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
age when it was hard to keep all from reclining and relapsing to flat Idolatry For they had lately worshipped stocks and stones and given the immediate issues of their soules in their thanks praise and All devotions to the works of their own hands 3 The names of sundry Idols here worshipped before the Gospel enlightened And as the Pagan Romans made theirs praeside over the daves of the week whence Dies Solis Dies Luna Mercurit Martis c. So here they called the dayes from them if not more and we yet retain the memoriall thereof in Sunday Moonday Tuiscoâ—day or Tuesday Wodensday Thorsday Freaday Seaterday More appearance of truly evil then in some other things in jealousie branded for Idolatrous See Verstegan Antiq. pag. 10 11. pa 68 69 c. Tuisco Woden Thor Frea Seater 4 Herthus Suevorum Borealium Germanorum Dea perinde corum Anglorum qui cum Saxonibus Britanniam nostram applicantes nomen nostratibus reliquerunt Cultum immanitatem Deae refert Tacitus in Mor. Germ. Rendigni deinde Aviones Angli Varint in commune Hertum id est Terram matrem colunt camque intervenire rebus hominum invehi populis arbitrantur Stoneheng in Wilishire thought to have been a Temple to this Goddesse in plain English The Earth Vid. Spelm. Gloss pa 350 in Herthus Herthus Flint 5 Verstegan pa 79 80 Ermensewl 6 The Goddesse of Hunters and Falconers worshipped at Rihall in the edge of Rutlandshire near Stanford vid. Caâ—â—den Britan. in Rutlandshire Another place of note for like worship whereto was God â—â—anham in Bede's time Godmundingham near Beverley in Yorkshire by the priest thereof Coyefi profaued and delivered over to Christian worship id pag 702 S. Pauls in London was dedicate to Diana some Houses adjoyning are called Dianaes Chambers yet The Church of Westminster to Apollo id in Middlesex God blesse uâ— I shal we ever live to fear the return of these Banished and forgotten Idols to their native homes Or the removall of what fast kept them out being banished give cause of that Fear Tibba 7 Or Oster a Goddesse giving denomination to the Month of April called by the Saxons Oster monat we yet retain the name of Easter thence hapning usually in that month Eoster and such other sometimes worshipped for Gods and Goddesses here whose names are now either almost happily forgotten or if remembred not very easie to be understood But it seems the Holy Christian Swithune joyned in with his formerly pupill now Lord and King to keep him close in him vertually and potentially All to the heavenly teaching of the Bible and that the doctrine thereof might continue they added this pillar of worldly maintenance the having a hand wherein might procure Swithune so reverend an estimation in Christians memories ever since according to the patern in the mount their guide Levi of the Old Testament To sustain and provide for the Preachers and Ministers thereof And God so blessed that as that gift has remained sacred and inviolable hitherto so by it the ministration and Ministers of sacred Christian Mysteries have had a subsistence ever since and endowed preachers been as so many Candlesticks then set up which resting on this pillar have held forth that light of heaven which yet we enjoy to this present day Future superstitions may have made unnecessary additions and the honour justly given to the memory of this good man for a work so gloriously deserving in the name and reputation of a Christian Saint have contracted after rust and blemish by the zealous ignorance of times and men who not content save to overdoe nor esteeming reverence any thing without worship and adoration thought the Saint not enough unlesse he were advanced higher to the name and reputation of a Divus or petty-God and so partaking now in nearnesse of kinde as well as name with his Soveraign must not wait any longer about the footsteps of the Throne but be lifted up to sit higher on some lower seats of honour with his maker which cast a blemish on the very Purity of heaven and as one said made the Christian world begin to be ashamed of nothing more then of her Saints which were indeed the honour and glory of the world But howsoever the work was gracious and glorious of wonderfull influence to the piety of all following times such as may speak it self accessory to much of the practised publick Worship that hath been exercised ever since to Christ his honour in our land and hardly to be parallelled by any act of equal dimensions save perhaps the contrary work of darknesse if mens covetousnesse should be so far hearkened to in with-drawing this support in order and preparation to the destruction of Religion it self and bringing Apostasie to that we had before Tythes were paid Tuisco Woden Thor Frea c. or if these be forgot taking up that is nearer hand and known the sensuall dreams of Mahomet though such 1 Which they may have from the Mosaical law Selden Hist of Tythes c. 3 sect ult Ioan. Baptista Alfaqui who had been a Mahometan priest sayes 't is one of the â—reat sins whereof the two inquisitour Angels examine souls after death Whether they have paid Tythes duly Paget Haeresiogr in the Postscript The dreadfull manner is set forth by M. Pâ—rchas lib 3. cap. 12. p. 304. Edit 1614 worshippers pay their Tythes duly or indeed no one can foresee probably what And if these be not the dreames of some troubled minde but the sober and well-advised thoughts of one jealous for the honour of His God not the melancholick muses of some distempered fancy but the calm and well-composed serious consultations of one tenderly carefull and tremblingly fearfull about the honour of his beleeved Saviour and Redeemer prudently casting what may be yet providently fore-casting it may not be and yet but reasonably doubting too what is like to be grounded onely on rationall conjectures and accompanied with manly feares lest Christ his name should be wiped off from the earth His honour disparaged His worship undermined His faith destroyed and Himself forgotten where he hath been worshipped for a God It would then be thought on again and again by all those who pretending to worship Christ can think of undoing his Ministers and in or with love of the Master give themselves leave to doubt whether they may strip of their Own his Servants that doe his Publick work leaving Religion as naked as in the day she was born here to be covered by meer Charity of the Parish or provided for by some slack and slender weekly allowance And then which cannot come a worse mischief intrusting the Religion of the most High God and its stability to the tottering contributions of fickle Men who if they be of one minde to day may be of another to morrow what now they love then loathing and always esteeming their wealth dearly cannot but be
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
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-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
but de Jure of the right which has not alwayes taken place in action for good Laws have not alwayes had the good hap to conveigh so much felicity to the world as they might by being throughly and fully Obeyed but in the following he comes home Chap. 10. He 2 Pag. 278. acknowledges some payment under the Saxons by K. Knouts letter yet extant or if not punishment Many Churches under the Conqueror are 3 Pag. 280. marked with Ibi decimae in that most authentique memoriall of our Nation or perhaps this part of the world the book of Domus-Dei as in Sussex Hampshire about Basingstoke c. though this neither generall nor common then Other 4 Pag. 282. evidences of dueness and payment are under Hen. 1 Hen. 2. and to them And now they began to settle A parochial Right is 5 Pag. 283. acknowledged and supposed by Alex. 3. Hadr. 4. in their Epistles hither treating of them they lived about the beginning of Hen. 2. and it were somewhat hard to disbelieve in matter of fact such and so solemn asseverations and depositions But about Edw. 1. a parochiall right is granted by himself evident from the Stat. of Circumspecte agatis and the writ of Right of advowson of that date where the Esplees are chiefly laid in Tythes 6 Pag. 285. And by the practise of the Kingdom it became clear law as it remains also at this day he says that Regularly if no other title or discharge to be specially pleaded or shewed in the allegation of the defendant might appear every Parson had a common right to the Tythes of all annuall increase prediall and mixt accruing within the limits of his parish without shewing other title to them in his Libell After giving other things as of Cornwall from Chaucer c. He 1 Pag 288. concludes plainly the received and acknowledged Parochiall right in the practise of those times which hath to this day continued Neither is it necessary to adde more for the uniform continuance of it Save where a Statute hath discharged or a Modus decimandi which being Discharges doe clearly presuppose and imply one ration And this being a Lawyer he says is Regularly clear Law Some curiosities there follow and judicious usefull needfull disquisitions but so as nothing impeaches a full and universall Parochiall Right setled nine half hundred years agoe even by his concession And he hath been generally taken to be no great favouring friend to what more then needs he must grant in the Churches behalf though in this particular I never held him injurious or undeserving With his grant taken to be most sparing he howsoever grants this and this to our purpose Enough He avers moreover Chap. 11. that 2 Page 362. after Innoc. 3. time all lands paid according to the Canons and therefore no other title was made by the Archdeacon of Lewes to the Tythes of Barrington then in demand then that the Land lay infra limites Parochiae suae de Barenton chap. 14. giving the history of their Jurisdiction tripartitely into 1. that was before the Norman 2. to Hen. 2. And 3. since he has enough to the same purpose the minde whereof having been given before needs not to be here repeated again And these things at home are agreeable to what was abroad as cut out by the same rule for as times then were the Canon sate over all which how it discharged it self was shewed 3 Page 167. before Chap. 7. for Parochiall payment by the obeyed Decretals 4 Cap. cum contingat tit de lecimis Decret Gregor l. 3. Quia perceptio decimarum ad parochiales Ecclesias de Jure communi pertinet as the reason is given in case of new broke grounds and the action accordingly was Jure communi fundata intentio that is by common right Tythes praediall and mixt were due to the Parish Rectour if they were not by some speciall title enjoyed by some other Church or discharged by Canonicall exemption sect 1. for they were not so much given or granted by the Owners as then supposed or exacted or expected of or from them by vertue of any act of theirs as to concession of the right at first or after delivery As they had been Reserved by God at first at the grant of all in signum universalis dominii quasi quodam titulo speciali sibi Domino decimas reservante as the Law speaks Never making the right out of himself that it might return As a load of Hay a Mine of Lead or other Mettall belonging to the Lord is not so much a due issuable out of that land he hath let to his Tenant as a reservation to himself at first when the Land was let and he parted with the fruit of the ground or as if the same Lord cuts his wood or timber and carries it away from his tenants land His tenant Pays it not but gives way to the taking of that was always excepted and reserved Or as no Mannour or Parish ever laid out any Kings high-way but the King alwayes kept it for his other subjects out of the grant from himselfe So I say God reserved the times seemed to take things so the tenth as his part never parted with and as his Own somewhat like a quitrent it might be seized on Jure communi without any order or Act of man by vertue of primary exception or reservation And according to these things the Rector in his libell Page 151. upon the allowed Actio Consessoria needed propose no more then that the demanded increase arose within his parish the rest would follow Which action if Durand disallowed grounded upon common right supposed and approved rather of a Condictio ex canone by some positive made law not by generall right but Statute-Canon-Law or agreed on Constitution this is all one to my purpose and for an allowed granted right in those days which is all I seek for Of what is behither trusting to any that pretends to know I need say nothing All this from one man yet living and worthily of fame enough for learning not confined by our own seas nor scarce Christendome Neither can â—e but know and I beleeve will be ready to averr many times more in this case that if homage were paid to the earthly Lord rents or services to the publique or any thing to any man this signum universalis dominii was still allowed to Religion of more publique and nearer inward concernment then any thing else even to Gods house who is supreme Lord of All and his publique service neither may his Ministers but prescribe long enough for it Numb 18. 21. as due under the notion of equivalent to what was Levi's under the law Behold I have given them the tenth in Israel 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for their lot for their service which they perform in the tabernacle of the congregation But now steps forth Doctor Tildesley Animadversions on
hath nothing to give for what he hath was given Deo Ecclesiae who are the proprietaries he but the usu-fructuary and so cannot dispose of anothers For to whom 1 Flet. lib. 3. c. 4. sect 1. pag. 179. Bracton ubi supra To any one Bond or free Minor or of full age Jew or Christian But not to a wife not 2 Quibus dare inhibetur Fleta lib. eod cap. 5. Magn. Chart. c. 36. to the Church in Mort-maine except by license for every thing is to be kept within its due bounds and a proportionable equality is like to be the Mother of longest duration A monstrous growth tends to the sooner ruine of it self or the whole and therefore in its favour it is provided the Church may not spread too big lest pondere pressa suo it fall with its own unweildiness Lastly What may be given what is Corporall or in visible a possession or a right a whole or a part but not what is 3 Nullius autem sunt res sacrae religiosae sanctae Quod enim divini juris est id nullius in bonis est Instit 2. de rerum divisione sect 7. F. â—ib 1. tit 8. lib 2. sect sacrae Bracton lib. 1. cap. 12. sect 8. Extra patrimonium verò res sacrae Communes Fet. lib. 3. cap. 1. sect 3. no ones as is every thing sacred This is supposed out of every ones reach 't is no bodies on earth and so none can lay 4 Item donari non poterit res quae possideri non potest sicut res sacra vel religiosa vel quasi qualis est res fisci Bracton fol. 14 hand of it to give it forth to another CHAP. VIII THese things may seem needfull to have been pre-considered of gifts to the intent what follows may not seem to have crossed the generall Doctrine Among particular instances whereof to our purpose A little before the year after Christ 600. begin first with the head that which was to Augustine or in that Augustines time whom some love to call the Apostle of the English men who found most of this English part of the Isle as Barbarous as the whole is like to be when covetous men may save this expence We censure not what the grace or power of God can do but in likelyhood what he will Miracles are not to be multiplyed without cause nor he to be put out of his ordinary course of By-causes according to which we are likewise to expect and judge that will be in humane probability is by them Like to be He then found here the land dark as Sodome the souls of men over-spread with Atheism and Idolatry and no truth or knowledg of God which he divulged successfully and took care or the blessed Providence of God brought to pass that the Vine and the Elm were planted and have grown comfortably together Christian Religion and this acknowledged good support thereof being by one and the same Hand here planted and rooted and as they were born and have lived if any be God grant as Twins they be not taken away together also But whence does this appear we should gladly have taken it up from Bede or Malmsbury or any other creditable story but we have it from what was more authentick the most substantiall credit of a solemn law By all mens leave This shall be more creditable then any private Mans words what is planted and shining in any publick past law being less subject to forgery and subornation then any single simple mans Testimony whatsoever In King Edward the Confessors Laws then thus we finde Of all 1 De omni annona c. The Latin is after transcribed pa. 79. Corn the Tenth sheaf is due unto God and so to be paid And if any keep Mares the Tenth Colt but if he have but one or two so many pence So if any keep kine the Tenth Calf or if one or two so many half pence He that makes Cheeses the Tenth or if not the Tenth days milk In like manner Lamb Wooll Sheep Butter Pigs of all the Tenth The tenth also of the commodity of Bees and of Wood Medow Waters Mils Parks Ponds c. the Tenth to him that gives both Nine and the Tenth He that detaineth let him be forced by publick Justice so I interpret that called there the Kings and the Bishops because their powers were then represented together to confirm both ways Civilly and Ecclesiastically for so preached and taught blessed Augustine and so was granted by the King the Lords and the People Thus far that solemn Law the authority of whose testimony we shall 2 Vid. pa 90 91 c. hereafter more fully set forth when for the sake thereof we shall shew the whole collection to be one of the ancientest pieces of the Common law so often called for by the people confirmed by the King and entred into the Coronation Oath c. In the mean while by all the credit this testimony can give Augustine preached Tythes the People believed the King and Parliament granted for what can be less meant by Concessa sunt à Rege Baronibus Populo and under the specification of Colt Lambs Fleece Corn Milk Honey and most particulars claimed Let no man take advantage by thinking me so unadvised as to suppose Parliaments so early under that name which I know came in long after and whatsoever should carry that title applyed in strictness to any thing beyond a good way in the Norman times I should suspect it for Counterfeit but that Publick meeting which had the power and vote of the Land consisting of the Head and its subordinate Members call it Senate Gemote Court Councell or whatsoever else the Collection and Congregation of the Land granted this Object I know well what may be said to the contrary as that Bede who lived soon after and reports that story of Conversion at large Vid. Hist Eccles lib. 1. cap. 26. in fiu cap. 27. Interog 1. and is most authentick for those times and the following sayes nothing of any such thing not when he had just occasion so to doe for he speaks both of Augustines entertainment a few lands and his sending back to Rome about Church-maintenance in generall and how it should be divided but not a word of TYTHES Whereunto I answer True this but what then Answ 1. Negative testimonies are the weakest of proofs upon the matter no proof at all as silent witnesses that say nothing If Bede had said any thing we should have much listened and that whether he had spoke against or for us but saying nothing he is but a mute and no more to be regarded strictly then he that is called comes in and is silent 2. As to his yet mentioning other things neer the time of both was but when yet things were raw when he had not preached nor the people beleeved or in reward setled what they may have afterwards Time does
sole Monarch which ever since through ages hath to this present remained These things prepared as was said for the uniformity of any work to have its extent and operation upon All and being remembred makes way for that Donation which heed is Hire given under that name Other before may have had the substance but they had not the proper term this both name and thing under the title of Celebris illa Donatio Ethelwlphi Which what it was take information first from him that had a great hand in preserving the Common-law from the spoiles at the Conquest and lived neer those times Ingulphus The most noble King of the West-Saxons saith he Ethelwalph Inclytus Rex Westsaxonum Ethelwulphus cum de Roma ut limina Apostolorum Petri Pauli ac sanctissimum ipsum Leonem multa devotione una cum juniore filio suo Alfredo peregrè visitaverat noviter revertisset omnium praelatorum ac principium suorum qui sub ipso variis provinciis totius Angliae praeerant gratuito consensu tunc primo cum decimis omnium terrarum ac bonorum aliorum sive catallorum universam dotaverat Ecclesiam Anglicanam per suum Regium Chirographum confectum inde in hunc modum when he had returned from Rome visiting with his son Alfred the habitations of Peter and Paul c. by the willing assent of all his Prelates and chiefes that under him were over all the Provinces of England had then first indowed All the English-Church for some peices had been before but there wanted a Soveraing power or the union of the parts to extend this good work over All with the Tythes of All lands mark the extent again and other goods or cattles Regnante domino nostro in perpetuum dum in nostris temporibus per bellorum incendia direptiones opum nostrarum nee non vastantium crudelissimas hostium depraedationes barbararum paganarumque nationum multiplices tribulationes ad affligendum nos pro peccatis nostris usque ad internecionem tempora cernimus incumbere periculosa which he did by his Royal Patent thus Our Lord Christ raigning but we tossed up and down c. wherefore I Ethelwlph King of the West-Saxons with the advice of my Bishops and Princes Quamobrem ego Ethelvulphus Rex Westsaxonum cum consilio Episcoporum ac principum meorum consilium salubre ac uniforme remedium affirmantes consensimus ut aliquam portionem terrarum haereditariam antea possidentibus omnibus gradibus sive famulis famulabus Dei Deo servientibus sive laicis miseris semper decimam mansionem ubi minimum sit tum decimam partem omnium bonorum in libertatem perpetuam donari sanctae Ecclesiae dijudicavi ut sit tuta munita ab omnibus secularibus servitutibus imo regalibus tributis majoribus minoribus sive taxationibus quae nos dicimus Winterden sitque libera omnium rerum pro remissione animarum peccatorum nostrorum ad serviendum Deo soli sine expeditione pontis extructione arcis munitione ut eo diligentius pro nobis ad Deum sine cessatione preces fundant quo eorum servitutem in aliqua parte levigamus Ingulph resolving on some wholsome remedy have agreed that some portion of my lands formerly inheritable by whosoever should now as to the tenth of the whole be set aside for thâ—s I conceive to be the sence the words scarce affoording any but by comparing other accounts this seems the thing meant for the servants of God and a like tenth part of my goods for the Church so free that it yeeld no secular service nor tribute more nor less nor Winterdene or Witterdene a kind of imposition but that it be devoted to Gods service alone that the possessors may pray so much the more diligently for us as they have fewer occasions to disturb them This was done at Winchester in S. Peter's-Church Anno Dom. 855. present and subscribing all the Arch-Bishops and Bishops of England and Beorred King of Mercland Edmund King of the East-Angles and a numberless number of Abbats Abbesses Dukes Earls and Chiefs of the Land and other approving beleevers And the 1 Rex verò Ethelvulphus pro firmitate ampliore obtulit hanc chartulam scriptam super Altare sancti Petri Apostoli Episcopi pro fide Dei illam acceperunt per omnes Ecclesias posteà transmiserunt in suis parochiis publicandaÌ„ Ingulph ubi sup sect 6. Charter was offred upon the Altar and there received for more religious confirmation This I take to be the sence of what was there done 2 Ad anno 855. Matthew Westminster 3 Gest Reg. Ang. lib. 2. cap. 2. William Malmesbury Ethelward and others give several accounts but tending this way and so great consent is in substance though variation in expression that no one can doubt some such thing was done men so much varying yet agreeing to report No one undertakes to make good all of every thing he makes use of and here was interspersion of Abbots and Abesses offering at the altar with Saints and Angels interessed and the Virgine Mary but such commixtures do we know no more invalid the strength is adjoyning good and sound then the like in Magna Charta or the most of all ancient Parliaments or some dispersed spots in the Common Law He that shall once give his busie humor leave to work and question things sufficiently done by some infirming circumstances will soon leave little enough of approved firmness by the same strict rule of estimation anywhere no not of those foundations whereon are raised and stands the stability of the chief worldly things we here injoy This is sure the grant was made and let the injoyed benefit speake the fruit to our time the providing for a helpless Church and it should seem so firm it needed not be again nor was after for 't is observeable the stile henceforth changed and men do now no more Grant but Confirm nor had they need Part with so much as Assure nor voluntarily Give but yeeld to Pay Which we shall observe as we go along In the mean while as to the doubtful words various hath been the construction and learned revisors have not all found the same thing in them 1 Chronic. in the life of K. Ethelwolph pa. 99. Jo. Stow takes it to be a parcel of land 2 Animadversions on M. Seldens History of Tythes cap 8. pag. 173. Doctor Tildesley contends for it by six reasons Sir Henry 3 Concil Britan. tom 1. pag 352. Spelman inclining thitherward knows not where to finde the benefit save in the parsonage house and glebe though it may be well enough thought how they came in afterward and otherwayes 4 In his History of England in the life of this King R. Hollingshead slubbers it over with a right or liberty from burdens to tythes so 5 He ordained that Tythes and Lands due to holy Church should
be free from all Tributes and regall services Speed hist lib. 7. cap. 32. sect 6. tythes Then in his acknowledgement were 6 Martyrolog lib. 3. pa. 136. ad an 844 in the life of Ethelwlph Mr. Foxe somewhat faintly the tythe of the Kings lands and goods in West-Saxon-rick with freedom from Servage But a 7 Ier. Stephens in pag. 132. of Sir Henry Spelman of Tythes late setter forth of a very learned and pious tract of this argument alledgeth it for a perpetual right of tythes and above All 8 Mr Selden in his Hist of Tythe cap 8. pag. 206. he that had compared most accounts and was as well able to judge as any and now after neer thirty yeers of painful and succesful study is yet living and ready no doubt to make good his constancy and justifie his opinion then published and not appearing yet revoked makes it out clearly for a right and law of tythes His words are these If we well consider the words of the chiefest of those ancients that is Ingulphus we may conjecture that the purpose of the Charter was to make a general grant of tyths payable freely and discharged from all kinde of exactions used in that time according as the Monk of Malmesbury and John Pike in his subplement of the History of England express it Decimam say they omnium hidarum infra regnum suum a tributis et exactionibus Regis liberam Deo donavit that is granted the tythe of the profits of all lands free from all exactions For the granting of the tenth part of the Hides or Plowlands denotes the tenth of all profits growing in them as well as Decima acra sicut aratrum peragrabit which is used for the tything of the profits in the Laws of King Edgar Ethelred c. and doubtless Ingulphus no otherwise understood it then of perpetual right of tythes given to the Church where he remembers it with tunc primo cum decimis c. So that the tythe of prediall or mixt profits was given it seems perpetually by the King with consent of his States both Secular and Ecclesiastick and the tyth of every mans personal possessions were at that time also expresly included in the guift because it seems before that hitherto that learned man the payment of all tythes had commonly been omitted Not so neither for what was then the operation of those weak and yet intended strong and powerful Canons before mentioned made with so good advice and strengthened with the twisted powers of both States in Mercia and Northumberland besides what in Kent a Rege Baronibus Populo But for All the land it seems none before had power of imposition and for West-Saxony none had attempted for the King that was present at opening of the letters we found not there at the conclusion of the businesse 1 Pag. 70. before So that Tunc primùm for this and for All together the decree might go forth here successefully and the liker it did for that as before we read of no more Donation but Confirmation no need to Settle after but order as was said to Pay So that considering the power was then vested in the Monarch-granter and also the consent of Tributary and as it were pupil-Kings with Nobles Peers and all their people Consider likewise the interpretation of dark words by those whose inspection was like to pierce deepest into the meaning of what was delivered or is perplexed with obscure expression And after interpretation fairly setting of such a purpose we need not doubt to conclude That so long agoe as those remote times about 800 years since above 200 before the Conquest even then when the Common Law was but in her swadling-clothes whereof little hitherto if she were then born as I beleeve she was Even then and as soon and fast as we may believe the power of Christian Religion to have had its work in the bosome of beleevers to make them contrive a continuall and setled support for their soul-saving new-come Gospel Tythes had a publick vote which created a legall Right And though I will not say All was done accordingly and the objection of after Arbitrary consecrations possible in some sense may take place in their way notwithstanding yet as farre as Law may create a right Then were Tythes no longer a part of Benevolence and Bounty but of distributive or retributive Justice every one living within the compasse of the Church being bound to pay back this support for the Ministery thereof in fulfilling those generall Canons of the New-Testament that call for maintenance and would not have the labourer uncertain of his reward but the Oxes mouth unmuzzled to take thus much and the Catechist to partake with the Catechumene in all his goods For we are not to look upon Regall and Legall commands as empty Cracks fit onely to fill the world with noise and clamour and exercise the chat of the busie multitude or learned mens discourses but Canons well mounted which being discreetly levelled also are able to make their way through whole squadrons of opposing Rebels to Law and Justice of that irresistible power that though private men would they cannot contradict evade or gainsay As being those words of publick vote and highest authority that if they say Yes will have no Nay The most serious disputes and results of Reason that are extant amongst men and that have this soveraign property always annexed to them That they of all other look not to be Disputed but Obeyed Lex est sententia qua bona tum praecipiuntur tum mala prohibentur sayes Jo. Lexie Iurisprud pa. 526. in vocab Lex Calvin Jus est authoritas seu facultas agendi secundum legem Justitia est virtus perducens ista ad exercitationem Proinde quoties audis has voces Lex Jus Justitia statim cogita monente Oldenb te divinum aliquid atque excelsum audire hoc est veram à Deo ipso dictatam honestatis formulam Almost the voice of God and not of man as if they were Neither is one thing more to be omitted who was present and assistant at this great work Him I take the world to have since owned and remembred by the reverencing name of 1 Vid Spelm. Concil â—om Eod. pa. 349. St Swithune formerly the Kings Christian Tutour now his Chaplain Bishop of Winchester and 2 For the King was committed first to the Care of Helmestan Bishop of Winchester and by him consigned over to Swithune Heimestan dying he was made a Deacon and elect if not Consecrate Bishop of Winchester and thence resumed to the Crown Speed Hist lib. 7. cap. 32. sect 1. subdiaconatus ordine initiatus Polyd Virg. Hist lib 5. pa 91. Vid Stow. Chron ad an 829. Hen. Huntingdon lib. 5. pag. 348. successor of the King himself in that See blessed by God to keep the Kings heart and the state of the Re-publick firm to Christ in that tottering
nec ad sinistram dâ—vertentes legum suarum consuetudinum sancita patefacerent nihil praerermiâ—ttentes nihil addentes nihil praevaricando mutantes A Legibus igitur sanctae matris Ecclesiae sumentes exordium quoniam per eam Rex Regnum solidum habent subsistendi fundamentum leges libertates paces ipsiuâ— concionatisunt dicentes The first Chap. After the Conquest of England the said William in the 4 year of his reign by the advice of his Barons caused through all the shires of England the Nobles and other the 3 Omnis Clericus c. Lambard Arch. pa 138. Spelman Concil pa. 619. Wise-men and Lawyers of the Land to be summoned that of them He might know what their Laws Customs were 4 See M. Seldens Review of Cha. 8 Of Tythes pa. 982. These being met twelve of every shire and having first taken their Oaths to deal sincerely not turning to the right hand or to the left adding nothing detracting nothing changing nothing began with the Church Quoniam per eam Rex Regnum solidum subsistendi habent fundamentum Because this was the Basis and firm settle whereon all the Rest was seated and her Laws and Liberties were they say as followeth 2. Let every Clerke and Scholar and their possessions wheresoever have the peace of God and the Church And so on to the eighth Chapter for every tenth sheaf tenth fole tenth fleece c. as before which is the 5 And the same limb is also of the same body but under another head as if the whole composition were Glanvils in Hoveden Annal part post pa. 600. particular Law we seek for here That which might occasion this strict Survey may have been when he saw what was to superinduce or conjoyn his Norway orders 6 Proferebat enim quod antecesso es ejus omnium Baronum ferè Normannorum Norwegienses extitissent quod de Norweia olim venissent Et hac authoritaâ—e leges eorum cum profundiores honestiores omnibus aliis essent prae caeteâ—is regni sui legibus asserebat se debere sequi observare Lambard â—bi sâ—pra â— 149. Vid. Spelman Glossar pa 4â—6 Chron. Lichfeld apud Lambard pa 158. As well because they were his and he was willing to govern by his Own as because they were better and honester as he pretended But chiefly for that their admission 7 Selden ib. pa. 484. would have removed one rub which lay in his way and hindred the evennes of his path to the Crown by succession which was his unfitnesse thereto by reason of his illegitimation which as Laws were here under the Church scarce left him in a succeeding condition to his Cousen Edward for he entred not meerly by Conquest whereas the Northern were in this regard more pliable and favourable But when 1 Quo audito mox universi compatriotae Regni qui leges edixerant tristes effecti unanimiter deprecati sunt quatenus permitteret sibi leges proprias consuetudines antiquas habere in quibus vixerant patres eorum ipsi in eis nati nutriti sunt quia durum valde foret sibi suscipere leges ignotas judicare de eis quas nesciebant Rege vero ad flectendum ingrato existente tandem eum prosequuti sunt deprecantes quatenus per animam Regis Edwardi qui sibi post diem suum concesserat coronam regnum cujus erant leges c. Lambard Vbi Supra the people heard hereof their rage was up presently their swords by their sides and spears in their hands beseeching they might not be ruled by they knew not what and when he denyed reinforced their bold requests conjuring him by S. Edwards soul who left him the Kingdom and this was a part of his title glanced at before and whose the so much desired Laws were that he would not force a yoak on them they were not able to bear and like to gall their necks so much the more because they knew not how neither to wear it This he had in part 2 Vid. Thâ— Spot prout citatur in Glossar ad Lambard Arch. pa. 222. in vocab Terra ex Scripto Speed Histâ—r lib 9. cap. 1. sect 8. in Wil. 1. promised before to the two greatest of the Hierarchy of Canterbury before they would lay down with their boughs their swords but soon forgat his words as Conquerours use to do But howsoever now no remedy He must yeeld and did once for all Thomas of Cant. and Maurice another Bishop writing them out with their own hands and so they were taken up Decima Deo debita with the rest and they shall be now observed for ever Such they may be it is harder to conquer Laws then Men and rooted usages having had time to spread and like may contract such a kinde of Connaturality with the place by consent that though a generation of men may be cut off These will not I will not say There is a Climatical fitness and in such a place some love to grow As of other things There do influences produce and cherish what being There prospers being Away languishes being removed sighs out fainting desires to return like the Vine that by the Elme thrives best yea mutually they cherish each other or the plants of Trinacria which when that Island was cut off from Italy as ours thought from France reclined lovingly back to the place from whence they had been taken No 1 Nullum ibi reptile videri soleat nullus vivere serpens valeat Nam saepe illò de Britannia allati serpentes mox ut proximante terris navigio odore aëris illius adtacti fuerint intereunt Quin potius omnia penè quae de eadem insula sunt contra venenum valent Denique vidimus qu busdam à serpente percussis rasa folia codicum qui de Hybernia fuerunt ipsam rasuram aquae immissam ac potui datam talibus protinus totam vim veneni grassantis totum inflati corporis absumpsisse ac sedasse tumorem Beda Eccles Histor lib. 1 cap. 1. poisoned thing they say will live in Ireland Creatures their very nature is 2 The Indian Ounees What be they but extract from the Cats of Europe Spanish dogs in New Spain in the second Litter do they not become Wolves Good Melons transplanted into a base and barren ground tâ—â—n quickly to ordinary eâ—cumbers So there in Caâ—mannia the Iackals may be of the dogs of Europe by diversity of air and soil varying in speâ—ie from that they were formerly Herb Trav. pa. 124 in Carmannia troubled and they like to degenerate when they change soil and climate Some Northern Beasts are reported to alter in time removing to the South and when from us to any other Countrey against reason yet more As things may not then Laws naturally love some Countreys desire to be there prosper in that Region best and thitherward therefore recline being
among the Charters thorough them and to the last and Great They now with ease and pliableness enough come along and have a place in the Petition of Right where That was owned sufficiently and as many Ratifications as there were intercedent even Parliamentary so many-must be acknowledged to fall in by the way at least by implication Hither Of that great Law of Tythes I mean which having so fair and eminent a place in K. Edwards must also have as full and frequent a ratification all along in that bulk of laws so ratified which justly occasioned this Narrative And by it we see a a part of that strength the Law of Tythes hath on this side the Conquest even in the Common Law still by that it was part of it at first and a very remarkable part of that is taken to have been the foundation and first rise of the beginning of the Common Law and since hath as now been seen allowed and approved with it all along with impetuous rage and violence called for by the people of the land and they would never be quiet but under this Regiment or without these beloved orders whereof Tythes were a considerable and eminent part If they had been pressed upon them by those were interessed by profit or the tyranny of command from above had settled or kept them upon their weak and declining shoulders as unwilling as unable to bear Reason would there should be at least some more colour of strugling to free themselves from the force and their hands have leave to loose their necks from the yoak of unjust imposition But sith they desired them bespake them contended for them and would not be denyed but fought that they might pluck and keep that Burden upon themselves what can be more equall then that as their own act binde themselves so their inheritours and successours also and that whether to gain or to losse yea to losse as well as to gain they stand to them and every good man with his own whether Act or Right sit down and Rest satisfied and very well contented Most things indeed finde some opposition few are so happy to escape altogether free and some Persons may perhaps think good to doubt of All here As whether these references dispersed and represented as before point to King Edwards Laws or some other which latter If All hitherto would seem beside the Cushion But in answer would be considered 1. That no such thing appears as mis-application neither are other with much probability suborned in their place 2. The title the old title and that from as far as Roger Hovedens time speaks for them and plain Hae sunt leges boni Regis Edovardi c. 3. Divers passages alledged glanced at and extant beside can hardly be understood but to contribute the strength of their Testimony this way 4. To this also the likeliest guides have led us M. Lambard in his Edition M. 1 Hist of Tythes cha 8 pa 224. Selden in his Allegations 2 Animadverson that Chap. pa. 164. D. Tildesley 3 Concil Tom. 1. p. 620. and of Tythes chap. 27. pa. 131. Sir Henry Spelman 4 View of the Eâ—cles Laws Par. 3 chap 2. sect 1. pa. 141. Sir Tho. Ridley and of late 5 In his late Eâ—â—dition of M. Lambards Archaâ—on Anno 1644. D. Wheloc of Cambridge Could all have been mistaken Were they all in the wrong Shall we take in a point of doubt the whole world of Learned men to be nothing else but a flock of sheep wandring from the truth themselves and leading others unto errour that follow them Take what we finde They are generally reputed His clearly styled His have continued to be reputed and styled so long enough and nought appears clear to the contrary and Why Then may we not Therefore embrace them for His and Genuine crediting the voice of the world Which how and why taken into the Coronation Oath we may by these things as they were in part also conjecture But of this hereafter or as shall be occasion In the mean time of them and of this Branch of Tythes in them Thus much CHAP. XVIII STEP we next into the Church but by degrees and taking in some such things by the way as could not have found so fitting place elsewhere As namely 1. Remembred be it that Tythes were payed under the Conquerour They were so For as well 1 Chap. 10. pa. 279 c. M. Selden hath it in divers particulars from the most authentique account of this Lands Survay represented in Domus-Dei Book others agreeing and enlarging his proof As 2 Ad An. 1074 pa. 8. vid. Selden ad Eadmer Histor pa. 168. And for after see the complaints supposing payment in Iohn of Chartres De nugis Curial lib. 7. cap. 21. Matth. Paris consents in thus relating a dismal Tragedy acted under William the first about forcing Priests from their wives They saith hee the Priests grew scandalous the people rose up against thâ—m Lay-men fell aboard with the Sacraments Any would administer Baptism and then went Tythes to wrack Decimas etiam Presbyteris Debitas igne cremant They acknowledged their Dueness but of malice they set them on fire loth the scandalous married Presbyter should have any good by them and yet afraid it seems to meddle with them for common profane use And they that did so in the next words we find treading the Sacrament under their feet 2. Own as about this time owned that Law of K. Edgar avowed after by K. Knoght or Knout and 3 L. Hen 1. câ— 1. among the additionals to M. Lambard whereof before pa 84. pa. 8â— now renewed by the Norman Hen. 1. for rule penalty and order for execution And this here assured from the best means of information a double entry thereof in the Exchequer Book among the fairest testimonies extant of the Land 3. Adde not mentioned before that which resembles a Parliament in the same King Hen. 1. days assembled at Westminster about the beginning of his Raign where for stating divers things then raised in doubt among others was ordered 1 Eadmer Hist Novorum lib. 3. pa. 68. Thus Vt decimae non nisi Ecclesiis dentur Let Tythes be paid to none but Churches Supposing their Dueness but limiting to whom they should be paid They might Not but to the Church Therefore There they Might else the supposition had been a vanity and the publick voice said as good as nothing Darkness seems to be over the meaning or what should be the import but light may be borrowed from the state of things then about and I conceive of it and them thus Then was not onely started but in a warm Câ—afe the great doubt between the Secular Regular States about the due and immediate Receiver of Tythes not the Dueness but the Due receiver and the claim parted between two the Church the Monastery The last might have heard 2 Serm. de
all and every person which hath or shall have any Beasts or other Cattle 〈◊〉 going féeding or departuring in any waste or common ground whereof the Parish is not certainly known shall pay their tithes for the increase of the said Cattle so going in the said Waste or Common to the Parson Vicar Proprietarie Portionarie Owner or other their Fermours or Deputies of the Parish Hamlet Town or other place where the owner of the said Cattle inhabiteth or dwelieth Provided always and be it enacted by the Authoritie aforesaid that 〈◊〉 person shall be sued or otherwise compelled to yéeld give or pay any manner of tithes for any Mannors Lands Tenements or Hereditaments which by the Laws and Statutes of this Realm or by any Priviledge or Prescription are not chargeable with the payment of any such tithes or that be discharged by any composition reall Provided alwaies and be if enacted by the Authoritie aforesaid that all such barren heath or waste ground other then such as be discharged for the payment of tithes by Act of Parliament which before this time have lain barren paid no tithes by reason of the same barrennesse and no to be or hereafter shall be improved and converted into arable ground or meadow shall from henceforth after the end and term of seven years next after such improvement fully ended and determined pay tithe for the Corn Hay growing upon the same Any thing in this Act to the contrarie in any wise notwithstanding Provided alwaies and be if enacted by the Authoritie aforesaid that if any such barren waâ—te or heath ground hath before this time been charged with the payment of any titheâ— and that the same be hereafter improved and converted into arable ground or meadow that then the owner or owners thereof shall during the seven years next following from and after the same improvement pay such kind of tithâ— as was paid for the same before the said improvement Any thing in this Act to the contrary in any wise notwithstanding And be it farther enacted by the Authoritie aforesaid that every person exercising Merchandises Bargaining and Selling Cloathing Handicraft or other Art or Facultie being such kinde of persons and in such places as heretofore within these fortie years have accustomably used to pay such personal tithes or of right ought to pay other then such as have béen common day-labourers shall yearlie at or before the Feast of Easter pay for his personall tithes the tenth part of his clear gains his charges and expences according to his estate condition or degree to be therein abated allowed and deductes Provided And be it also enacted by the Authoritie aforesaid that if any person refuse to pay his personal tithes in form aforesaid that then it shall be lawful to the Ordinarie of the same Diocesse where the partie that so ought to pay the said tithes is dwelling to call the same partie before him and by his discretion to examine him by all lawful and reasonable means other then by the parties own Corporal Oath concerning the true payment of the said personal tithes Then after a Proviso about Easter-offerings Provided also and be it enacted by the Authoritie aforesaid that this Act or any thing therein contained shall not extend to any Parish which stands upon and toward the Sea-coasts the commodities and occupying whereof consisteth chiefly in fishing and hath by reason thereof used to satisfie their tithe by Fish but that all and every such Parish and Parishes shall hereafter pay their tithes according to the laudable customes as they have heretofore of ancient time within these fortie years used and accustomed and shall pay their offerings as is aforesaid Provided always and be it enacted by the Authoritie aforesaid that this Act or any thing therein contained shal not extend in any wise to the Inhabitants of the Citie of London and Canterbury c. And be it further enacted by the Authoritie aforesaid that if any person do subtract or withdraw any manner of tithes oâ— ventions profits commodities or other duties before mentioned or any part of them contrarie to the true meaning of this Act or of any other Act heretofore made that then the partie so subtracting or withdrawing the same may or shall be convented and sued in the Kings Ecclesiasticall Court by the partie from whom the same shall be subtracted or withdrawn to the intent the Kings Iudge Ecclesiasticall shall and may then and there hear and determine the same according to the Kings Ecclesiasticall Laws And that it shall not be 1 How then have suits been ordinarily and at first instance commenced where they have been lawful unto the Parson Vicar Proprietarie Owner or other their Fermor or Deputies contrarie to this Act to convent or sue such withholder of tithes obventions or other duties aforesaid before any other Iudge then Ecclesiasticall And if the sentence given finde not obedience the partie to be excommunicate in which state if he stand fortie daies upon Certificate into the Chancerie to have the Writ sued out De Excommunicato Capiendo c. And before a Prohibition granted the Libel to be shewed to the Iudge c. whose hands the Ecccles Iudges are after bound he shall not hold plea of any matter cause or thing being contrarie repugnant to or against the intent effect or meaning of the Statute of West 2. cap. 5. the Statute of Articuli Cleri Circumspectè Agatis Sylva Caedua the Treatise De Regia Prohibitione ne against the Statnte of 1 Edw. 3. cap. 10. as 't is printed but it seems to be rather from the second Parliament of 1 Edw. 3. ca. 11. ne yet hold plea of any thing whereof the Kings Court of right ought to have Iurisdiction Any thing therein contained to the contrary in any wise notwithstanding Except for tithe of Marriage goods in Wales I have given this the more fully because it seemeth the last direct binding law and though it be at top the bottome whereon all is settled But so is it not There is that lays five times deeper as hath been shewn and the axe must be laid to the root of the tree even the bottome of all Law with us and more then 500 years deep before the utmost can be reached here which every private man should do well to think of that dares give his thoughts scope to deliberate about eradication What is it to go down so low and strike at those humours by strength of Physick that have their sediment at the Root of Nature Galens hand trembled the day before he gave his Rubarb foreseeing thereby the violence he must offer to the whole by pulling away a part and to fetch some superfluities away the Body must be shaken If vigour of nature should not here meet to assist no less danger or fear then which it might import to think of purging out so settled corruptions if tythes be such and not as many take them very wholesome juices But to
serve none but Himself or perhaps Venus or Bacchus or Mammon must be pared off to piece up supplies for his riot and prodigality to feed the greedy worm of his covetousness or rather to help fill up the wide and insatiable gulf of his craving ravenous and cruel soul This were indeed what were if this were not heavily burdensome But shall I serve the Lord Christ with such an inside Shall I profess my self a Church-member yea a member of Christ the Childe of God and an Inheritour of the Kingdome of Heaven harbouring in my bosome a nest of such unreasonable griping cruel carnal lusts Shall I go on to read the Scripture profess the Light hang on Jesus Christ and all his Ordinances with pretended love to his Law and grudge or subtract any mans known worldly dues refuse to give every one his own detract from the humane ordinance and dare say in any case Right is wrong or Law burdensome Shall my turbulent greedy envious unruly passions prevail with me so farre to make me think my neighbour has too much though it be his Own I must covet it I will have it Nay Gods Minister has too much of his known Right I cannot temper but I must covet my neighbour goods That neighbours goods 1 Let a man so account of us as of Ministers of Christ and â—tewards of the mysteries of God 1 Cor. 4. 1. Gods Ministers Right Rob the Church yea perhaps rob God and starve or occasion the starving of souls by withdrawing that which should warm the bloud and quicken the bodies of those should and would feed souls in present and discourage those that are to come in hereafter furthering in the least degree or upon any pretence by my wilfull parcimony that the thing we have so long feared may at last fall upon us That children may cry for bread and there be none to give it them a worse famine may pinch us then that of bread and water even a famine of the Word of Life that hungry souls may run hither and thither for meat and grudge being not satisfied from Parish to Parish from one empty Church I mean to another for the Ordinances of Life and none be found in Sion to comfort her children a well-instructed Teacher in England be as rare as was a man in Israel and because no more means is left to sustain his natural life One Preacher must serve for twenty Congregations Away Pluto and Mammon Let Judas and Achan be for ever separate from the Congregation of the Lord Cursed be Ananias and Sapphira and all their brood Let their posterity never find fig-leaves to cover the shame of their sin in this world nor any thing but Gods mercies and Christs merits to shelter their guilty souls from condemnation in the world to come Let me have ever light enough to know mine Own Justice to give every man his Due Religion to direct I Ought to do so Prudence to measure it out by the onely wise and safe Law and either cast away my Bible Gods Law out of my hands presently or cease eternally to covet my Neighbours goods One word also in the spirit of meekness to him not hitherto thought of that is I take it easie enough to be led but as it falls out miserably out of the way that follows the light of his eyes and they guide him to errour urging the Petition of Right for every ones and his own and yet crying down tythes thereby which being a Right can certainly have no discountenance but must rather have a firm consequentiall establishment by that Petition Philip Philip understandest thou what thou readest Do but say I pray thee what is it thou so importunately callest for Is it not for Right Civil Right Every ones Thy Neighbours as well as thine own And Christs Ministers if he have Right yea Civill Right hereby to his Tenth as well as thou to thy Nine If this why pervertest thou the right words of the Law destroying again presently what but now thou buildedst up and by or with thy hoarse and importunate out-cries for this Petition endeavourest to cry down tythes thereby which being a Right sure Mans right is not Gods right cannot but have thereby a clear and evident confirmation Is not ones mans right of the same kinde with anothers and as good as anothers Must not thy Pastors have been included in All Or couldest thou be content to have his little portion understood at least to be struck out of this book of temporal life to augment thy part to a proportion of ninefold bigger then His already What equity were this or shew of Conscience Suffer I pray thee the word of exhortation and be not offended if I tell thee the truth If thou be a Christian indeed thou wilt not entertain a gentle reproof with disdain nor repay meekness with rage storming at him that would by the grace of God and according to the light given him deliver out nothing to thee but the words of truth and soberness Ask thy Lawyer and he will tell thee Advise with the Learned in his own profession Consult with the Potter about the things of his own trade There is never a Judge at Westminster never a Serjeant in their Innes never a learned Councellour or knowing man in this Land but will assure that tythes are as due besides the rules of equity for work and generals of Scripture for competent maintenance by the Law the rule of Civil righteousness among us to their due receivers here as any rent or rent-charge debt or bond not a benevolence but a strict Right and that the settled and compleat body of the Law doth with as much unanimity evidence constancy and aged consent agree to settle and say so for them and yet doest thou contend and urge a publick grant of right as an argument to destroy them Those sages are wise They will not deny their books They cannot deny this Thou must consent to it Thou hast nothing to say against it Where art thou now On Gods side or on Baals for Christ or for Mammon For Righteousness or Vnrighteousness Wouldest thou but have every one have his Own Doest thou not covet thy neighbours goods Wilt thou own the power of as much Religion as in one verse of one Chapter of the whole Bible Render therefore to every man his due Rom. 13. 7 Keep to this I desire no more I know I have gained with thy honesty thy sure vote for tythes and for ever hereafter Hold to this Concession and be constant thou wilt never hold up an angry hand nor finger against them or but for them unless thou change thy minde to petition against the petition Thou wilt not I suppose be wiser then the Law mangle the Royall Grant or deform that Petition of Parliament If thou do 1. Thou art unjust because not impartial 2. Inconstant because even now thou chosest to submit Hereto and madest use of it 3. In plain terms little
Indicavit and ruling power thereof he yet 1 Lib. 5. ca 17 Sect. 9. pag 330. makes the bottom after discussion in the Kings to be the Churches Court and as that shall sentence such or such a Patron to have right or wrong in the Advouson of Tythes so after the binding sentence though regulated before must be formally given in Curia Christiana for them 9. In casu autem quo Rector Ecclesiae impeditur ad petendas decimas saith he in vicina Parochia per prohibitionem de Indicavit habeat patronus rectoris sic impediti breve ad petendam advocationem decimarum cum disrationaverit procedat postea placitum in Curia Christianitatis quatenus disrationatum fuerit in Curia Regis The final sentence must be here though the discussion be elsewhere as upon a Verdict at the Assizes the Judgement Posteà is given at Westminster though the Triall were in the Country Afterwards then which nothing is plainer treating of Exceptions to Pleas among the first is the Court 1 Lib. 6. ca. 36. Sect. 7. pag. 428. Erit igitur à digniori incipiendum sicut à Jurisdictione judicantis persona Judicis cum ipse sit pars principalis Judicii And what is that it follows 2 Cap. 37. Sect. 3. p. 429. Cum autem diversi sint Judices aestimare debet quilibet an sua sit Jurisdictio ne falcem ponat in messem alienam Iudex autem secularis de rebus spiritualibus cognoscere non debet The greatest reason in the world Decimae autem in quantum decimae res testatae in possessione testatoris tempore obitus sui existentes c. in foro ecclesiastico debent intentari In a near case indeed not as if the Tythes have been once sold for then Per venditionem jam translata est spiritualitas in temporalitatem quo casu locum habebit Regia prohibitio ad inhibendum judicibus ecclesiasticis ne in cognitionem hujusmodi catallorum procedant c. If sold they change nature and by consequent Triall and much there follows of such prohibition and permission but of Tythes as Tythes nothing but as before From 3 Before p. 202. Bracton to come to him next four of five places were given before for permission of Jurisdiction decimal hither which have all their use here to which may be added this one for those I repeat Not but remit to them which speaks thus If a Clerk wrong another of Tythes a Prohibition shall not lay 't is in the Treatise of granting Prohibitions because there is no wrong to the Patron in his Lay fee which is his Advouson 4 Bracton l 5. tract de except ca 10. fo 408. Sect. 6. Item locum non habebit prohibitio de recenti spoliatione ut si clericus clericum spoliaverit de decimis vel aliis de quibus cognitio pertinet ad forum ecclesiasticum quia de hujusmodi restitutione non generatur praejudicium patronis quantum ad jus advocationis And this granting the scene of Triall is still upon the matter a granting of all the sending for Triall to where before it is known what will be there said a virtual approbation and confirmation of what shall be there done As he that refers to the Admiral Court does upon the matter like and approve the Civil Law so far forth there ruling And our state having many Rules de pactis but few de legatis or of Wills themselves sending in its Own want to Another place and willing the Rules of the Canonist or Civilian shall take place does interpretatively speak further That what is there done and decreed is just and by it self approved Even so the party grieved appealing to the Temporal Court making his Case known there Praying relief which is denied His tenth fliece or sheaf are like to be taken away and upon Complaint nor Parliament nor Common Law afford him any comfort but their Ministers or Consultations and Resolutions send him back to where the taking away shall be allowed What is this but mediately remotely and implicitly but fully to approve of what is there done For they are presumed willing to do justice and known able but not interposing do consent and partake in the decision they order to be it where and whatsoever So that it is no vain suggestion so often repeated and necessary to be always understood that the making good the Jurisdiction is the securing all for all comes along with it as Mahomets Alcoran will bring a long Tenths with it to Religion and for Conscience in way to his Paradise but no Wine upon earth and as the entertaining the Jews Law includes Circumcision Passover Pentecost the Sabbath too and even Decimals And so have been the proceedings with us That Court and those discussions have used to bring in Tythes effectually and not but ever Ask either the Lawyers or Owners they who did judge or were judged They both found the transposition of Wealth and Riches to be accordingly Prohibitions if they were often granted were seldom asked and always denied but if according to these Rlues The Judge was Lex loquens the speaking Oracle and nor did nor would oppose or speak or do otherwise to their cost always men found it to be most true In the Manuscript before mentioned with Magna Charta and the other old Statutes are also the Writ of Indicavit and many other such Prohibitions grounded upon the same Reasons that are alleadged in the Register and leading to the same end sc of with-drawing Lay-inquiries from the Court Christian the subject matter whereof is mostly Tythes which shews they permitted in other Cases the Triall to go where it would and certainly did carry them In the usuall Registers are inhibitions enough composed so that none of them will vary any thing they are 1 Et dicitur ideò Breve quia rem de qua agitur intentionem peâ—entis paucis verbis breviter enarrat Bract. de Action ca. 12. Sect. 2. Briefs and give the Brief of the thing in triall In the Book of Entries The Declaration sets forth great Complaints for suing in the Court Christian for tythes of Oakes under the Title of Sylva caedua to the disturbance of the King c. but meddles no further fol 226. f. 489. Restraints there are enough for suing for 2 Fol. 483. Annuities because they were De catallis debitis quae non sunt de testamento vel matrimonio c. in laesionem coronae dignitatis nostrae but Tythes are spared not a word of them So far 3 Fol. 488. Debts alleadging this reason and under this danger Machinans nos coronam nostram exhaeredare cognitionem quae ad curiam nostram pertinet ad aliud examen in curia Christianitatis trahere so for defamation so for demanding Tythes of Lands discharged But not else so for recovery of Tythes 4 Fol. 489. set out and become Lay Chattels
calcaverit pes tuus tua sit Gloss quta naturaliter ad F. lib. 1. tit de adquirend vel amittend possess This Book That Field This Garment or Sword or Diamond my Hand gives it me I have right to it in Conscience because I have it and as any other thing is another mans by his plea whatsoever so these Mine by bare Possession Which chiefly prevails in vacuity of title for then Quod nullius est id jure naturali occupanti concreditur says 2 F. de adquir rerum Dominio L. 3. Singulorum autem hominum res multis modis fiunt quarundam cnim rerum dominium nanciscimurjure naturali c. And of the severall such naturall ways of procuring one is by possession Institut lib. 2. tit 1. sect 11 12. Iure autem gentium sive naturali dominia rerum acquiruntur multis modis Imprimis per occupationem corum quae non sunt in bonis alicujus Bracton lib. 2. cap. 1. sect 2 vid. Flet. li. 3. cap. 2. sect 1. Gaius That is No ones and comes in my way seems naturally to come home to Me as Beasts that are wilde Fish Fowl c. which if I can take no one will doubt my right to Own them Nor skils it much 3 Nec interest feras bestias volucres utrum quis in fundo suo capiat an in alieno Planè qui in alienum sundum ingreditâ—r venandi aut aucupandi gratia potest à Domino si is praeviderit prohiberi ne ingrediatur Quicquid autem eorum coeperis eousque tuum esse intelligitur donec tua custodia coercetur Cùm verò tuam evaserit custodiam in libertatem naturalem sese receperit tuum esse desinit rursus occupantis fit Instit Vbi Supra where for though I might have been hindred coming into another mans Field what yet I take there is for my self I might have been keep out not from my fortune The wrong was in the intrusion not in what I have gotten But then I must fully have it For 4 Illud quaesiâ—um est an fera bestia quae ita vulnerata sit ut coepi possit statim nostra esse intelligatur Trebatio placuit statim nostram esse cousque nostram videri dâ—nec eam persequamur Quod si desierimus eam persequi desinere nostram esse ruâ—sus fieri occupantis Iraque si per hoc tempus quo cam perâ—equimur alius eam coeperit eo animo ut ipse lucrifacret furtum videri eum nobis commisisse Plerique putaverunt non aliter cam nostram esse quà m si eam coeperimus quia multa accidere possunt ut eam non capiamus quod verius est F. de adquirendo terum dominio L. 3 Sect. 1. Vid. Instit Vbi Sup. Bracton Flet. if I wound another take He that possesses must onely have the benefit of Possession and so I must keep else I have lost what I had gor So in the wars 1 Item ea quae ex hostibus capinâ—us jure gentium statim nostra fiunt adeò quidem ut liberi homines in servitutemr nostram deducantur Qui tamen si evaserint nâ—stam poteftatem ad fuos reversi fuerint pristinum statum recipiunt Instit eod sect 17. Our Bracton and Fleta have also the same Habet etiam locum ista species occupationis in iis quae ab hostibus capiuntur c Item quae ex animantibus dominâ—o nostro subjectis nata sunt eodem Iure nostra sunt Idem etiam in insulis in mari natis in similibus in rebus pro derelicto habitis nisi consuetudo c. Bracton ib. And elsewhere Possessio aliquando jus parit pro possessione praesumitur de Iure Id. lib. 4. tract 1. cap. 2. sect 7. fol. 160. the spoils of an Enemies Camp are Mine so much thereof as I can lay hold of Those Captives à Capiendo or 2 Instit de Iure personarum sect 3. servi lib. 1. tit 4. F. de statu hominum lib. 4. Mancipia eò quod ab hostibus manu capiuntur because they are touched to Property Servi also à 3 Servorum appellatio ab â—o fluxit quod imperatores nostri captivos vendere ac per hoc servare nec occidere solent F. de verborum signif l. 239. vid. Instit Digest in locis citatis servando non à serviendo from being kept not made slaves of are all reduced within the compass or restraint of Property to bee disposed of as the New Owner pleases But so long as they are kept again for if they break out and return again to their former liberty they are now again their Owne as before and not His whose they were who hath lost that whereby he had them These things may 4 See Bracton and Fleta in the places â—ited before have some speciall way of ordering with us but then generally they prevail Thus abroad and with Us too in some and most cases Nor want we instances of Right of Land so gained meerly by vertue and power of occupancy For although all were originally in the Crown if out derived from it and so upon extinguishment of the derivative title as Escheat should have naturally reverted to whence it came yet in some cases and by some circumstances it proves not so but a title may be 5 Chancellour Bacon gives an Instance Where an estate is granted to one Man for the life of Another and the first dye without disposing his Right Nor Heir nor Executâ—r â— nor Reversioner can have it So it is his that layes hold of it Vse of the Law pag. 24. See the example as large gainable and tenable by Entry as they call it and a man Have and have Right to Land meerly by Possessing it 2. I said moreover Possession is the first and naturall title Nothing is more Naturally Mine then what I do lay hold of Justinian 1 Possessio appellata est ut Labeo ait à fedibus quasi positio quia naturaliter tenetur ab eo qui ei insistit quam Graeci 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 dicunt Dominiùmque retum ex naturali possessione coepisse Nerva filius ait cujusque rei vestigium remanere in his quae terra mari coeloque capiuntur Nam haec protinus eorum fiunt qui primi possessionem eorum adquisierint F. de adquir vel amittend possessâ—in princ taught me so and Thence yet what we take is our Own as hee has from Labeo Ecce effectus possessionis the 2 Gloss Dominium ibid. Gloss there bids us mark it and it is remarkable For even beasts we see will rarely exclude the Possessour They have onely the Law of Nature they skill no compacts or force of agreement yet they observe whence but from natural impression for a kinde of right by Having whence though their ravin be greedily set we shall finde they cease to pursue
what they see another has got 3. Yet more this title is firm and solid and will endure the touch of Examination 'T is not a fraud or disseisin which are wrongs and have their known remedies but a very Right which the Law looks upon and approves and more then permits justifies and protects the possessor If the other are once searched and found they are lost but this how much the more it is examined and known is so much the more approved and justified 4. Against all but the true owner at first though the bottome of the claim be no better then in some regard an unjust entry The words of the Law are such Hóe 3 Doct. Stu. Dial. 1. ca 9. f. 19. that hath possession of Land though by disseisin hath right against all men but he that hath right Chancellor Bacon 4 Vse of the Law p. 25. addeth also that whether he outed any one of his quiet possession who is properly a Disseisor Or stepped in after a Possessors death before his heir who is an Abator In each of these cases whether Disseisor or Abator possessing and dying possessed His heir hath gained the right to the possession of the Land against him that hath right till he recover it by fit action at the Common Law And if it be not sued for within sixty years after the disseisin or abatement committed the Right Owner hath lost his right by that negligence If either of these the Abator or Disseisor be excluded by a third invader Is not now this third person a second Disseisor his title good against those before who were no better indeed then Usurpers Answ No For to the two former the Possession gave besides the present Having such a Right that against All but the right owner it gives title to be as ground still left to recover upon again and it shall not be excepted against such a man He had no right the thing was never His For he Had it Was and He is to the second Disseisor an Owner and may out him as having by his former possession not so Good an Equall but a Better and Prevailing title And this in favour of possession which to all but the rightful Owner gives true title and may not be evaded or rejected The question is put by 1 Tract de Assisa nova disseisin cap 7. sect 2. fol. 165. Bracton under this Head Who may grant a Writ of Assise the known remedy of a possession not an usurpation and upon Answer That None save he that is possessed in his own right no Guardian no Fermour no Servant c. Hee replies But whether then a Disseisor disseised It should seem not for he had no title in his own right indeed None Yes though not against the owner against all else and so is truly dispossessed and of his right and may have his remedy as of a disseisin and this propter commodum possessoris or as Fleta propter commodum possessionis and there is no exception against his wrongful title Indeed such a one should not recover against the rightful possessour upon even terms for he wanted ground to fight on compared and contesting with him and so things must remaine as they are But when neither has true right the possession comparatively among themselves shall create a right with the first to keep as his own or recover being out Et Hoc propter commodum possidendi onely for Having 2 Lib. 4. cap 2. sect 5. pa. 217. Fleta has the same and the 3 Bracton Tra. sup ca. 2. sect 8. fol. 161. former again Cum neuter Jus habet metior est causa possidentis and 4 Vid. lib. 2. ca. 22. sect 1. fo 52. many other such things which I forbear to transcribe All which and many such other do together so much favor strengthen his right who Hath that if I am In any thing onely In and all the world against me but One Man sc Hee in whom is the True right yet I shall defend my self against them All not can be justly outed by any but shall for Possessions sake and Because I am in sit fast or if I am thrown out Recover and this by Law which may be bottome good and justifiable enough for me to rest upon because it settles all things 5. Moreover against that one man the true owner too in time for 1 They are the words of the most Learned Chancellour Bacon in the place before if the Abator or Disseisor so as the Disseisor hath quiet possession five years next after the disseisin do continue their possession and dye seised and the Land descend to his heir They have gained the right to the possession of the Land against him that hath right till he recover it by fit action reall at the Common Law And if it be not sued for at the Common Law within sixty years after the disseisin or abatement committed the right owner hath lost his right by this negligence For 2 Flet. lib. 2. cr 60 sect 7 p. 129. Currit tempus contra desides Juris sui contemptores as is elsewhere And if a bastard possesse quietly and dye so his Children shall hold against the lawful Children and their issue This still in favour of possession and 3 Longaeâ—im possessio sicut Ius parit Ius possidendi to lit actionem vero domino petenti quandoque unam quandoque asiam quandoque omnem quia omnes actiones in mundo infra certa tempora habent limitationem de acquirend rerum dom fol. 52. Bracton agrees thereto that long peaceable and continuall possession locks the rightful Owner quite out for there must be a time to end strife and he has lost his time of regaining 6. Yet farther Where many titles are equall The Possessours is Therefore Best and if the scales hang even the Advantage of Being in shall sway the Right also to that side where is the Possession Not onely the Having but the Right For it must be always a better title must evict that which is as if I have footing any where it must be a strength whose Greater power shall out me and take possession of my room Hence the 4 Reg. Iur. Canon 65. Canonist In pari delicto vel causa potior est conditio possidentis In equality of state the possessours is the better And the 5 F. de diversis Regalis Iuris antiqui l 170. Dâ—m quaeritur dâ— damno par utriusque causa sit one must lose quare non potior sit qui tenet quam quâ— persequitur de verborum obligat L. Si servum Strchiu n. Sect. Sequitur Civilian In pari causa possessor potior haberidebet much to the same And when with us one contended for a Wardship and one possessed upon equal Right neither should have been outed and then He was well enough was in He kept what he had For 1 Bracton l. 2. cap. 38. Sect. 5. f 90.
be said to be possessed of these things sith they are known to be in anothers the Husbandmans possession He plows and sows and looks to and Has Much good do it you saith he then with your part sith I have nine and the Tenth As was jestingly put upon the Sophister who when he had with much subtilty of Syllogisme proved two egges three was bid take the third for his supper Ans Nay not so neither Here is more reality a possession or quasi possession of these things beyond fancy or speculation Not of the things indeed strictly but of the 3 Is qui actionè habet ad rem recuperandam ipsam rem habere videtur F. de divers regulis l. 15. Liberty and Right to take them up and that is possessed continually even when the things themselves are not As a Lord is possessed of a Quit-rent seven years together and yet he receives it but once a yeare his right is inherent when the power is not used Or as a man possesses a way over such a ground not by the Land it self but by the leave he may when he will and will when he lists and that list comes as often as there is occasion Thus to make use of the Land for his Service For understanding which things the better we must have recourse to a known distinction even in Law or a separation or sorting out possessions into two kindes of Rights and Things Corporeal and Incorporeall The one Corporeal are possessed but by grasping or clasping the Things as in our hands c. The other Incorporeall the Rights are enjoyed even in the use or having used and so continually enjoyed even when the use it self the fruit is not As the Patron of an Advowson in gross 1. Has never the Glebe nor Church nor Tythes nor any thing seen 2. Nor has it may be presented these 20 years past or for these 20 years to come may not yet still all this while he hath ever a Right to present if 1 Vid. Bract. lib. 2. cap. 23. sect 3 4. Flet. l. 3. cap. 15. sect 16. ever he presented or had right which right is lieger dormant with him continually till he draw his power into act as he does when is occasion reaping some fruit of that right which was though seldome used inherent continually Even so the occasionall Receiver of Tythes it may be once a year or whensoever has still Jus ad rem that is to the taking them up when they shall be which is the fruit Though not Jus in re the continuall actuall perception of them In short he is possessed fully and clearly of a right to them all the year but he reaps the fruit of this power onely in the fruits of Harvest Much is said of these things both among our Lawyers and the Civilians But this may clear the thing how the proprietary hath continuall possession of his right in the interception of use of his power and yet always leave and power to use it when there is occasion Object And this also may prevent another doubt wil arise anon about Prescription which is always founded in possession and more even a continuance and how can this be in the interruption of taking up these dues but seldome and as is occasion Answ Yes This may be well enough for without Interruption Ever there is a perpetual right of taking them up when they shall arise a continuance of claim though the things arise not to be claimed But it may be replyed to both Reply These things are corporal visible quae tangi possunt within reach of All the senses And how throng we them up then into that notional airy speculation of a right in the clouds Solut. Such Things should be Possessed actually or they are not within the Claim of Possession For a 2 The redouble upon that is given in answer to an answer a term familiar in Law Ad replicationem vero sequitur triplicatio ad triplicationem quadâ—nplicatio one rejoynder farther ex causa c. Bracton de Except cap. 1. sect 4. so 400. vid. fol. 428. fol. 242. Replicatio est c. contra replicationem datur triplicatio Reo iterum quadriplicatio petenti Flet. lib. 6. cap. 36. sect 10. pa. â—â—8 Triplication to which reply Yes so they may indeed The Things may be seen but their Right is invisible as a Church may be seen the Glebe is tangible but the Right of Advocation thereto is what Ask who ever 1 Quamvis Ecclesia secund â—t quod const tuitur lignis lapidibus sit res corporalis jus tamen praesentandâ— erit incorporale Bra. fo 53. had it in his hand or can tell who saw it or where it is The 2 Instit lib. 2. tit 2. deâ—rebus corporalibus incorporalibus Emperour has fully satisfied this point Let patience bear with a little more length then ordinary in transcription because it tends to illighten all before Quaedam praetereares corporales sunt saith he quaedam incorporales 1. Corporales hae sunt quae sui natura tangi possunt veluti fundus homo vestis aurum c. 2. Incorporales autem sunt quae tangi non possunt qualia sunt ea quae in jure consistunt sicut haereditas ususfructus usus obligationes quoquo modo contractae Nec ad rem pertinet quod in haereditate res corporales continentur Nam fructus qui ex fundo percipiuntur corporales sunt id quod ex aliqua obligatione nobis debetur plerunque corporale est veluti fundus homo pecunia Nam ipsum jus haereditatis ipsum jus utendi fruendi ipsum jus obligationis incorporale est 3. Eodem numero sunt jura praediorum urbanorum rusticorum quae etiam servitutes vocantur And the same is also the nature of this Right Though the Things themselves admit possession as visible tangible yet the Title to them is in nubibus a conceit or supposition of the Law without any sensible existence And we may not argue from a Thing to a Title from Land to an Inheritance for they come under severall conceits of the minde and must be cloathed with several expressions and though they are about the same thing yet they are not The Same thing nor admit the same words and considerations So that it remains then Tythes may be truly possessed even when they are not that is A right to them against they are or shall be That quasi possessio is enough to go along with the measure of time in even paces to be a ground of Prescription by that continuance and though the things themselves may be seen and possessed Corporally yet the Right cannot nor is expected should Be sure of this That if the Lord of a Mannour or that higher of an Honour a Patron of his Advocation or Copy or Free-holder have right or possession of any thing they have the Corporation of Publick Sacred
30. these Tythes whither of the seed of the land or fruit of the Trees as we would say Corn and Fruit And accordingly paid in practise not without intimation of this Consecration and appropriation 4 2 Chro. 31. 6. They of Judah and Israel brought in Decimas armenti gregis Decimas sacras id est sacratas Jehovae Deo ipsorum as Tremellius Their Tythes of the flock and of the herd sacred and devoted to Jehovah their God Who complained He was defrauded even he himself in These 5 Mal. 3. 8 9. Will a man rob his God possibly the thing may be done or else here in vain questioned Yet you have robbed Me Wherein In these Ye are cursed with a curse c. And for the Attournment or making them over to Man to be received by him for his good Lord and Masters behoof 6 Num 18. 21. and compare ver 23. 26. Behold I have given the Children of Levi all the Tenth in Israel They were mine but I have Given them to Them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for their publick work of Ministration For the service they serve in the Tabernacle of the Congregation All this is in Gods Book to prove the possibility of the thing and abundance more not found or sought But now for what apprehensions Our Laws had of this thing here which is to the point indeed The beginning of the great Charter was remembred before 7 Chap. 1. Concessimus Deo hac praesenti Charta confirmavimus We have given to God for us and our heirs that the Church shall have All her Rights and Immunities And a part of the Church Rights were then in Tythes and Jurisdiction to Command them Whereas the Liberties of the Freemen of the Realm were given to Themselves as 't were into their own hands immediately Were those blinde days Was King Edward blinde also 8 Leg. Edovar cap. 8. 1 De omni annona decima garba Deo debita est ideò reddenda said he The Tenth due to God and so to be paid so preached Augustine and was granted by the King his Baronage and People Not Augustine of Hippo but one was more near us and more to be heeded by us though 1 Nosti quia Dei sunt cuncta quae percipis c. as the word were alleadged before p 74. And a little after Quid si diceret Deus Meus est homo quem feci Mea est terra quam colis Mea sunt semina quae â—â—argis Mea ammalia quae fatigas Mei sunt imbres pluviae ventorum flamina mea sunt Meus est Solis calor cùm omnia Mea sint elementa vivendi Tu qui manus accommodas solam decimam merebaris Sed quia piè nos pascit omnipotens Deus amplissimam tribuit minus laboranti mercedem sibi tantum decimam vendicans nobis omnia condonavit Ingrate fraudato ac perfide divina te voce convenio Ecce annus jam finitus est redde Domino pluenti mercedem c. Iu a harvest Serm de temp 219. Tom. 10. p. 370. that Father spake fully enough and to this point to his Africans but I keep my promise and home Wise prudent valiant successfull and exceeding pious King Alfred required 2 Spelm Concil p. 360. Thine Tything portion give thou to God and 3 Id. p 377. in his League with the Danes calls them Dei Rectitudines and his father before him wrote his Catholick Donation 4 Id. p. 349. at the Altar offered it there as to whom and not having to do with an Eorl or Earderman or any upon earth Man-receiver The Councel at 5 Id. p. 517. c. 10. Enham called them Jura Deo debita King Knout in his 6 Id. p 544. Laws Quot annis quisque Deo debita Jura justasque redditiones ritè persolvito Let every one pay yearly to God his due Rights and King 7 Id p. 531. Ethelred before Nemo auferat Deo quod ad Deum pertinet praedecessores nostri concesserunt Let no man take from God what belongs to God and which our Ancestours gave What was in King Edwards Law we had but now which how much the Common Law remember also and the following confirmations of that Law as many as were involving this also and to omit what might be gathered from our Provincials in Lindwood and the Decrees at large step at once to Henry 8. where 8 27 H. 8. c. 20. the Parliament complains to the King for remedy that Numbers of ill-disposed persons having no respect of their Duty to Almighty God but against Right and good Conscience did with-hold their Tythes Due to God and holy Church c. They were then reputed and in Parliament Language so to belong and lastly in the commonly reputed common Law Bract. and Fleta are not wanting No one can but account these things and even in their account a part of the sacred Revenue and then 1 Lib. 3. cap. 1. Sect 3 Res verò sacrae relligiosae sancte in nullius bonis sunt Quod enim dâ—vim Iuris est id in nullius hominis bonis est imò in bonis Dei hominum censura Braction lib. 1. cap. 12. Sect. 8. f. 8. vid. ff deâ—erum divisione l. â— Sect. 2. Inst l. 2. tit 1. Sect. nullius Sacrae res sunt quae ritè per Pontifices Deo consecratae sunt veluti aedes sacrae Donatia quae ritè ad Ministerium Dei dâ—d â—ata sunt Qâ—ae et am pernestram constitutionem alienari oblicari prohibuimus excepta caula redemptions captivorum 16 Sect seqâ— sayes Fleta Extra patrimoniuÌ„ sunt Res sacrae c. beyond mans Right or reach neither are they to be transposed for that reason for 2 Item donari non po erit res quae possiderinâ—n potest sicut res sacra vel religiosa vel quasi c. Hujusmodi verò res sacrae à nullo dari possant nec possideri quia in nullius bonis sunt id est in bonis alicujus personae singularis sed tantum in bonis Dei vel bonis fisci Bract lib. 2. cap. 5. Sect. 7. f. 14. no man has them they are a part of Gods Inventory sayes Bracton They 3 A Rectory or Parsonage is a Spiritual Living composed of Land Tythe and other Oblations of the People separate or dedicate unto God in any Congregation for the service of his Church there and for the maintenance of the Governour or Minister thereof c. So three eâ—ual integral parts sc Glebe Tythe c. Spelman de non temerand Eccl. Sect. 1. and the Glebe are questionless as to this all of a nature their property use possession intention devotion application and jurisdiction the same and for what Land is given 4 Bracton lib. 2. cap. 35. Sect. 4. f. 78. So Fleta l. 3. c. 16. Sect. 13. p. 205. Videtur verum est
extraordinary of those other who in private condition Dare venture to tamper with the Foundation of all Distances medling with that in Politicks does as much as the grace of God in Religion making one Man to differ froÌ„ another in wheresoever he does differ 1 Cor. 4 7 For what hast thou thou hast not received hereby 1 Tim. 6. 17. and that gives us all things plentifully and ichly sol ely only to enjoy But now some one May say These are but Logical Arguments humane Reasonings fallible and liable to Mistake Whereunto I answer as readily assuredly Even so and there is no doubt of it None so far out of the way as he that thinks he cannot err and incurably too for as much as this perswasioâ— in his minde is as bad as poyson in his soul hindring all possibility of healing his errour If then replied what farther probability It is not so here and This is right Have Others thought the same Hath any thing been done accordingly How have the fruit of such perswasions or Actions been exhibited in view and in things existent I answer Well enough And this leads inquiry into two things yet behinde fitly and to this place reserved and they are 1. What the Lawyers have given in as their Opinion upon the former or like Grounds 2. And what has been Dâ—ne What the one have thought and has been the fruit of the other seen in the World And first Ask the learned in their profession It uses to be so and prudence thinks it has had especiall work in such obeyed directions To the Physitian in doubt of a disease To the Artificer in a point of skill To the Divine in a Case of Conscience To the Husbandman or Artist in that their callings or conversations fit them to direct about Every one of these is wise in his work as the wise man says and we use to rely on the Practised and Experienced Go then to the Student Ask the Counsellor Move the Judge Apply to a whole Jury of Judges or the Corporation of Learned Men dispersed through the Land There is never a one will set his hand or his thought to the Contrary or deny it to This That Tythes are as due to their due Receivers as any thing else to whomsoever it is due He cannot go against his own light He must know This and he ought and will subscribe and do accordingly 'T were strange to finde one of a Kinde singular from all the rest He were a Monster of his profession that had the protuberation of a strange opinion excessive and swelling out of his bosome different from all other of his sort And as such they would look upon him at Westminster that should peep out into the world with this new discovery that Tythes are any longer Alms or a Voluntary Benevolence for the support of Christian truth not Duty and a Due by strict retributive Justice Have they not councelled Have they not practised Have they not judged Do they not Judge and still commit sentence to execution accordingly And manage the whole series of their most honourable studies and imployments Still as upon such a Supposition Unwilling men have not Given but Paid Could they ever relieve them They have complained Their goods upon this pretence have been taken from them Where was their remedy Their Neighbour Bench had Ordered Appointed Given It should be so Whence any Comfort Nay They the Secular Courts themselves have assisted For if the Consistory appointed and the convicted denyed to pay The sentence of Excommunication was Orderly and Leisurely but Certainly backed with the Writ De Excommunicato Capiendo to take him that refused as a Rebellious Son of the Church into safe Custody of the State as contumacious and refractory to allowed orders Ridley View of the Laws par 3. chap. 2. sect 2 3 5 6. and No relief but still and more assistance and farther prosequution by whatsoever Ployden and Littleton could do that one sword might help another Nay themselves have interposed some say Too far the Statute never meant it at the first instance and drave on the Statute of treble damages for Justice to Execution in their Court And were they not Just even when they were Judging as the King Ahashuerus desired the Queen should be Vashti according to Law Esth 1. 15. But to instance in some particulars Of which those that offer themselves are too many therefore I content to take up my self with a few Beginning with that right worshipfull and learned Benefactor even to the Learning of an University the most deserving of Religion Vertue Learning and all Goodness Sir Henry Spelman He was not indeed a Lawyer but More Himself bewails the mis-guiding of his tender years 1 In praefat ad Glossar pa. 1. and in his Treatise of Tythes pa. 161. too soon out of the direct way to graduated and professing in that most excellent knowledge But he that shall heed the demonstration he gives the world of his Sufficiency in those Noble Studies by his Glossary and sundry other exact pieces extant will be forced to confess him above even measure for a Professour and not unworthy to teach some Masters As having digged down to the foundation of our Fundamentals and not unworthy to sit in the highest Chair of the Learned Now he tells us in one piece as I remember for I have not the Book by me that although Tythes and other Rights of the Clergy had not been primarily due unto God by the immediate rule of his Word yet Are they Now His and separate from us by the voluntary gift and dedication of our ancient Kings and Predecessours and who shall violate the will of the dead whose impiety shall dare alter change invert divert the streams of their pious bounty and heavenly inspired charity out of those channels their wills set them in to move toward and end in the advancement of Gods glory If it be but a Mans Testament Gal. 3. 15. saith Saint Paul who disannulleth or addeth thereto being once confirmed and shall not religious indowments be yet more safe and from violation being Given Legacies and having all possible humane confirmation And in a Treatise published since his death he is yet more express T is fully and solely of the Right of Tythes and taking the subject at large He begins That God will have a part not onely of our Time but Goods That Christ released not Levi's part in them That there is something in nature for That duenesse and proportion That they are due by the Ecclesiastical Laws of Councels by the imprinted Laws of Nature by the written Laws of God by the received Ordinances of Nations and lastly screwing it up to the equall heighth of our proposition to a syllable That they are due with us by the Law of our Land Chap. 27. pa. 111 c. By what Law the very Secular Temporal All-ruling All-giving which settles all men in their possessions
and inheritances and he alledges for it divers of those principles which before as not borrowing of him we alledged to this purpose whence also we hope We have not been mistaken because we finde his vote consenting and strengthning ours As K. Edwards Law K. Aethelstanes Law K. Edmonds Law K. Edgar Knout and the Confessour beside the Conquerours Heu tot sancitas per plurima saecula leges Hauserit una dies hora una perfidus error as he exclaims Shall one mans days change all so many and the fruit of best humane wisdome so ripened by time and grown as an Oak by leisurely degrees to greatest Maturity of strength be pulled down by sudden revocation If the things were lawfully conferred as none can doubt but they were so lawfully Then let us consider says he how fearfull a thing it is to pull them from God! to rend them from the Church to violate the dedications of our Fathers the Oaths of our Ancestours the Decrees of so many Parliaments and finally to throw our selves into those horrible curses that the whole Kingdome hath contracted with God as Nehemiah and the Jews did Nehem. 10. should fall upon them if they transgress herein Say then that Tythes were not Originally due unto God c. yeâ— are we in the case of Nehemiah and the Jews Nehem. 10. 32. They made Statutes by themselves to give every year the third part of a shekel for the service of the house of God And so our Fathers made Laws among themselves to give a portion of their Land and the tenth part of their substance that is the Parsonages for the service of the house of God Deut 23. 20. If they were not due before they are now due For When thou vowest a vow unto the Lord thy God thou shalt not be slack to pay it for Jehovah thy God will surely require it of thee and â—o it should be sin unto thee Therefore see Act. 5. 4. If the King give a gift of his inheritance to his son Ezek. 46. 17. his son shall have it If he give it to his servant his servant shall have it their times If the King then give a gift to his Father that is God Almighty shall not he have it or the servant to his Master and Maker shall not he enjoy it Who hath power to take that from God which was given unto him if not by vertue of any command from yet according to his word c. Thus far that learned and pious Knight Which yet I have not transcribed so fully as I meant because the words of the Laws alledged by him in the sense we doe and for proof of the same conclusion were represented in words at length before upon occasion And yet thus much too was needful to shew consent that we vent not nor invent of our own but of the same words make construction to the same purpose and have the same apprehension of things upon the same grounds he both had and gave Premises and Conclusion the same from the same for singularity either of opinion or proof brings always with it some suspition We see he saith here proveth that beside Canonical Natural Moral and as it seems unto him Divine Law our Civil Laws have added whatever of strength they can give to create a Topical and English Political home-right of Dominion Power Jure Soli as they use to speak as well as Jure Poli to settle these Dues where they are The former may have been our Ancestory Principles and Rules which guided them at first in settling as they did and with these many things else But now we little need to go so far unless ex abundanti for Surplusage of strength for however it may have been disputable at first of the Natural or Moral right as of sundry other things Manours Honours Inheritances c. which concerneth also the Indians yet or other Infidel Nations in state that ours once was of To be converted where nothing publick hath been done or passed for them Yet as when Ananias and Sapphira had given the state of things was altered and their Duty or Danger So here the Pactional and Civil having made chains of continual and successive binding Ordinances to hold retain and keep these things fast and thus Now the principles may stand by the inference being justly made stablished and of force and without further inquiry the Stated Made Right must be here enough or None have with us any thing This worthy and Worshipful Knight whose degree gave him not so much title to those honouring Epithetes as his Worth and true Worthiness as we would call it Worthy-ship and who honoured his Titles as much as They Him was a man singularly Learned profoundly Judicious of most tender conscience and lively quick zeal and love of his God and Christ and that his flock which we call the Church no way interessed save to his own prejudice and by his lay condition rendred incapable to reap any fruit of this Harvest hee here so earnestly strives to defend from spoile nor like to eat a bit of that bread he here so zealously defends in behalf of the true owners Memoria justi in benedictionibus yet it pleased God to stir up his heart and he that touched the Prophet Esays lips Es 6. 7. with a coal from the Altar no doubt touched his heart and quickned and directed his minde to indite and his pen to write and set down many profound and unanswerable arguments for truth against sacriledge kept secret from those that stand always in the house of the Lord in the Courts of the house of our God as the Psalmist speaks Psal 135. 2. the professed and dedicated servants and Votaries of the Temple and because uninteressed to make him the fitter and more likely to be successful Champion of Justice Truth and true Religion in their outward visible supports then those whose known interesses would always have taken of and diminished from the worth or effect of their sufficient or never so well-meant undertakings and performances Which outward supports let them be stirred when they will men may dream and think they prophesie but an ordinary Humane eye can in reason probably fore-see nothing but very soon too sure the decay of Religion the fall of the Church as to outward frame order and support and Christian piety it self I speak in humane consideration still ready to falâ—flat down to the ground or degenerate into Natural God can sustain it miraculously feed his servants waiting on the Ministery thereof now as he did his people in the Wilderness 1 Kings 17. 6. or the Prophet Elijah by a Raven or yet more miraculously without any meat at all or perhaps in as equally strange and wonderful way by the men of this world their voluntary Benevolence But speak according to inferiour probabilities as things depend here on their causes or in humane expectation which is to be our lower rule and
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
erat demonstrandum CHAP. XXXIII IT remains for inference and application to the just conscience that every sober and well-meaning Honest man quietly and orderly compose himself then to his duty in obedience and if this burden be duly and fitly laid on on Him to take it up and go away with it as contented not wrangling or quarrelling to his due shame abominable sin as well as manifest injustice dangerously seditious disturbance But be satified with his own give out to others with willingness what is theirs He acknowledges and must acknowledge and not His. My Lot may be of the Receiving part If it be I may justly expect mine own require it demand it and unless my Christian perswasion be against going to Law for any thing which has colour from 1 Cor. 6. 1 6 7. if it be denied as for any other Right sue for it Or if my lot be on the paying part here I have both leave and duty not to 1 Do all things without murmurings and disputings that ye may be blameless and harmless the Sons of God without rebuke in the midst of a crooked and perverse generation among whom ye shine as Lights in the world holding forth thus the word of life that I may have comfort of you in the day of Christ that I have not run in vain nor laboured in vain Phil. 2. 14 15 16. See also 1 Cor 10. 10 and Iude ver 16. Sure this is a Gospel sin murmure or complain shift or evade but meekly gently and Christianlike do what belongs to me reckoning my self no Honest man unless I have thus much Honesty to be Content to give every man his Due yea not as the Ox or the Slave meerly for fear of the whip but from forwardness and readiness quickned by the inspiration of my Religion whatsoever I do as unto the Lord or unto Men doing it Heartily and willingly as knowing I am bound to keep my rank 2 Rom. 13. 1 5. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 not onely for wrath but for Conscience sake For 3 2 Cor. 6. 7. God loveth a chearfull Giver and a chearfull Doer and it is the great commendation of Christian Religion that it makes or leaves none slow or indifferent in any good Duty but adds wings to the weary or heavy doubting soul more readily effectually and chearfully to do every thing ought to be done for the Lords sake 'T is said there are some whose Consciences will not give them leave to issue forth these Dues according to legal Obligation and and all just expectation even as just as any is in the world But I ask almost in the same words whether their Consciences will give them leave to pay their Dues A Just Assesment Stated Rights A Quit Rent a Fine a Releif or any Just Imposition Set aside Leviticus Malachi the Epistle to the Hebrews yea the whole Bible This Rent-charge as it were is so due by Civil Justice will they now be Honest Men If they answer but Roundly and home to this I have as much as I desire Will their Consciences give them leave to pay their Debts what is doomed such If this be not a Debt to the due Receiver a yearly profit issuing out of their Lands to anothers use by Law Nothing is due here in England and for this is the strength of the whole Treatise going before Thou sayest I cannot prove Tythes due by the Law of God I went not about it but if I can by the Law of Man this is enough for thee thou repliest Leviticus is abrogated the Hebrews dark Abrahams and Jacobs but examples But wilt thou pay a Custome or Toll or Tribute or legal Taxation Is a Rent-charge due or Relief or Quit-Rent By what Obligation soever thou shalt confess There by the same and of equal strength I will make good my Plea here Where art thou now Wilt thou pay both or none What but English Sacred Law gives the one and the same gives the other Pay or deny both or neither the equity is of equal measure strength and evidence for both together O Christian let not the World deceive thee Let not the God of this World blinde thine eys If thy Covetousness hinder not thy Conscience may well serve thee to pay thy Dues yea would Constrain thee that is more then Permit for true Religion does more then Give leave Command and Injoyn men to be Just and Righteous Nor let any one say These are Trifles far below the height of Heaven May not a man keep a good Christians Conscience to God without troubling himself with these Levitical Ceremonies Hearken man This is a part of our Moral Righteousness as things are Now with Us a part of Necessary Justice A man can be with Us No more Unrighteous or Unhonest then he can here make light of this part of his legal Duty Nor let him say I have given my name to Heaven I have weightier things in consideration Must I interrupt or pull down my higher thoughts from devotion faith and Spirituals to these which when a Pharisee boasted exact obedience of he remained but a Pharisee O Good Man value things as they are Thou wilt not neglect Earth I hope in order to Heaven or suffer thy Religion to leave thee Not Honest or Unjust Must thou not deal Truly in these lower things before thou art fit to be trusted in higher Or is Moral Justice an Heathen vertue meer stranger to the power of Godliness and Not regarded at all by the God of the Christians Does not thine own Saviour say Believe not me but believe Him and believe me but as I do with fidelity and trust dispense the the Truths of for and from Him that 1 Luc. 16. 10 11. He that is faithfull in the least is faithfull also in much He that is unjust in the least is unjust also in much If therefore ye have not been faithfull in the Vnrighteous Mammon who will commit to your Trust the True Riches Nor let any further excuse with the pretence of the Nature of Things He hath weaned himself from these lower to better Faith hope praise and prayer c. do so take him up that meaner things have less regard justly He is for the Heighth of Holiness And I will believe him as soon as that He hath climbed the Pinacles of Solomons Temple who is scarce got up the steps of Solomons Porch That he that is Unjust can be Holy or that Good man fitted to be a Citizen of the new Jerusalem a Free-man of the Kingdom of Heaven Who wants necessary qualifications to live in an honest well-governed Common-wealth on Earth Shall Heaven be furnished out with Dishonest men or the legal Members of that Citie be Defrauders and Deceivers Does not the 2 1 Cor. 6 9. Apostle say What can be plainer Be not deceived Some are apt to think so That the Vnjust Idolaters thievesor covetous shal ever Inherit the Kingdom of God
Ministers has as certainly possession present and continuall of Tythes in the severall Trustees or Persons of or for that Corporation which stand forth to Act for it being a thing otherwise onely in Nubibus and consideration of the Law That Right is vested in Them while they live When they die the Law has provided them of a Chain of never failing successours to supply their mortality Thus it has been Thus it is Thus it may be if Justice may be suffered to have its course and innocent forms of Justice not disturbed by parcimony and improvident troublesome folly and Thus is Religion and with us the Rule thereof the Bible provided for and possessed of in its publick Ministers sufficient outward visible support to the end of the world O Christian if thou be Think of this one word What it is to Wrong the Righteous to dispossess innocent poor Naboth of the inheritance of his Ancestors to thrust any Poor man out of his Own or get or Wish any helpless just man out of his Due and lawfull Possession If thou be such think of this O Christian CHAP. XXXI IT follows and is fitly joyned to the former In whose name this Possession is which may bring it about that in a strict sense indeed no Man was or is or can be thought to be immediately in possession of these Rights but God himselfe and that in the words and thoughts of the Law for I give not mine owne but onely as the Priest heretofore delivered forth the minde of his Oracle For 1 â—leta lib 4. cap 3. sect 1. Is Possidet cujus nomine nomine Possidetur says the same Oracle again Bracton de Assisa nov disseisin cap. 7. sect â— fol. 165. It is not so much He that is In as He in whose right he is in is strictly the Possessour As in a Tutor compared with his Pupil or a Servant with his Master c. And this then fitly advances us onward to the additional strength this Pillar of the Support of This Civil Right has by Anothers interessing That he that takes them up is never estated in them in his Own Right but the true and farther uttermost Possession of them is vested and seated elsewhere terminated Higher above in Heaven Men are Takers up of Gods Dues They doe receive what withdrawing his visible presence is His Right who should sure be least despoiled or defrauded and Persons they are in the sense before as to stand forth and act for a Supposed Corporation So Having another Personality to hold forth in being His receivers who though he be everywhere is yet to us Invisible To take up to His honour what is Devoted to His service who is the Soveraign Lord believed of All things JEHOVAH God Almighty This is much believed in the world and has very much affirmance even in our Civil laws nor can it if the thing be thus but much strengthen and settle this pillar of property whereupon as great security as Any must Needs rest for Injoyment and Continuance that Men shall not be put out for Gods sake nor from His right They be disturbed Who receive not from or for themselves but as His Deputy-Possessors and Receivers Vicars all by a substitution from the Highest in whose Right taking up what they doe they are the more bound to dispense in His service to His honour And who is he will be so bold to turn the Lords Steward out of doors if not for his own for his Masters sake or dispossess God and Religion subtract or withhold any thing from the Eternall Majesty Heaven 't is said and believed interesses it self in this case the Powers above have laid their Sacred hands upon these bequests and receits What is so settled by clear Human Law below has a bond of Religion to tie it on faster upon Whosoever are the 1 See Sir Hens Spelman of Tythes p 139. Usufructuaries The spoil wherof must needs be Then not that of Wrong but Worse not of Robbery but Sacriledge a Divine Theft the Robbery of Heaven like the Giants offence and of that Kinde the Eagle heretofore committed for love of her young Not sparing to take the smoaking flesh from the Altar wherewith the Gods should have been propitiated Bâ—t there hung thereto a fatal Coal that set all on fire and burnt both her nest her self and young ones A fearfull consideration if i should be so for still I argue upon supposition delivering forth the tendries of another my Oracle must bear me out enough to awaken the deadest and startle the wisest to amaze the boldest and affright all sober and any ways considerate and advised men from laying violent and profane hands upon that God had touched before or tugging it out by strength in this Case least they be not onely like that deplorable sort Against whom God hath a Controversie Hosea 4. 4. This People is Let them alone as they that strive with the Priest but worse Shall the Clay exalt it self against the Petter Wo be to him Esay 45. 9. that striveth with his Maker Into whose divine hands the Donations made and following Ratihibitions favour in expression intent of delivery That what to Religion was rather Devoted then Given even to Gods Great Majesty the Donee Receiver and intended Detainer and Disposer That so men might not but give forth to his Will what they receive by his Deputation being like to be thereby the better Stewards of those Manifold Gifts of God which they receive upon his account in his Name and from his Right and upon a second consideration should be the more precise in dispensing onely to his honour what for a second reason the hand of his providence dispenseth unto them to have so dispensed and yet farther the reason of whose proceedings and Justice may seem in equity to expect that they should not spend merely upon themselves but use Non quasi suis sed quasi commendatis what they receive of his bounty as His to be so and no otherwise but so used But to come to the strength of some Particulars not dealing onely with the supple and pliable affections to mould and frame them but stablishing the judgement in the thing averred or supposed That things devoted to Religion are not solely and ultimately Mans but in a further hand I will not urge the sayings of Poets and Oratours Councels Schoolmen and Fathers though these offer themselves but the glances of Scripture may be not inconsiderable at least to prove the possibility and elsewhere existence of the thing to which purpose I awake to remembrance first the vow of Jacob 1 Gen. 28 2â— Quicquid dederis mihi ejus Decimam omninò sum daturus Tibi Whatsoever thou shalt give out to Me the Tenth I will give back to Thee which promise he makes to his God And of Lands Vows Oblations c. 'T is said 2 Lev. 27 28. Every devoted thing is Holy to the Lord particularly 3 ib. ver