Grantor and to the Issue in Tail the Land in Law had been the parties to whom it was conveyed and Cesty que use he for whom the use was had nothing but Equity to recover the Profits But now since Littleton wrote all possession is transferred to the use and the Law changed Plow Com. 349. 6. 27. By a Statute made 2 H. 5. all such Jurors as were to be returned for Tryal of Issues joyned in any the Courts at Westminster or before Justices of Assize 2 H. 5. c. 3. second Parliam 11 H. 7. c. 21. were to have 40 s. by the year in Lands and Tenements c. By the Statute of the 27 Eliz. it is enacted 27 El. c. 6. That such Jurors shall have 4 l. by the year at least and so it is to be expressed in the Venire facias which is an alteration since Littleton wrote 28. All those special pleadings discussed by occasion of Littletons Text 23 H 8. c. 5. 7 Jac. c. 5. 12 Act 23 Octob. 1650. 21 Jac. c. 14. l. 3. sect 485. are taken away by several Acts of Parliament And by the last Act of the 23 Octob. 1650. liberty is given in all cases to plead the general Issue which is a great ease in most cases although in a Replevin the Law is rather worse then it was as is shewed in its proper place 29. By several Statutes since Littleton wrote the times for commencing of real and possessory and personal Actions are limited 32 H. 8. c. 2. 21 Jac. c. 16. First by the Statute of the 32 H. 8. and afterwards by the Statute of 21 Jac. By which Statute it 's said the Kings Right is concluded as well as all other persons and barred after twenty years in all real Actions These are abridgements of the Law since Littletons time 27 H. 8. c. 4. 1 Ed. 6. c. 14. 30. All those Laws mentioned by Littleton concerning Free Chappels and Chantries and the cases thereupon depending are at an end by those Statutes since Littleton wrote 31. By several Statutes made since Littletons time the petty Errors in Pleadings 32 H. 8. c. 30. 18 El. c. 14. Mispleadings and Jeofailes are helped and amended in real mixt and personal Actions insomuch as where at Common Law every mistake of a Letter Word want of Warrant of Attorney or Misreturn of any Writ or any other petty inconsiderable Error or Mistake 21 Jac. c. 13. was sufficient to destroy any Action or to arrest or reverse Judgement Act 1652. Now no Error before Appearance nor any Error but what is matter of Substance and of the Essence of the Action can prejudice the Suit This is an amendment of the Common Law 32. The Law concerning ordinary Jurisdiction and Spiritual Law as they called it which is discussed by Littleton Littleton l. 3. sect 648. Lib. 3. Sect. 648. hath been since altered by the Statute of the 25 H. 8. which restraineth the Ecclesiastical Laws 25 H. 8. c. 19. that they be not repugnant to the Common Law nor the Statutes and Customes of the Realm and since the same Law concerning ordinary Jurisdiction and Ecclesiastical Laws are abolished with the Hierarchy of Bishops c. and their Courts 33. Since Littleton wrote there were two Statutes made to preserve Remainders and Reversions in Lands and Tenement expectant upon Estates for Life 32 H. 8. c. 31. which it seems by the Common Law might be barred by a Common Recovery or thereby the Entry of him in Reversion or Remainder taken away But by those Laws such Recoveries by Tenant for life are void and the Entry saved by the last Statute of the 14 Eliz. 14 El. c. 8. which is contrary to the Law in force when Littleton lived although the first Statute be Repealed by that last mentioned 34. The like Law was concerning Tenant in Dower Coke Com. Lit. l. 3. sect 697. 11 H. 7. c. 20. If she had aliened in Fee with Warranty and dyed that Warranty had bound the Heir But now if Tenant for Life or in Dower alien it is a forfeiture and the heir may enter This is a good amendment of the Common Law 35. If Tenant in Tail be in possession 26 H. 8. c. 13. 33 H. 8. c. 20. or that hath Right of Entry be attainted of High-Treason the Estate Tail is barred and the Land forfeited But this Attainder was no Barre at the Common Law nor when Littleton wrote 36. If Tenant in Tail levy a Fine with Proclamations 4 H. 7. c. 24. Coke Com. Lit. l. 3. sect 708. according to the Statute this a Barre to the Estate Tail but not to him in Reversion or Remainder if he maketh his Claim or pursueth his Action within five years after the Estate Tail spent But the Law was otherwise when Littleton wrote 37. When Littleton wrote if the Kings Donee in Tail the Remainder in the King had suffered a Common Recovery the Estate Tail had been barred but not the Reversion or Remainder in the King and if such Donee had levied a Fine with Proclamations 4 H. 7. c. 24. 34 H. 8. c. 20. Coke Com. Lit. l. 3. sect 708. after the Statute of the 4 H. 7. this had barred the Estate Tail although the Reversion were in the King But since by the Statute of the 34 H. 8. a Common Recovery had against the Tenant in Tail of the Kings Gift or such a Fine levied by him the Reversion continuing in the King is no Barre to the Estate Tail wherein the Law hath been changed since Littleton wrote 38. By several Statutes made since Littleton wrote the wife of a man attainted of Misprision of Treason 1 Ed. 6. c. 13. 5 Ed. 6. c. 11. 5 El. c. 1. 11. 18 El. c. 1. Murther or Felony is Dowable which was not so favoured at the Common Law 39. By the Statute of Westm 1. No Sheriff or Minister of the Kings was to take any thing for execution of his Office 23 H. 6. c. 10. 19 H 7. c. 8. 29 El. c. but what the King allowed to him and is was so by the Common Law But by Statutes afterwards of which two are since Littleton wrote Fees are allowed to be taken by such Officers 32 H. 8. c 32. 40. By the Common Law no Executor or Administrator of Tenants in Fee-simple or Fee-tail had any means to recover Arrerages of Rents and Services due in the life-time of such Tenant Now the Law is altered and such Executors and Administrators are by Statute enabled to sue for and recover the same 27 H. 8. c. 10. Coke Com. Lit. l. 3. c. 5. sect 384. 41. By the Statute of 27 H. 8. If a man seised in Fee-Covenant upon good Consideration to stand seised to himself for life and to the use of his eldest Son in Tail with the Remainder to his second Son in Tail with Remainders over c. and to
18. (l) Coke Com. Litt. l. 1. c. 6. sect 5. 381. Coke l. 6. fo 37. l. 10. fo 38. Occupancy is onely where there is no proper Owner Gessend de Philos Ep. c. 1756. The Law concerning Occupancy when a man hath a Lease of Lands for one or more other mens lives granted to him without the word Heirs the Grantee dyeth now whosoever after his death first enters and claims the Land shall have it during the Lease without any other Title whereas if it cannot go to the Heir it should come to the Executor This is an unjust Law and serveth for nothing but to cozen simple men of their Right 1 Thess 4.6 Lev. 19.13 Exod. 20.17 Mic. 2.2 Rom. 13.9 Before Dominion was setled the first Possessor had a Property which Pliny calls Proprium habentes and Grotius Jus occupantis but this is at an end because every thing hath an Owner 19. (m) 40 Ed. 3. 34. b. 2 R. 3. 15. Finch 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 fo 12. That a man being Outlawed and his wife waved in a Personal Action and the wife taken upon the Utlawry she cannot reverse the Utlawry nor get out of Prison by the Law unless her husband will joyn with her in a Writ of Error to reverse the Utlawry when it may be the Utlawry was sued by the consent or practise of the wicked husband I have known the like done This Law tends to overthrow Oeconomy or Houshold-Government Upon such an occasion it 's said the Judges gave this Rule That it was a Trick to be rid of a Shrew But this clearly against the 5th and 6th Precepts of the Decalogue and many other parts of holy Scripture Gen. 2.24 Exod. 21.10 2 Sam. 12.3 Mat. 19.6 Mar. 10.9 20. (n) Westm 1. c. 4. Cok l. 6. f. 107. a. Cust Norm tit â—â—â—eek c. 17 New Term law verb. Wreck Plow Com. fo 243. b. The Law concerning Wrecks of the Sea If a Merchant fraught a Ship hire a Master and all Officers and Mariners and send his Son to Sea in it all these suffer Shipwreck through the hand of God by Tempest or other Disaster and the Ship is lost and no living creature Man Dog or Cat cometh alive to shore but many of the Goods float and are driven to land In this case the Owner shall by the Law have none of these Goods but they belonged to the King or to the Lord of the Mannor who if he had a Grant of such Wrecks shall have the Goods This is an unjust and cruel Law and addeth affliction to the afflicted and causeth the wicked people who live by the Sea-side to wish and wait for such Disasters that they may get the Goods calling the Goods so gotten Gods good Zeph. 1.15 Amos 15.15 Obad. 13. Phil. 2.16 Jam. 1.27 Bodin Repub. l. 1. 179. It is a thing saith a Learned Statesman truly most barbarous and not anciently used by Soveraign Princes shamefully to suffer thâ— Reliques of the Goods and Fortunes of such as have by Shipwreck miserably perished and whom we ought with some part ot our own to relieve being cast upon our Coasts and which ought to be restored to be shamefully spoiled 21. The like unjust Law is this If Goods be taken from the (o) Wingate Law c. 11. p. 19. n. 23. Owner by an Enemy the Property is changed and the Owner shall not have them restored unless he recover them before the Sun go down although he finde them afterwards (p) Godw. Ant. Rom. l. 3. sect 4. c. 16. The Romans had a more just Law in this point viz. That by Theft no man should gain a Property in Goods but the Interest should alwayes remain with the Owner to take them whenever he could finde them So is Gods Law Lev. 19.13 Luke 19.8 Tac. Hist l. 4. c. 17. p. 159 Certain persons were appointed amongst the Romans to see Restitution made of those things which had been by force taken away in time of War And the Law of the Twelve Tables seems to warrant this 22. The Law concerning Gavil-kinde Lands where all the (q) Kitchen fo 102. Camd. Brit. p. 239. Sons shall inherit as Coheirs and such Tenures where all the Children shall inherit together This is against the Law of God who hath appointed the eldest Son to the place of his Father as Prince of the Family and to have a double Portion of his Goods if he do not forfeit it by some notorious Crime as Reuben did Therefore Judah had the Kingdome Joseph the Double Portion and Levi the Priesthood Deut. 21.17 1 Chron. 5.1 2. Gen. 49.3 Gal. 4.1 Heb. 12.16 (r) Bodin Rep. l. 5. c. 2. p. 571 Bodinus in his Republique would have a double portion of Lands and Goods assigned to the elder and the rest an equal share 23. The like may be said of the Tenures in Borough (t) Cust Norm tit Tenure par Burgaye fol. 135. b. Kitch fo 132. English and Copyhold-Estates where the youngest Son shall inherit contrary to the Law of God and Nature which Custome grew as some pretending to know much of such Customes have said That these Lands or many of them being held in Villainage although now purchased by Free-men who are not nor can thereby be made Villains the Lord did usually lie with the Tenants wife the first night after the Marriage and therefore they obtained this Custome lest the Lords Bastard not being a Bastard in our Law should inherit as possibly it might be This I will not positively affirm to be the ground of the Custome though I have seen a very ancient authentick Evidence testifying such a power in the Lord And I dare say it 's easie to make appear That divers Mannors and Lands in England were anciently granted to hold upon such terms and upon other such-like wicked Covenants if not Customes not fit to be inserted in regard of the baseness and filthiness thereof Littleton saith The yongest Son should inherit in regard he is least able to (t) Littleton tit Villenage l. 2. sect 211. help himself which is no reason for if Littleton mean that he is less able in respect of ability of body to fight or defend himself or to work Experience shews That the younger is many times more able and the eldest less fit and more indisposed to labour in respect of his Primogeniture And if it be meant in respect of Estate if the Customary Tenant have two Sons and nothing else but the Land so holden and that go to the youngest Son what ability hath the elder to himself more then the younger would have had being in his condition (u) Poult Pax Reg. Regni tit Appeal fo 157. b. The youngest in this case shall not have an Appeal for the death of his Father This Custome is clearly against the Law of God and Nature Deut. 21.17 1 Kings 2.15 Weemse M.L. Com. 5. Exercit 7. p. 41. 24. (w) Stat. 51
Pax Reg. Regni tit Pardon f. 218. b. 219. a. 2 Ed. 3. c. 2. 4 Ed. 3. c. 13. 13. By the Common Law the King had Power to Pardon Murther and it hath been commonly used in former Ages whereby the Land hath been defiled with Blood This is an Impious Priviledge or Custome and clearly against the holy Law of God and seemeth likewise to be contrary to the Kings Oath although by a Statute of Edw. 3. Chap. 2. it appears such Pardons were very common and ate available in Law against an Act of Parliament being made with a Non obstante c. Prov. 28.17 Jam. 4.12 Exod. 21.12 Weems M. L. Com. 6. Decal Exercit. 9. p. 131. (z) Sueton Tranq in vita Julii Caesaris sect 89. in fine It 's written That of all the Senate who murthered Julius Caesar there was scarce one that either survived him three years or dyed a natural death The Historian saith They were all Condemned and it doth not appear that any one of them had a Pardon (a) Bodin Rep. l. 1. p. 174. p. 175. No Soveraign Prince or any Man living can pardon the Punishment due to the Offence which is death by the Law of God no more then he can dispense with the Law of God whereunto he is himself subject 14. (b) Custom Norm tit Tenure par Homage fo 27. b. Kitchin Court-Baron Cowel Inst l. 2. tit 3. f. 3. p. 115 S. 15. p. 119. Wingate Law c. 7. p. 13. n. 29. The Oathes of Homage and Fealty to Lords of Mannors are Snares upon mens Consciences and savour of Tyranny and Oppression The Oath of Homage besides that which is mentioned in the old Books the substance whereof was That the Tenant would be the Lords True-man hath many trivial additions to it which are not of concernment enough to be the cause of an Oath and other things not fit to be sworn unto and all are against that Law Thou shalt swear in Righteousness and Judgement Jer. 4.2 Exod. 20.7 Jam. 5.12 15. (c) Finch 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 2. f. 20. b. fo 21. a. The Attributes of God in the Law given and ascribed to the Kings of England are too high if not Blasphemous viz. Majesty Soveraignty Most Sacred Majesty Infinity c. Ubiquity Immortality Perfection Verity Absolute Justice c. (d) Co. Tit. Pa. to his 5 6 7 8 9 10 11 Rep. Plowd Com. fo 234. a. 177. a b. And by Sir Edw. Coke seven times King James is called Le Fountain de tout Piety Justice la vie de la ley The Fountain of all Piety and Justice and the life of the Law O fearful Blasphemy Although it must be conceived that these Attributes are but Analogical Expressions yet it may be observed That such Arrogancy especially when by this temptation it 's taken to himself of whom it 's spoken (e) Such Emperors and Princes who have taken that Honour to themselves which is due to God alone as did Caligula Domitian Commodus Antiochus c. have all and alwayes miserably perished Jun. Brut. vind contr Tyrann p. 14. is a certain signe of Ruine as was seen in Herod when the people cried The voyce of God and not of man then was he smitten c. Acts 12.22 23. He that said Mine honour will I not give to another will endure no such pride (f) Gualdo Priorato Bell. Germ. p. 125. Battel Luâ—zâ—n p. 19 20. Divers of the Roman Emperors would not suffer themselves to be called â—oâ—l Jun. Brut. vind contra Tyrann p. 51. That famous worthy Gustavus King of Sweden foretold his own death upon this very ground and although he protested against the impious Acclamations of the people was slain within two dayes after they were given to him We condemn such Hyperbolical Titles in the Turkish Emperour and the Pope and by such means the Heathen Babylonians (g) Coel. Rhod. Lect. Antiq. l. 8. c. 2. p. 281. Persians and Râ—mans came to Deifie their KINGS and EMPEROURS But (h) Suet. Tran. in vita Augusti Caesaris sect 53 Augustus Caesar abhorred such Flattery and refused so much as to be called Gracious Lord (i) Corn. Tacit. Prooem l. 1. Annal. p. 1. l. 2. c. 19. p. 61. but was called Prince and it may be observed That Almighty God to prevent such arrogancy when he saith I have said Ye are Elohim Gods or as the word signifies Mighty Judges presently addeth that Ye shall dye like men All must remember this Psal 89.6 1 Sam. 2.30 Isa 42.8 48.11 Dan. 4.30 36. Acts 12.22 A very Learned man hath set it down Bodin Repub. l. p. 181. That for a Soveraign Prince to arrogate to himself the Titles of Most Excellent and Sacred Majesty is absurd the one being a point of Lightness and the other of Impiety For saith he what more can we give to the most Mighty and Immortal God if we take from him that which is proper to himself And he censureth the Princes of Germany for that in a Letter to the King of France there were V. S. M. which is Vestra Sacra Majestas which he calls An addition proper unto God 16. That a Disseiser taking a mans Land from him by (k) Littleton l. 3. c. 6. sec 385. Coke Com. Lit. upon the same place fo 238. a b. Coke l. 2. fo 56. Doct. Stud. c. 8. fo 16. force after a Discent he that hath Right and is the true Owner of the Land cannot enter upon the Heir of the Disseiser This is an unjust Law and a ridiculous thing That he that hath Right may not enter This was a Custome used in favour of such whose Ancestors had entred upon other mens Lands in the time of Wars and put out the Owners Then the Conqueror or Prevailing Party allowed this Priviledge to such of his Party who had so entred Here a man by doing Wrong gets a Right and the Magistrate ought to remedy it Isa 58.6 Ezek. 45.9 Psal 7.16 Luke 3.14 Mich. 2.2 Charta Forestae cap. Manwood Forest Laws par 2. n. 1. par 1. p. 139. 21 Ed. 1. c. Cowel Instit verbo Forest 17. The Laws concerning Chases Parks and Warrens are a great Oppression to the Common-wealth as now things stand as it 's partly declared before where the Charter of the Forest is spoken of It 's true King William the Conqueror had a Title which he got by his Sword and by his Bowe and had the more reason to dispose of those Lands as he pleased and of the Lands adjacent as men would hold of him But now time and it may be lawful Purchasees have made men Owners of such Lands and to make them subject to the Forest-Laws is a great Oppression and contrary to all those Laws of God which forbid Oppression It is to be hoped these waste grounds will be put to better use 2 Chron. 16.10 Isa 1.17 Prov. 22.16 Ezek. 18.7
lives which they could not do when Littleton wrote 37 H. 8. c. 10. 10. Before the Statute of the 27 H. 8. If Cesty que use had dyed his Heir within age the Lord shâ—uld have had the Wardship of the Heir 4 H. 7. c. 41. If the Feoffee had dyed his Heir within age the Lord should have had the Wardship of his Heir also so there should have been two Wardships for the same Lands But this is altered by the same Statute 11. The Court of Wards 33 H. 8. c. 22. 32 H. 8. c. 46. erected by vertue of the Statutes made since Littleton wrote altered very many things in the Law as may be seen by the Statutes And particularly he that was possâ—ssed of a term for 100 years or more was judged to dye seised Repugnant to the Common Law 12. 32 H. 8. c. 24. 27 H. 8. c. 27. 1 Ed. 6. c. 14. 31 H. 8. c. 13. 37 H. 8. c. 4. The whole Rabble of those Ecclesiastical persons as they are called Regular and many of those called Secular are dissolved by several Acts of Parliament and so the many Laws concerning them are thereupon out of use And all the Priviledges granted to the Cestercians Hospitallers or Priors of S. John's of Jerusalem and other Superstitious Houses to be freed from Taxes Toll and other Secular Serviâ—es except non-payment of Tythes are altered and changed and now those Lands are usually charged to all payments as others are 13. The Statute appointing 21 H. 8. c. 4. That such a man's Executors as prove his Will and take upon them Administration thereof may sell a man's Land devised to Executors for payment of Debts or Legacies although others named Executors do refuse to intermeddle or to joyn in the Sale and the Sale is good That Statuâ—e was made since Littleton wrote which is contrary to the Common Law 14. The Statute of the 21 H. 8. Chap. 19. 21 H. 8. c. 19. Coke Com. Lit. l. 3. sâ—ct 444 447. gives the Lord power to avow upon the Land for Rent or Services or Damage faisans without naming his Tenant because there are sometimes secret Conveyances made to strangers to cousen the Lord of his Serviâ—es and this an Alteration of the Common Law 15. All the Laws and Customes concerning Villains Cok. Com. Litt. Tâ—t Villenage l. 2. c. 11. sect 172 175 176 177 189 c. mentioned by Littleton That the Lord might kill them sell them or use them are in a manner abrogated or worn out of use by reason that most of the Villains and such as held in Villainage are Copy-holderâ— and by some act either in Deed or in Law are Manumitted which alters the Law in many particulars since Littleton wrote 16. The Tryal of men for Treasons and Felony 22 H 8. c. 1. 1 2 Phil. Mar. c. 10. 33 H. 8. c. 20. 23. and other Tryals between and Party and Party in Personal Actions have been in several particulars altered by Acts of Parliament 27 El. c. 6 7. 4 5 Ph. M. c. 7. and the Forms changed and new Pleadings and Proceedings introduced since Littleton wrote 17. There are several Acts of Parliament made since Littleton wrote 31 H. 8. c. 1. 32 H. 8. c. 32. Litt. l. 3. sect 290. by vertue whereof partition may be made by Joynt-tenants and Tenants in Common which is otherwise at the Common Law and is an alteration thereof 18. There was an Act made in the 31 H. 8. That the Mannors 31 H. 8. c. 3. Lands and Tenements of Thomaâ— Lord Cromwel and many others to the number of 34 persons lying in Kent being Gavel-kind-lands should descend as other Lands at Common Law This an alteration since Littletons time 19. There are by Statutes since Littleton wrote divers Conditions annexed to Offices 5 6 Ed. 6. 16 which may forfeit the same and were not so at the Common Law 20. Before the Statute of the 32 H. 8. Chap. 34. no Grantee or Assignee of a Reversion 32 H. 8. c. 34. by the Common Law could take advantage of a re-entry by force of any Condition but by that Statute the Grantees or Assignees of any Reversion c. of any Lands c. shall have advantage by entry for Rent or doing of waste as the Lessors or Grantors themselves might have had 21. There were at the Common Law two sorts of Divorces 1. A Mensa Thoro 2. A Vinculo Matrimonii and many ridiculous causes of Divorce of which Adultery is not reckoned to be one against the Law of God 32 H. 8. c. 38. 2 Ed. 6. 23. 1 El. c. 1. as pre-contract without Consummation Consanguinity or Affinity in Cousin Germans and so to the fourth Degree The marrying or carnal knowledge of any person of Kin to the second Marriage-kindred within those Degrees Divers of which are remedied by Acts since Littleton wrote and the rest are antiquated and for shame disused and now all men may marry any person not prohibited by Gods Law and regularly nothing is a cause of Divorce but Adultery and yet Causa frigidâ—tatis sive Impotentia hath been allowed by the Bawdy Bishops 32 H. 8. c. 33. Coke Com Lit. l. 3. c. 6. sect 385. 22. At the Common Law if a Disseissor Abator or Intruder had dyed seised soon after the wrong done the Disseissee and his Heirs had been barred of Entry without any time limited by Law But by a Statute made since Littleton wrote such Disseisees nor their heirs are not barred except the Disseisor hath been in quiet possession five years without Entry or continual Claim 23. So likewise if the Disseisor had been longer possession Littleton l. 3. c. 6. sect 385. by the Common Law the Disseisee could not have entred upon him nor could the Disseisee have entred upon the Feoffee of the Disseisor if he had continued a year and a day in quiet possession But now the Law is altered and onely a dying seised is a Bar in some cases 24. By the Common Law after a Fine levied Littleton l. 3. c. sect 441. 4 H. 7. c. 24. 32 H. 8 c. 36. he that had right had but a years time to enter after which he was barred But by the Statutes made since Littleton wrote he that hath right hath five years allowed to him to enter after the Fine perfected 25. By several Statutes since Littleton wrote 2 3 E. 6. c. 24 34 35 H. 8. c. 14. 3. H. 7. c. 1. 1 Ed 6. c. 7. 33 H 8. c. 9. Coke Com. Lit. l. 3. sect 442. 27. H. 8. c. 10. Coke Com. Lit. l. 3. sect 463 464. divers powers and authorities are given to Justices of Assize which they had not at the Common Law nor by any Statute before those Statutes were made 26. By the Common Law if a mans Land had been granted or setled to another to the use of the
have weight laid upon him as much as he can bear and shall have one day three bits of Bread the next day Gutter-water given to him and so every day until he dye with pain The practice is somewhat altered in the execution for the Condemned is Pressed to death presently and every one that will is his Executioner This is a wicked Law and contains three Offences 1. The Punishment is barbarous for that there is no Offence in this world against men but a man's life taken away is a sufficient satisfaction without any such lingring death 2. The party being Guilty is not bounden to accuse himself upon his Tryal much less ought he to be enforced to tell a Lye and say he is Not guilty 3. The great Offence is That he is Condemned without Proof 2 Cor. 13 1. Heb. 10.28 Deut. 17.6 Numb 35.30 Joh. 7.51 To this may be added Setting men upon the Rack (m) In sime of Popery this was frequent and hath been since used for discovery of Treason Examining them by Torture a Devillish Invention not long since practised and warranted by our Law 10. The Laws concerning Parishes Parsons Vicars Curates Deacons Churchwardens Advowsons Presentations to Churches Jure Patronatus Non Admisit Quare Impedit Quare Incumbravit Darrein Presentment Restitutione Temporalium Conge Desleir Admittances Institutions Inductions Ne Admittas Vi Laica Removenda Excom Deliberando cautione Admittenda Dedimus Potestatem ad Elegendum Abbatum Lincences to Preach Suspensions Ecclesiastical Censures in Ecclesiastical Courts These all are unlawful as being the Inventions of men to thrust out the Officers and Order which Christ hath left in his Church (n) Godw. Ant. Rom. l. 3. c. 2. p. 135. c. 3. p. 142 143. Fuller Holy State l. 2. c. 12. p. 87. Ex Conc. Toled 589. can 9. An. Coke Rep. l. 5. Cawdreyes Case c. 3. p. 48 49. c. 4. p. 72 73. c. 7. p. 169. thence to p. 356. The Parishes are the Hearch which keep in all these Superstitions and they were taken up by the Church of Rome from the Heathen Romans as likewise were their Pope or Fontifex Maximus their Orders of Priests Deductions Consecrations and many other Paganish and Idolatrous Superstitions And from Rome were hither sent and continued here all along by the Popes Power until the Reign of King Hen. 8. when he took upon him the Popes Office 25 H. 8. c. 20. Wingate Law c. 38. p. 62. n. 20 21 28. to be the pretended Head of his pretended Church of England Lev. 20 23. Ezek. 11.12 Hos 14.8 2 Cor. 6.16 Deut. 12.3 Cock English Law p. 16 22. 11. (o) Fitz. N. B. 269. b. Coke l. 5. fo 25. 2 H. 4. c. 5 15. 2 H. 5. c. 7. The Law for Tryal and Conviction of Hereticks delivering them to the Secular Power to be burned the Writ Haeretico Comburendo put in execution against the faithful Servants of God called by a Nick-name Lollards about the time of Rich. 2. and Hen. 5. and afterwards whom the Lord Chief Justice Coke concludes to be Hereticks and deriving their Name from Lolium as the Papists did rehearseth that impertinent Verse of Virgil Infoelix Lolium steriles dominantur avenae They were the followers of (p) Rast Entr. Haeres 1. White Way true Church sect 50. p. 393. Fox Acts and Mon. Vol. 1. p. 608 657 659 846. John Wickliff whose Opinions we may finde in Fox his Acts and Monuments and Symson his Church-History These and those afterwards by vertue of the Statute of the Six Articles were put to death onely for matters of Faith and Opinion without any disturbance to the State (q) Dalt offic Vice Juram Vice fo 4. All High-Sheriffs were Sworn even to the time of the beginning of these late Wars to extirpate these Servants of God and the Anabaptists which onely (r) Swinb Treat Willes par 2. sect 14. par 5. sec 2. deny Infant-Bapitism are reckoned amongst Hereticks By this we may judge what our Law-givers were and what was a principal end of the Law viz. The destroying of the true Faith and the rooting out of the sincere Professors of the Gospel which is a principal Mark of Antichrists Power These are Impious Laws and the execution most abominable Rev. 16.6 17.6 18.24 12.13 Gen. 4.10 Luke 11.50 51. Gal. 4.29 These Customs taken from the Romans Tac. Annal. l. 12. c. 11. p. 171. 12. (s) Litt. l. 2. tit Villenage sect 172 Coke Com. Litt. l. 2. sect 177. sect 189. Wingate Law c. 9. p. 17. n. 3. n. 5. Poulton Pax Reg. Regni tit Appeal fo 159. a b. Littleton tit Villenage l. 2. sect 190. The Laws and Customes concerning Villains and Villainage mentioned by Littleton and others observed by Coke in his Comment upon Littleton and plentifully discoursed of in the Old Books are Heathenish and wicked Customes That the Villain is as the Lords Goods and at the Lords absolute Disposal and so are his Wife and Children (t) Those whom we call Villains Niess thâ— Romans called Adscriprivos Glebae they plowed laboured and might be sold as the Romans Slaves That the Lord may enter upon him and take his Lands Tenements Rents and Chiâ—dren And although he that is pretended to be a Villain bring his Wriâ— to prove himself free the Lord may seise him as his Vilâ—ain (u) Appius Claudâ—us sâ—ised Virginia upon this pretence Tit. Liv. l. 3. p. 117. b. Pendente Lite and if the Lord rob the Villain he shall have no Appeaâ— against him And it hat been said That if the Lord ravish his Nief that is his She-Villain she could at Common Law have no Appeal of Rape against him but Littleton saith the contrary (w) If the Loâ—d marry his Nief or she villain and die seised of Land in Fee this wife shall not be endowed because she was his Villain Jo Perk. tit Dower sect 314. These Laws above-mentioned are too bad for Turks much more to be abhorred and rejected of Christians as being against all those Laws of God which condemn unmercifulness and injustice towards inferiours Exod. 1.13 14. Lev. 25.42 43 46 53. Eph. 6.9 Col. 4.1 Prov. 12.10 Luke 6.36 1 Kin. 9.22 There was nothing more regarded in the foundation of Christian Common-wealths then the discharging of Slaves and Villains and such Common-wealths were free from Slaves ever since the year 1250 as a (x) Bod. Rep. l. 1. c. 5. p. 39 40. p. 45. Those Slaves are at large described as above is said Cowel Instit lib. 1. Ti. 3. sect 3 4 5. Learned Lawyer hath observed who taxeth England and Scotland for continuing such Customs and Services upon their Tenants And likewise saith the Law of the Twelve Tables still in force in West-Indies and Africk as too rigorous towards Debtors and Servants (y) Rast Entr. tit Appeal fo 51. b. 27 H. 8. c. 24. Poul
Tyranny of Antichrist stir up men whom we may well say were sent of God to preach the Gospel although they were not ordained by any Presbytery unlesse it were by the Presbytery or priest-hood of the Church of Rome which upon their conversion they utterly renounced and I doubt not to say but that those who are apt to teach and able to divide the word of truth aright and are willing for conscience sake and the glorie of God in the conversion of Souls to spend themselves in teaching the word of God to the world may have a sufficient call and Warrant thereunto from God without the laying on of the hands of any Presbytery which ceremony I take to have been annexed to miraculous and extraordinary gifts of the Holy Ghost bestowed on men in the first setting out of the Gospel and not to be used where such extraordinary gifts of tongues Prophesie and miracles are ceased no more than that ceremony of anointing the sick with Oyl being also used in those dayes and accompanying the gift of healing they are now used with us (r) Calvin Institut l. 4. cap. 19. pag. 72â— 724. as they have been and are used in the Church of Rome the one called the Sacrament of Orders and th' other of extream Unction and both these ceremonies of imposition of hands and anointing were used likewise by the Papists in their Sacrament of confirmation and I doubt not but all of them are promoted by the Jesuits and Romish Priests at this day amongst us It cannot be shewed that either Petrus Valdus or his followers called Waldenses and Albigenses of whom there (Å¿) Regenvolsc Hist Eccl. Slavon l. 1. cap 3. p. 12. 30 31 32. Sympson Chuâ—ch Hist lib. 2. cent 12. p. 429 430. pag. 321. Whites way true Church sect 44. numb 1. Ex Ramerio in Biblioth Patr. Tom. 4. Par. 2. 1 Corint 9.7 9.11 12.14 Gall. 6.6 Luke 10.7 were fourty Churches Anno 1254. received these ceremonies where it also appears that the brethren for so the Church Members were called did send out many of the Members to preach the Gospel in other places in Greece and Thracia c. and they were incouraged by the Kings Letters Patents pag. 35. 36. Now for the maintenance of the Ministers of the Gospel according to their several functions or rather difference of imployments generally they are to have t liberal maintenance according to that of the Apostle God hath ordained that he that preacheth the Gospel should live of the Gospel The first sort that is those that preach to the world are to be maintained by the world and because the wicked world having weak eyes think nothing a greater torment than the light the Civil Magistrate is to see to the maintenance of these Ministers and may lawfully raise it upon the world although against their wills as the Magistrate doth provide for such mad men and Idiots as cannot guide their own Estates and dispose thereof for their necessary use and benefit (a) Tim. 5.17 18. Math. 10.9 10. And for th' other sort of Ministers they ought to be provided for by the Churches according to their abilities and none of these to be maintained by Tythes for the reasons herein before alledged Now although I affirm that the work to appoint Pastors and Teachers lieth chiefly in the power of the temporal Magistrates yet I conceive it necessary that godly learned men be consulted with who may satisfie the Magistrate touching the learning and ability of such who are to preach the Gospel as is used in some reformed Churches where Tythes are abolished But that which will be said against this kinde of maintenance of Ministers not by Tythes is that which is usually objected viz. That no way can be found out so certain equal and indifferent for maintenance of the Ministry as by Tythes which are setled by so many Laws For answer hereunto I will not at large handlâ— that controversie which requires a volume larger than what this Treatise can permit having writ something elsewhere touching the same I shall onely propound a clear remedy for cure of the many junglings and wranglings which are daily between the Ministers and people about payment of Tythes which both hinder the study of the one and discourage the labour of the other and continually disquiet them both hindring the preaching of the word of God and obstructing the good effect thereof The remedy I humbly propound is this Provision for Ministers of the Gospel without Payment of Tythes Let there be a survey of all spiritual promotions as they are called such as that in Edw. 2. his time and then let all gleab Lands Tythes Oblations Obventions and other profits claimed and by Law belonging to the Parsonages Donatives Vicars be sold to the owners of the Land and estates out of which they arise or to others if they refuse to buy the same at sixteen years and two thirds of one years purchase and that will raise just so much money being disposed of at six in the hundred as is now due or payable to the Persons and Vicars For example that Parsonage which is found to be threescore pound by the year Communibus annis shall at this rate be sold for 1000. l. which yields threescore pounds by the year and if this rate be a little too dear for the tythes the Gleab-lands will make amends which for the most part are the best Lands in every Town and without doubt the Owners of the Lands charged with Tythes were better to give twenty years purchase for the Tythes than to pay them constantly being an exceeding curb and oppression both to the Tenant and Owner of the Land and this is the remedie I propound And if the same were done then might the money raised thereby be allowed to such as are able faithfull and willing to preach the Gospell and then such as are ignorant insufficient scandalous and prophane may be kept out of this service for that although the (x) Luke 4.34 Devil and wicked men may preach Christ in some sort (y) Math. 10.4 5 7. as some say Judas did yet it doth not appear not is to be believed there being no word of faith to warrant it that ever any man not walking in the wayes of God or not being converted ever (z) Jerem. 23 21 22. Luke 22.32 Daniel 12.3 Mal. 2.6 7 8. turned any one from his unrightousnesse that being one of the most glorious workes of God which he doth not use to act by wicked men which appears clearly by many Testimonies of holy Scripture * Dr. Brian in Mal. 3. Dr. Grew in Ephes 2.1 2. Acts 9.4 5 6.15 16. It is a point commonly insisted upon that God doth no great work by any man but he first humbleth him And this is all I shall say touching this matter being so long a digression onely as appertaining to the matter in hand I set it down as a defect in our Law