Kilkenny in Ireland in the 40th of Edw. 3. The Irish customes called the Brehon Law though of long continuance were null'd by that Parliament upon this ground or Maxim that malus usus est abolendus an ill custome as Tith-taking is ought to be abolished So that the plea of a long continued custome of taking Tithes contrary to Magna Charta ans common right will but little conduce to the justification of its authority and lawfullnesse And if from hence any shall fly to Scriptures refuge which none but avaritious Sciolists in sacred law and language will attempt we shall if the weaknesse of their own arguments be not a clear confutation of their errors and injustice return a modest and sober answer Secondly and lastly as to the other branch of our Petition concerning Copy-hold Lands of inheritance finable and also heriotable by the Tyrannicall practise of many at the will of the Lord of the Manor we humbly conceive that by the equity of the tenth chapter of Magna Charta Let no man be distreined to do greater service for his free Tenement than he ought grounded upon the 25. ch of Levit. v. 17. Ye shall not oppresse one another all those arbitrary and unreasonable exactions of Fines and Heriots exercised of late years by Tyrannical Lords of Manors have been illegal and repugnant to the equity if not the letter of the said Charter and have run beside the chanell of charity law and justice But because many of late and former times have laboured much to vilifie and obscure the credit and esteem of Copy-holders of inheritance and their tenure thereby to make way for their pride avarice and Tyranny we shall therefore make a little further inquiry into the discovery of them Bracton lib. 4. ch 28. saith that Villenagiorum aliud purum aliuà privilegiatum Of Villenages one kind is pure and perfect Villenage the other a more free honourable and privileged Where note that Villenage in its proper and genuine signification is nothing but the service of a Husbandman which may be either honourable or base according to the quality of the person and tenure and therefore he saith Pure or base Villenage is that whereby either a free man or a bond-man so holds of his Lord as that he is tyed to do whatever he shall command him not knowing over night what he must do the next morning and always in all things is held to uncertainties and of this sort is Littletons Tenure of Villenage whose large Tract upon that subject might well have been spared since there were very sew if any even in his time who held by that base and unworthy I enure Now the other sort called by Bracton Privilegiatum Privileged Villenage or as he termeth it in his 2d book and 8th and and 35th Chap. Villanum Soccagium qualified Soccage which is the same with Littletons Tenure of Copy-holds where the Tenants hold their Land by Copy of Court Roll as Cook in his Commentaries upon Littleton 1. p. Inst fo 58. acknowledgeth So that Bractons qualified or privileged Soccage and our Copy-holds are one and the same which is more clearly proved by the same manner of conveyance in alienations for saith he in li. 2. cap. 8. Si Villanus Sockmanus Villanum Soccagium if a qualified Sockman or Copy-holder will convey his qualified Soccage to another let him surrender the same unto the hands of the Lord or his Steward and let the other receive it from them which is the form we now use And in his 1. Book and 2d Ch. they are called Gleba ascriptitii Inrolled Tenants of the Glebe or Manor and who did enjoy such privileges as that they could not be put out so long as that they paid their certain and yearly pensions whosoever was Lord neither might they be compelled to keep their Tenement but might alien when they pleased and they them as we now did hold their Tenements ad voluntatem Domini secundum consuetudinem Manerii at the will of the Lord according to the custome of the Manor Yet was not that such an unbridled will as many pragmatical Novices in Iurisprudential Learning now Imagine not a naturall will but a legall will bounded by

friends Gods friends and their Countries friends should now at length be left to remain in bondage and Gibeonitish slavery whilst their enemies riot and abound in liberty and freedom Wherefore we humbly desire that all Copy-holders of Inheritance may according to your severall Declarations of the 7th of April 1646. and of March 1648. be restored to christian freedom and liberty the fruits of Conquest and the just reward of their expence and hazzard that so of victors they may not become slaves and vassals in their estates to their conquered Lords whom they begin already to feel and are dayly like to find more cruell and unreasonable than ever if they shall return again to reign over them with the full sayl of usurped power Thus hoping that the same God who hath even miraculously given you Victory over your enemies rest from warres peace in your Habitations and put a power into your hands to do righteous things for the good of this Nation will also put into your hearts and minds to do these things represented unto you and what else you in your wisdoms shall know to be for the good and welfare of this Common-wealth And we shall ever pray c. The Case of Copy-holders stated according to the * Quando lex accommodatur ad causam personam non è contra When the Law is applyed to the cause and person not they to it Lesbian Rule of the Law in the corrupt times of Monarchy wherein is clearly proved that no Lord of a Manor of Copy-holds of Inheritance can take for a Fine where as they say uncertain of his Copy-hold Tenant two years clear yearly value of the Land FIrst Because it is resolved by Popham Chief Justice Clench Gaudy and Fenner Justices of the upper Bench in the 42. and 43 Eliz. between Hubbard and Hammon that if the Fines of Copy-holders of a Manor are incertaine upon admittances yet the Lord may not demand or exact an excessive or unreasonable Fine and if he doth the Copy-holder may deny to pay it without forfeiture and according to this resolution it was then said that it had been formerly adjudged in the same Court in one Hoddesdons Case Cookes Reports lib. 4to Now it is a Rule and Maxim that all excessivenesse is abhorred in Law and that all things ought to be interpreted with equity and moderation As put case the Lord of a Manor where Fines through his Tyranny are incertain hath taken time out of mind about a years value not much under nor over If there one of his Copy-hold Tenants shall improve his Land by great charge and industry from 5 l. per annum to be worth 20 l. per annum and then dye and after the Lord shall set two years Fine viz. 40 l. upon his Heir this will be an excessive and most unreasonable Fine First Because where a Lord hath usually taken about a year though a little under or over there to take a year and half though according to the value before improvement is excessive and so illegall if the Rules of right reason moderation and equity were closely held to and kept Next it is altogether unreasonable because through this improvement of the Tenant with a vast expence and charge perhaps treble to the Land the Lord now comes to take in a little compasse of time at a year and halfs Fine six years years value at two years Fine eight years value according to the yearly Rent and worth of the Land before improvement So that now a covetous and unconscionable Lord as too many there are will take advantage to enrich himself out of the Tenants vast expence and industry contrary to the Rules of Iustice equity and honesty Secondly and lastly no Lord of a Manor can by the present Law take two years clear yearly value for a Fine where as Lawyers say they are uncertain though repugnant to those great Authorities in the Letter before recited and contrary to their own Maxims and abundantly savouring of tyranny upon the admittance of a Copy-hold Tenant as is clearly resolved in an action of Trespasse between Stallon and Brady commenc'd in the first year of King Iames in the Court of Common Pleas where the Lord of the Manor did set a Fine at two years clear yearly value which the Tenant denying to pay being unreasonable the Lord enters and thereupon the Tenant brings an action of Trespasse and after five years demurre consultation being had with all the ludges and great Lawyers of England it was at length viz. in the sixth year of King Iames by the Iudges of the said Court of Common Pleas fully and unanimously resolved that the said Fine of two years was unreasonable and so no forfeiture by the Tenants denial Now from hence it must be concluded that for any Lord of a Manor to demand a year and a halfs Fine is the very utmost rigour and extremity of the Law as it hath flowed to us out of the impure fountain of Monarchy and all those who have exacted more have done illegal and unwarrantable Acts according to that Lesbian Rule But where Tenants have at their great charge made improvements as is above declared there for the Lord to take a year much more a year and half is altogether unconscionable and against the Rules of equity The Case of intolerable Oppression in point of Heriots A Copy-hold Tenant holds a 100. Acres of Land worth per annum 5 s. per Acre and 20 s. Rent yearly and for which the Lord claims a Heriot upon Death The Tenant aliens his Land to a hundred men now by our Book-Law made in corrupt times meerly in favour of Lords and to oppresse poor people the Lord of the Manor shall have his 20 s. Rent and besides a Heriot for every Acre upon the death of every particular Tenant for this reason which is no reason because a Heriot is an indivisible service so that it may so fall out that the Lord shall have Heriots in a short time to the value of one thousand pounds whereas the whole is not worth five hundred pounds and besides a poor man having an Acre of his Land not worth five pound and dying seised the Lord shall enter upon his Goods and take away for a Heriot a Cow or Horse worth six or eight pound to the utter ruine of his Wife and Children Now from a division of Land to urge a multiplication of Heriots hath neither antient Law reason nor honesty in it notwithstanding those slight Arguments and fond distinctions of Heriot Service and Heriot Custome which are used to the contrary REader these names should have been placed at the end of the 13th Page Col. Pride Aug. Wingfield Robert Cromwell Col. Potter Henry Arundell Nich Beale FINIS Vindiciae Medio-Saxonicae OR Tithes totally Routed BY MAGNA CHARTA IN A Reply to an Answer of Middlesex Letter and Petition in the latter end of a Tract called A Treatise of Tithes WHEREIN The Invalidity of

the said Treatisers Arguments are fully manifested and the said Letter and Petition clearly vindicated from Error and Mistake BY AUG WINGFIELD A Member of this present PARLIAMENT LONDON Printed by F.L. for William Larnar at the Blackmore near Fleet-Bridge 1653. Tithes totally routed by Magna Charta HAving perused a Treatise of Tithes penn'd by way of Answer to its Opponents by one as it is conceived of the long Robe we thought fit to give timely admonition that though he pretend to be a wel wisher to Religion and Propriety yet when he speaketh fair men believe him not for there are it is to be feared seven Abominations in his heart who though his Sophisticated Arguments be covered with deceit yet shall his wickednesse be shewed before the whole Congregation Prov. 26.25 26. In his Epistle to the Reader he discovers both his spirit and his pride censuring his Antagonists as clamorous malitious ignorants though perhaps in the judgement of unbiased Moderators more learned peaceable and more Evangelically spirited than himself But fearing lest his great Diana Tithes the Nursery of contention and strife should in these days of Reformation and restauration of publique Freedom and liberty like Dagon before the Ark fall to the ground and come to nought he hath therefore out of his worldly wisdom judged it very opportune both in reference to himself and also to his Clients the Tith-taking Priesthood and Impropriator in this extremity of time to force into his Aid a Catalogue of Acts of Parliament though to little purpose since few of them before the Statutes of H. 8. intimate so much as a right much lesse command the payment of Parochial Tithes to Priests or others as if this Respondent would make us all beleeve that Ubi nomen Decima ibi argumentum Decimandi that wheresoever in any Statute the word Tith is found there is an argument for Tithing though by his leave in some of them by him quoted there is not so much as the name * Mag. Char. c. 1. Marl. c. 5. 25 E. 1. 2● E. 1. c. But although he and his Tith-taking Brethren have a long time like Simeon and Dovi confederated together not only to make us ignorants but still to keep so by perswading of us and our fore fathers That Tithes were first due by Divine Law then by Canon Law and now by Statute Law yet are we and the good people of England resolved to be no longer deluded by them with their Paralogisms and deceitfull reasonings And therefore that we may no longer digresse by way of preface we shall now come to reply and to examine those two grand objections which the Author of the said Treatise raiseth against the Middlesex Letter and Petition in the Expository opening of those two Statutes of Magna Charta ch 29. and 1. R. 2. ch 14. where this Respondent saith pag. 13. That for the Penner of the said Letter and Petition to make the People believe that the payment of Tithes is against Magna Charta is such an exposition as was never made upon that Statute and therefore to rectifie this Errour as he calls it he hath laboured though in vain to overthrow the said exposition and those invincible arguments built upon it and to set up his own contrary interpretation and false affertion viz. That Tithes and the payment thereof by the people were confirmed by Magna Charta ch 1. under the Notion of Church rights And first for proof thereof he saith pag. 14. That by the Common Law of this Land at the confirmation of Magna Charta Ecclesiastical persons had remedy to recover their Tithes in the Spiritual Court and then concludes that the Law gives no remedy but where there is a right which assertion is very untrue For Cook upon Tithes saith That by the Common Law Lands are undecimable and if undecimable then certainly by that Law there can be no Church right to Tithes neither to be recovered by virtue thereof in the Spiritual or Popes Court Since the people of England were not bound in Law by his Cannons Neither is Cook single in his opinion For Selden fo 291 saith That Arbitrary disposition of Tithes used by the Laity as well de jure of right as the positive Law then received and practiz'd was as de facto of deed and practise is that which Wickleff remembred in his Complaint to the King and Parliament under R. 2. The substance whereof in brief is That the proud and pompous Priests did constrain the poor People of England viz. by Popish Canons to pay their Tithes unto them whereas within a few years before they paid their Tithes and Offrings at their own free will and pleasure Which is also attested by Ludlow a Judge of Assize in E. 3. who saith That in antient time a man might give his Tith to what Church he would which is true sayes Judge Brook in Abridging the case Selden fol. 252. And the said Author further saith fo 290. That under Innocent the 3d. it was usuall in fact for Laymen by the practice of the Law at that time both Common and Canon to convey the right of their Tithes as Rent-charges or the like to what Church or Monastery they pleased and such Conveyances were clearly good And whereas the Author of the said Treatise p. 14. quoteth Mr. Selden for his Authority of Parochial right he is clearly mistaken since Mr. Seldens judgement in the same place immediately following is cleerly to the contrary and that which is here alleged as the Treatisers main Argument is nothing but the opinion of the Canonists recited by Mr. Selden and by him in the same and following pages fully confuted pag. 144 146. Moreover Magna Charta is by Act of Parliament made in 25 E. 1. called the Confirmation of the Charters adjuged and declared to be the Common Law of the Land which if true as it is most true then Tithes being not so much as named much less confirmed by Magna Charta are not due by the Common Law as the said Respondent weakly supposeth and so not at all under Ecclesiastical cognisance But he objecteth and saith That Tithes are contained in these words The Churches Rights Mag. Char. cap. 1. for further satisfaction whereof see Cooks exposition upon the very same words where he saith that Ecclesiastical persons shall enjoy their lawfull jurisdictions and other their rights but not one word of Tithes without diminution and that no new Rights were given unto them hereby but such as they had before confirmed Now if no new Rights were given then not Tithes since the Author of the said Treatise confesseth p. 14. that the Common Right of Tithes due to the Rector of the Parish is but from the time of K. John and then as M. Selden whom he quoteth p. 146. declareth not so much as in opinion established whereby it is evident not onely by Selden and his own confession but also in the judgment of Gook that at

the confirmation of Magna Charta Tithes were not at all comprehended in the Rights of the Church Which will yet more fully appear if we consult Mr. Seldens book of Tithes and the Roll of Winten In the first whereof pag. 137. It is delivered for a clear truth that there never was any Canon of any General Council as yet found that purposely commanded payment of Tithes nor any that expresly supposed them a duty of Common right before the Council of Lateran under Pope Innocent the 3d. 1615 So that at the Council of Lateran which was in the latter end of K. John and but 12 years or thereabouts before the confirmation of Magna Charta by H. the 3d. Tithes were not due by common right that is by Common Law and so consequently no rights of the Church And if not then due by Common Law then certainly not at the confirming of Magna Charta since in the judgment of all both Canonists and Common Lawyers 12 years is not a competency of time either for custom or prescription the one allowing 40 years at least the other time out of mind And yet to proceed this Respondent doth further acknowledge p. 14. that there was no Parochial Right of Tithes till after the Council of Lateran aforesaid 1615. and that after the Decretal Epistle of Innocent the 3d sent to the Arch-Bishop of Canterbury in the year aforesaid the right of Tithes was allowed but you must know by whom viz. the Pope and his Clergy not the People and so became Lex Terrae a Law of the Land which are likewise the words and judgement of Cook Now of what force and validity a Right of Tithes grounded upon a Canon of the Pope and diametrically repugnant to Magna Charta can be let all men judge since Cook their Oracle hath declared in his Chapter of Tithes that all Canons which are against the Common Law or Custom of the Land are of no force Now as to the Roll of Winton called by some Doomsday Book which was a survey of all the Lands Revenues both of Clergy Laity exactly taken by Commiss in every County throughout the Nation and returned into the Exchequer about the latter end of the Conquerours Reign It is there Recorded in particular what the Revenues and dues of every Presbyter and Church were but yet notwithstanding very rarely if at all are any Tithes found among the Church Revenues So that bence it is most cleer First that in William the Conquerrors time Tiths were no Revenue nor rights of the Church nor yet Secondly in H. 2. his time see the Letter and Petition p. 5. And lastly by the Authors own confession they became due onely but from the latter end of K. Johns Reign and that grounded meerly upon a Popish Canon contrary to Magna Charta which is acknowledged by the Learned to be the Common Law of England both before and after the Conquest The second and last objection which the Author of the said Treatise maketh is upon our exposition of the Statute of 1 R. 2. cap. 14. which wee shall here make good to be most genuine and true notwithstanding his false calumniation and that his Anti exposition is most absurd and false and such as had not Custom wrought another Nature in him to speak and write untruly could never have fell from him Now the question between us is whether the Averment there spoken of be Lay Averment and so to be made by the Plaintiff according to his exposition or Church Averment and so to be made by the Defendant according to our exposition whether of which is most true we shall leave to every one to judge by opening unto you the Nature of Averment out of the judgment of the Learned and by holding forth such reasons as shall in brief be produced And first Cowells Interpreter saith That Averment signifieth according to the Author of Terms of the Law an offer of the Defendant to make good or to unstifie in exteption pleaded in abatement or bar of the Plaintiffs Act. And Sir Hen. Smith in his book of Law fo 359 also saith That Averments must be offered to be proved true in Barrs 1. Answers Replications Rejoinders c. but not in Counts andDeclarations And of the same judgment is Sir Edw. Cook in his first part of Institutes fo 362. So that it is evident Averments are properly to be made by Defendants in their answears or in after pleadings and not by Plaintiffs in their Declaration unlesse in some few particular cases of which this is none as is evident not only by the Grammatical and Logical Construction of the said Statute but even in the judgement of Learned Rastal a Iustice of the Common-pleas in Q. Maries days who to put the question out of doubt hath set it down in the margent of his Abridgement of the Statutes to be Church Averment which we conceive to be a final determination of the question And as to your Ordinance of Nov. 1644. for the payment of Tithes we clearly conceive it to be the judgement of all the learned that it is of no longer validity than during Parliamentary Session which is now dissolv'd upon sure grounds of Piety Publique freedome right reason and honestie and that notwithout the Generall consent of the major part either precedent or subsequent of the Supreme Authority the People Now by what hath been said it will easily appear who doth most abuse and mislead the People and whether exposition of Magna Charta and the other Statute of R. 2. is most true That of the Letter and Petition back'd with right reason and the Authorities of great Lawyers and learned Iudges or that of the Author of the Treatise being a fancy of his own brain and raised out of implicite Terms which he that believs had need of of a Popish and implicite faith FINIS