1. sect 1. And ' tu true it use in the Text. De Marchia vel Ducatu vel Comitatu vel alia regali dignitate si quis investitus fuerit per beneficium ab Imperatore ille tantum debet habere haeres enim non succedit ullo modo nisi ab Imperatore per investituram acquisierit lib eod tit 14. Though perhaps it be not strictly executed But this it seems the Law other States nor was it in ours if it be right feodal where the fee was either for 2 Or not so long but dum bene se gesserit at first as an ecclesiasticall man keeps his Benefice or as Tenants at the will of the Lord to be outed upon distaste as a stipendary servant from his ten pounds a year For the Fee was nothing but so much land given for observance To suppresse outrages maintain the Lords title and help keep the rest in awe Take the best anthority Antiquissime enim tempore sic erat in dominorum potestate connexum ut qvando vellent possent auferre rem in feudum a se datam retained to this day in Castleguard saith the Glosse as a Generall discharges a Captain at pleasure postea vere eò ventum est ut per annum tantum firmitatem haberent deinde statutum est ut usque ad vitam Fidelu produceretâ—r so an involved condition of Loyalty sed cum hoc jâ—re successionis ad filios non pertineret sic progressum est ut ad filios devenâ—ret in quem sc dominus hoc vellet beneficium confirmare so now to a man and his son no more uòd hodie ita stabilitum est ut ad omnes aequaliter filios pertineat not as in Gavelkinde divisible which was unusuall in Fees as Sir Henry Spelman in Gloss p. 257. but to one and all successively for so many lives he had the father and all his sons that All might succeed in All for before onely one was taken in ad quem c. Afterward about the year 1025 the favour was inlarged 2. Cum verò Corradus Romam proficisceretur petitum est a fidelibus qui in eius erant servitio ut lâ—go ab eo premulgata hoc etiam ad nepotes ex filio producere dignaretur Now Grand children taken in understand immediately to succeed their Grand-Father their Father dead ut frater fratri sine legitimo haerede defuncto vel filius in beneficio quod eorum patris fuit succedat now to his father immediately so here in a second succession a third possession secured to a man his son and that sons Brother or to a man his son and that sonnes son But this held not unlesse the first Donee were in the line ascendant Sin autem unus ex fratribus à domino foudum acceperit eo defuncto sine legitimo harede frater ejus in feudum non succed it and so goes on to regulate and limit other remoter or collaterall successions ending at last in In masculis descendentibus hodie nove jure usque in infinitum extenditur Gerardus Niger Feud lib. 1. tit 1. By these degrees things crept up Sr. The Ridley acknoledgeth two sorts of Feuds Temporall and Perpetuall View of the Laws par 1. chap 4. sect 2. life so long as the known Miles lived or for his son after him excluding his daughter though since the daughter was admitted because she might marry a Souldier and so both she and the son new admitted It was not so and the law just while it was but a military Benifice as to succession as an Ecclesiastical 3 For the Lumbards from whom the Feuds first came or at the least were chiefly derived from them directing all their policy as the Lacedaemons did to matters of warre had no feminine Feuds among them But after by processe of time there were created as well feminine Feuds as masculine c. So goes on Sir Thomas Ridley in the same Section And the reason is given more explicite by P Robâ—ff Qum foemina non potest ita bene defendere dominum its Bello vel aliás servire sicut vir ergo nec feudum habebit cùm drâ—â—r ob servitium though by custome it be in France otherwise Feud Decl. p. 3. Septimo The bottem of all is that of the Ruling Law Hoc autem notandum est quod licet filiae ut Masculi patribus succedant legibus tamen à successione feudi removentur similiter earum filii nisi specialiter dictum fuerit ut ad eas pertineat Gerardus Nig-lib tit eisdem sect 3. And so 't was in the Salike law wherein inter caeteros spectatissimus est iste paragrophus In terram Salicam Mulieres ne succedant or as others more fully de terra vero Solica nulla portio haereditatis mulieri veniat sed ad virilem sexum tota terrae haereditas perveniâ—t apud D. Spelman Glossa page 442. in vocab Lex Salica The meaning whereof has been expostulated at the cost of Armies of men and Millions of treasure between us and FRANCE a few lines are not fit to interpose for umpirage after so many and horrible contestations Again it is somewhat special here that if I have a wife and she be an inheritrix and I have a child by her whose life is discernable by crying that 1 Lex quidem Angliae est ut si quis uxorem baereditatem habentem duxerit vel aliam terram habuerit in feodo ratione maritagii vel alia causa donationis quod feodum habeat liberum tenementum si liberosâ—inter se habuerint ex justis nuptiis procreatos si ipsa praemoriatur remanebit viro terra mulieris tota vita ipsius viri sive superstites fuerint liberi sive mortui dum tamen sonum emiserint aut clamorem qui audiatur inter quatuor parietes si hoc probetur Flet. lib. 6. cap. ult sect 4. But this is only of the first Husband Vid. Bracton de Except cap. 30. sect 7. Littleton lib. 1. cap. 4. sect 35. Dr. Stud. Dial. 1. cap. 7 fol. 14. child shall give me the land otherwise a stranger for term of my life and it is per legem Angliae or per curialitatem Angliae by the law or curtesie of this place favouring no doubt marriage and fruitfulness which if it were elsewhere and common what means 2 Et est appel tenant per le Curtefie Dâ—engleterre parâ—ceo que ceo est use en nul auter Realme forsque tant solement en Engleterre Littletou lib. 1. cap. 4 sect 35. saith Littleton the appropriating title that this is done by that favour hath denomination from England And in some places the husband shall have 3 Dr. Stud. Dial. 1. cap. 10. fol. 21. half the wives inheritance with us he superviveing though he have no issue this also giving a right by the place which is not elsewhere Further the widow relict here shall have the 4
in any ones disturbing them he must needs disturb what hath the common foundation in with-holding them he with-holds what is due by as good Right as any man claimes any thing by he undermines that which is the stay and support of his own house or wealth and does what if the like should be done to him would leave him Nothing because He destroys that preserves and gives to him and All others Every thing If we all rest upon one strength and this be it imbarque in one bottom stand upon one leg and settle upon one and the same bough let any Englishman take heed how he meddle with this common support lest he infirm his own and not be too venturous of the strokes of his Axe for fear of danger to himself by cutting the bough himself in his greatnesse stands upon He may think to pare about craftily and with such prudent caution and an eye to himself weaken the whole that there be strength enough left to support his Own Right But this is neither safe nor honest Not safe to tamper with a common foundation to sprinkle fire in the next thatch that may catch home to bore a hole at the other end of the vessel where a neighbours wealth lyes thinking his own safe Not honest to designe any other mens equally Just and Due rights to be fed and preyed upon to increase ones own heap by taking or with-holding from anothers or to wish the next house pulled down and the inhabitants turned to the Common that one may take as much as he needs of the spoil to multiply or strengthen the Studds of ones own building That which is just and Right shalt thou do is the rule of the holy Law This is neither That thy Brother may live as well as Thou a mercifull and conscionable rule in Israel This takes away Brother Levi's life and leaves him a Beggar with others plenty A Beggar is not uncapable of bounty nor unfurnished with a hand to take what another shall arbitrarily give But we are not so unacquainted with the holy Law of God as not to know what heavy censures are there registred against those whose oppression covetousnesse or with-holding what is due shall make beggars Now Levi's an owner as well as Judah and by the same right as Simeon or Benjamin The same equal universal all-giving all-preserving Rule of Right the Sacred common law gives Him his and others Theirs 'T is the pillar of the temple upon mount Moâ—iah as well as the palace upon mount Sion stablishes the Church-house as well as the farm or Cottage and giving every one his own gives the Tenth part out of the Nine as well as the Nine whereout was taken the tenth Quod restat demonstrandum But first it may not be unprofitable to recapitulate and shew how one and the same thing may drive it self through all the fore-going considerations Take for instance a piece of gold or Anything and see how those truths take place or in this manner have their severall operations Thus. I. In absolute consideration it is no ones no more property of it by God or nature then of the moon and stars 'T is mine thine his every ones no ones II Yet it may be owned or else much of the good of it would be lost and the Courteous intents even of smiling fortune rejected by a sullen neglect of her proffered cheap favors But III. Who shall make this division I may not nor another nor another nor any Man Therefore 't is fit the Law IV. Which varying yet all have agreed in some things and that wherein they all agree is the best rule of partition and possession in the world V. But if severall States have fancies and wayes by themselves not finding what is commonly good to be best for them they May and their severall Owns be what they by their select rules shall have chosen VI. And particularly in England that under severall forms we have agreed to make severall parts of our one Rule the English Law So that then the gold above was 1. No ones Yet 2. Might be some ones 3. Whose not Man but the Law gives it to The Law I say 4. Universall in the world 5. Particular over-ruling in any place 6. With us Ours Or cast an eye upon a piece of ground I. That is certainly no ones by God or Nature for shew me the text or clear reason that says 't is whose II. Do not all mankinde know that severall men may have several rights and interests in the self-same house and land and yet neither destroy the other Is not the interest of the Lord paramount consistent with that of the Mesne and his with that of the Tenant and yet their properties and interest not at all confounded King Charles his answer to the Remonstrance touching HVLL 26. Maii 1642. pag. 5. Yet it may be inclosed God forbid else For are all possessors usurpers or the word of God without meaning that says Enter not into the field of the fatherless sure he may have a field III. Who hath inclosed who might Surely no Man Therefore the Law IV. According to what Effata or oracular determinations thereof In the world by the rules of the world 'T is his who hath most need who first entred who does possess c. V. In a region who hath bought inherited succeeded obtained by descent donation exchange purchase c. according to the forms of that Region VI. In Our nation who by the just pertinent and impartiall sentence and application of those all-giving forms with us it is setled upon which also admits of some further variation For 1. By unquestioned maxime the whole originally was the Kings He was Directus Dominus totius though the Dominium Vtile might be transferred to others No Alodyes left amongst us Independency of all and absolute a Monster All the beams that shine below in the lower world come first from the sun and what is in private stock from the publick store 2. Yet all is not his now pleno jure in full possession and round about every ways for he hath parted with Fees Feefarms Serjeanties Socages c. to intrusted Lords 3. His honours have Mannors as Chips of the great block whereof the Masters think they are to have some subordinate right 4. And those Mannors also their sub-subordinate dependencies of free and copy-holders 5. Either of which may have also their under-tenants for term of years life will c. 6. And these also let out the fruit to one degree lower him that dwels in the house manures the land and immediatly actually uses and possesses what so many others have their distinct superior rights and titles in Thus we see what may be by supra and substitution how many considerations the same thing may passe through each of which gives a new face before it settle any where and how many things we must have consideration of before we can distinctly know what is whose
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
property and Umpires of strife authorized sufficiently so to do and to give me any thing that they do give me and what is so done or given is lawfully and if any thing be so setled upon me it is questionless 1 And of such a Law of Maâ— that is consonant to the Law of God it appeareth who hath Right to lands and goods and who not for whatsoever a man hath by such â—aws of man he hath righteously And whatsoever is had against such laws is unrighteously had Dr. Stud. Dial. cod cap. 4. fol. 8. mine And as by these so generally by writing or custome by statute or canon whatsoever in the true judgment of Courts and common reception of those that are not mistaken is Law That is the same pillar of property assertour of Rights foundation of dominion strength of title and giver maintainer preserver defender assurer and protector of a man in that he so has as an oracle it tels him truly what is his as more then a Prince he gives it him and makes it wrong injury fraud theft usurpation injustice and these things only possible this way if it be taken away from him And for this purpose all these are equally and alike sufficiently operative In every Law positive well made is something of the Law of Reason and of the Law of God Id. fol. 7. There is no choice for where all are the same and have the like cause of power one must needs be as good as another All our law is in some sort derivatively mediately at second hand the voice of God approving all just pactions and humane positive lawes and so his stamp is upon every part and he that resisteth in any resisteth the Ordinance of God Neither have we any other These are the alone limitations banks and boundaries that hedge in and hedge out giving certain admeasurement as the law-word is in some case of properties to so very many as there be among us making us know our home and giving our home which none but they can do in this various world For the Divine Law immediatly is of no force the severing by Tribes or cutting by Joshuah's thread served but once unless for example and so I beleeve much use hath been made of it here more then we are aware of or do readily understand our 2 Aluredus Rex who as all grant made our politicall division ubi cum Guthruno Dacofoedus inierat prudentissimum illud olim à letrone Moysi datsi secutus consilium Angliam primus in Satrapias Centurias Decurias partitus est Satrapiam scyre à â—scyran quod partiri significat Lominavit Centuriam hunðreð Decuriam teoþung sive tienmantale id est Decemvirale Colleg uÌ„ appellavit atque eisdem nominibus vel hodie vocitantur Hence our Tythingmen c. And a little after Decrevit tum poâ—ro Aluredus liberae ut condition is quasque in Centuriam ascriberetur aliquam utque in Decemvirale aliquod conjiceretur Collegium De minoribus negotiis Decuriones ut judicarent ac si qua res esset dissicilior ad Ceuturiam deferrent like the steps of Appeal Exod 18. 210. Deut. 1. 6 17. Disficillimas denique maximi momenti lites Senator praepositus in frequenti illo ex omni Satrapia conventu componerent Gloss ad Lambard Archaion pag. 217. in vocab Centuria Approved by Dr. Cowell in his Interpreter in vocab Hundred And compare farther Ioseph Antiq. l. 3. c. 3. and 2 Chron. 25. 5. Some glimpse hereof appeared to the publishar of Sir H. Spelmans late larger work of Tythes pag. 41. Shires Hundreds Tithings c. Coming I verily beleeve at first from the patern of Judah Levi Simeon and Benjamin by exemplification If any man should attempt it he might be partial if none the thing not done so that supposing a partition needful and some to doe it and no revelation from heaven save in paterne or general rules we can lay hold of no other umpire or Judge like to be fit to do it then that voice of wisedome implying all mens consents which is in the Law the gracious goodness of God assisting the grave wisdom of man yea inabling and authorising it to set bounds hereby to our appetites master our unreasonable proud headstrong desires giving lust a law covetousness a law the hand a law nay the eye a law that it may not so much hereafter as greedily covet what is anothers This is that which bindes the Bear and shackles the wolf lays fetters upon our wilde and forrest desires that else would make us very apt to hearken to temptation to be preying one upon another But this restraines our fury and locks up the Lion in the grate bidding yea forcing all to goe home and be content with their own Sorte tua contentus abi and cast not a fruitless sinful greedy glance upon the inclosure of thy neighbour To give instance in some particulars From this law thus received amongst us it is that I am to succeed in my fathers fee I have right to succeed I may claim my right and I have wrong if I be kept out of my due lawful inheritance For our Law hath divided much land into such tenures upon reasons of profound wisdom not discernable to every comon apprehension that hath willed I should succeed my father if his heir I am his heir nay though a daughter and therefore I must and ought to succeed It is not so in 1 As in the Ottoman Empire where the Timars are much the same with our military Benefices obliging estates for life upon death the State disposes as of our Ecclesiasticall Benefices that falling not by inheritance there may be still choice of fitting men vide Knoll Turk Hist in his Appendix of the Turkish kingdom fol Aaaaaa and that learned and judicious observer Sir Henry Blount has also the same who was lately among them p. 65 66 and before them Mr Selden in his Titles of Honor par 2. c. 12. So 't is also in the Gâ—eat Mogols State lately erected and supported by them vide Pvrch. Pilgrim l 5. Append. ad c. 6. p. 543 544 545. Edit 1614. And Scanderbeg used the same policy also in Epirus Now all this might have been well enough here for the same thing hath continued and is yet well enough in the Ecclesiasticall State nor wrong thought by the ruling Constitution if when the man dye the widow and children are presently strangers Nay even in some nearer parts of Christendom as to secular succession too for the Glosse on the Feudall Law speaking of the old way for life onely Et hoc adhuc obtinet secundum rigorem consuetudinis in feudo Marchis Ducatus Comitatus vel alterius regalu dignitatis ab Imperatore datae quoniam illud foudum finitur câ—m persona acctpientu quia hares in eo non succedit nisi ab Imperatore investiatur Gloss ad vitam ad seud l 1. tit