separate from the Nine But it seems somewhat farther was aimed at and meant or implyed which was the cause why these things were parted and the face of things seems to represent that there was an apprehension and supposition that it was because they were thought to draw near the things of God and were as far as any toward Beyond this world and Therefore they were sorted with a scene accordingly and had their trail and discussion where the things of Religion and Christianity were inquirable onely sc in the Court-Christian Farther by onely which kinde of Supposition the crime can be aggravated of taking them away to that heighth it commonly is and men for purloining be accounted in the number of more then unjust Impious and Sacrilegious For it seems at least unto me that it is not so much the violation of any Command or Law humane or Divine from earth or above heaven if it were possible can denominate and specifie this sin if that Law were as plain as another Divine Command Thou shalt not commit Adultery Thou shalt not Steal But something else and growing in the Nature of the sinne below that must advance the crime so high as to change kinde and become of Wrong and Injustice Impiety and Sacriledge To rob Heaven must offer violation to Heaven and that be more then to offend in transgressing a Law of Heaven For the Morall Commandements above come thence and are in force for us and yet No one says Adultery or Theft are Sacriledges Sins they are but that their full latitude the Divine Precept does not new specifie the nature of the offence These or Any So heretofore when Jus divinum undoubted had bounded every ones own The tribes at least if not the families were parted by sure and immediate Commission from Heaven yet the unjust invasion of any part even then was not counted I believe more then Unjust 1 Qui rapit pecuniam proximi sui iniquitatem operatur qui autem pecuniam vel Res Ecclesiae abstulerit Sacrilegium facit Cau. 17. qu. 4. c. 18. Wrong or Injury when any part of the second Table was broken whereunto yet the seal of Divine Authority had been affixed in every part No more Even so here to raise this aggravation and cause this change by new specification of the nature of this sin from Theft to Sacriledge seems not to me so properly to grow from any authority of any sort of power and command above as here below from 2 Porrò à sacris fures Eorum vel violatores propriè sacrilegi dicti Pet. Gregor Tholos Syntagom lib 33 cap. 14. sect 8. something in the very heart and nature of the offence which makes it 3 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Rom. 2. 22. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Sacred Spoliation not from the Law but from the Thing when either Sacrum de Sacro or Sacrum de non Sacro or non Sacrū de Sacro is taken still hovering Here below and as the 4 Zouch descript Iur. Eccles par 2. sect 8. Pet. Gregor 1. Tholos ubi supra Lawyer speaks through whose spectacles we are like to see clearest in this case And accordingly the 1 Cujacius in parat ad legem Iul. Peculatus Civilian defined it Sacrilegium est furtum Rei aut pecuniae Sacrae ex loco vel religiosae ex religioso and they are Sacrilegious who 2 Tit. eod L. 9. sect 1. Qui publica Sacra compilavêrunt that have medled with somewhat Sacred still relating to the Thing from the Command And the word also imports that way for 3 Apud Ioan. Calvin Lexie Iur. pa. 824. Sublegere is Furari says Servius unde Sacrilegus dicitur qui Sacra legit id est furatur so Another Still dwelling below and conversant about That Is Not Who says as we do not read that Ananias and Sapphira had any order at all to bring or sinned against any Prohibition in revoking and yet with Achan they usually march transgressing in what had come under divine precept no way in the head of the Sacrilegious We have no strict Command for a Chalice or diverse other Utensils of the Church nor the Church it self yet few I believe will allow but transgressions aggravated by being conversant about these Things are worse then others and of 4 Locus facit ut idem vel furtum vel Sacrilegium sit capite luendum Claudianus li. 48. Digest tit 19. L. 16. sect 4. extraordinary Guilt in this world and they are Things I promised not to meddle with any Theological Discourse Nor do I here but as it has dependance of and derivation from yea necessary complication with what was Civil Our such Laws say That Tythes are Given to God which I say does well infer their surreption sacriledge as on the contrary they that say 't is sacriledge to take them give argument they think they belong to God Forasmuch as not so much Gods Command or Divine Right for dueness makes this sin as something in below with the Act it self and indeed Correlatively they infer or remove one another for if a thing be bequeathed to Gods hand as the Law says plainly here it cannot but be sacriledge Sacra legere to take them Holy from him as on the contrary if it be sacriledge to take them They that say so must first imply and suppose they were made over and given to God I have in the prosequution of this point omitted what Epithites or Paraphrasing Descriptions I finde of them given abroad where they are styled Res Dominicae Dominica substantia Patrimonium Christi Dos sponsae Christi Dei census and the like all which must needs advance them high and joyn them near in with better then meer worldly things In usum pietatis concessae as is properly said in the 1 Caus 16. qu 7. ca 1. Canon Or Decimas Deo dari omnino non negligatur quas Deus sibi dari constituit quia timendum est ut quisquis Deo debitum suum abstrahit ne fortè Deus per peccatum suum auferat ei necessaria sua as in the 2 Cited by M. Selden Hist ca. 6. sect 6. Councel of Mentz But these are without the Circle of our Own to which I promised to confine my self Much less may I take scope to look abroad into the profane world for their Oblations even of Tythes and to God to whom they vowed and thought they payed As Agis in Xenophon and Agesilaus in the same who both brought their Tythe to Delphos to their god and offered it him which 3 Agis Delphos profectus est ac decimam Deo obtulit Xenoph. ac rursum Hostium verò ita fruitus agro est ut duobus annis centum talenta ampliùs Deo apud Delphos decimam dedicaret Id vid. Baron ad an Christi 57 sect 74. tom 1. col 607. Baronius having remembred and many more concludes with At verò non immorabor
THE CIVIL RIGHT OF TYTHES WHEREIN Setting aside the Higher Plea of Jus Divinum from the Equity of the Leviticall Law or that of Nature for Sacred Services And the Certain apportioning of Enough by the Vndoubted Canon of the New Testament The Labourers of the Lords Vineyard of the Church of England are estated in their Quota pars of the TENTH or TYTHE per Legem terrae By Civil Sanction or THE LAW of the LAND Which being the foundation of All Civill Right Here must needs render their Spoliation Wrong the Taking or withholding as Injurious as of Any other MANS DVE Humbly represented to the Judicious and Pious Consideration of all Sober and advised Christians who fearing God and hating Covetousness have learned Christ fo far as To give every one His Own and would do no Wrong for Conscience sake By C. E. Mr of Arts. Quicquid enim jure possidetur injuriâ aufertur Quintil. Decimae autem EX DEBITO requiruntur qui eas dare noluerit RES ALIENAS invasit Augustin Serm. 219 de Tempore Render Therefore to All THEIR DUES Rom. 13. 7. Licensed and Allowed LONDON Printed by Tho. Newcomb for JOHN HOLDEN at the Anchor in the New-Exchange 1650. REVERENDISSIMO DOCTISSIMOQUE JACOBO USSERIO ARCHI-PRAESULI ARMACHANO PIETATE ERUDITIONE CAETERISQUE ANIMI VIRTUTIBUS MAXIME CONSPICUO DIATRIBAS HASCE SUAS DE. DECIMARUM APUD ANGLOS JURE NATIONALI ET POLITICO SUMMA OBSERVANTIA D. D. The CONTENTS  AN Introduction declaring the occasion scope and limits of the Whole with way Made to Sundry Propositions of CIVILL RIGHT in generall pa. 1. Chap. 1. Propos 1. That by the Law of Nature all was left at first in Community And this according to the Canon Civill and Our Common Laws not opposing the Law of God p. 9. Chap. 2. Propos 2. That yet Inclosures may be the Scripture approving and furthering p. 27 Chap. 3. Propos 3. That the Fence making out those Inclosures is Everywhere THE LAW p. 31 Chap. 4. Prop. 4. Which being manifold That in the world The Maker of Severals is The Law of Nature or Nations p. 37 Chap. 5. Prop. 5. In any Particular place The Law of That Nation p. 39 Chap. 6. Prop. 6. Individually with Us OUR LAW p. 41 Chap. 7. Here with us Three distinct titles made out for Tythes 1. Of Donation strengthned by Confirmation 2. Possession advantaged by Being Possessed for God 3. Praescription lengthned for through the space of many Praescription-Times with what Donation the first of them is p. 56 Chap. 8. The Donation in Kent of K. Ethelbert and his people and that it is genuine p. 62 Chap. 9. The Donation of K. Aelfwald in Northumberland and of K. Offa in Mercen-land p. 68 Chap. 10. The Donation of K. Aethelwlph of All who was over All. p. 70 Chap. 11. Henceforth needed but Confirmation and Memorials speak accordingly of not Giving but Paying what That is and Tradition superseded as of a Right p. 80 Chap. 12. The particular confirmations of K. Alfred K. Aethelstane and K. Edmond p. 82 Chap. 13. Of K. Edgar with sundry Ecclesiasticall Constitutions p. 84 Chap. 14. Of the Parliaments of Aenham and Habam p. 85 Chap. 15. Of the Danish Knoght in K. Edgars Law repeated p. 87 Chap. 16. Lastly of Edward the Confessour in his composition of the Common Law That work done by Him Whence he had his Materials with Recapitulation and Inforcement of all thus far to the Conquest p. 89 Chap. 17. Behither a partition of the strengths into four sorts 1. The allowance of K. Edwards Laws 2. Church-Constitutions 3. Impressions of the Secular State 4. Particular mens Votes As to the first what William 1. Will. 2. Hen. 1. Stephen of Bloys and K. John passed to make over these Laws into the Charters and that They were K. Edwards p. 99 Chap. 18. In Entrance to the Church remembred 1. That Tythes were under the Conquerour 2. Confirmed by Hen. the 1. 3. Owned in a Parliament at Westminster in 3. of the same Being come in The Patent of the Court-Christian represented with taking Tythes into that Jurisdiction likely by vertue thereof p. 110 Chap. 19. Laws or Canons made by the Church One under Will 1. Another under Wil. 2. Another at Windsore Another at London Two at Westminster Three Decretalls sent hither and to whom What force They had here and vertually the like of Then have yet More from R. Hoveden with Parochial Right settled by Authority from the Laterane Councel Two other Decretals sent in K. Johns time also of force But the chief strength is in the Provincials collected by W. Lindwood in Quoniam propter Quoniam audivimus Sancta Ecclesia Quia quidam c. p. 120 Chap. 20. The Canon of Sylva Coedua Strength of Church-Power to create Right where not restrained insinuated by the Statute of 45 Edw. 3. 3. against the Excess of that Power The Proceedings in the Court-Christian to Recover these Rights What was intended by the Stat. of 25 Hen. 8. 19. about Reforming the Canons What was done The Canons to this purpose Given Till these be authorised All Former in force as by the Proviso of that Statute p. 137 Chap. 21. Among Seculars the firm Rooting Tythes have in the Great Charter The solemn Ratification and due Great esteem thereof with address by Apostrophe to those are against them that they keep but fast here and This will settle Tythes Their Redargution else from their own Principles and a Christian admonition to Constant Equall and Just dealing p. 148 Chap. 22. The Statutes of Regia Prohibitio under Hen. 3. Of Circumspectè agatis and Consultations under Edw. 1. Articuli Cleri under Edw. 2. Four more under Edw. 3. Divers under R. 2. and Hen. 4. All but the Exempted now paid and Who were Exempted p. 162 Chap. 23. Vnder Hen. S. Wary and just proceedings as to this matter The preservation of Tythes when what next was Cast away The Need of Temporals for Divine Service Two Statutes by Consequent establishing them sc 24 Hen. 8. chap. 12. 25 Hen. 8. chap. 19. and Two more purposely sc 27 Hen. 8. chap. 20. 32 Hen. 8. chap. 7. p. 177 Chap. 24. The last and most vigorous under Edw. 6. p. 192 Chap. 25. An Examination of the Lo. Cooks assertion occasioned by his Comments thereon That Tythes were taken into Church-Cognizance by some old Statutes as about Edw. 1. time And that Not from nine alledged probabilities p. 198 Chap. 26. By occasion of the mention of them in that Statute The More ancient dueness of Personal Tythes laid forth With the Laws in force for them before the Statute p. 205 Chap. 27. The grant of the Petition of Right a Concession of All. That None are Burdensome because laid on by Law Application to those that Plead this Petition that if they understand it It Cannot be Against but Must be For them because they were at the time of that grant A Right p.
Ecclesiasticall Being thus then confined to mine own Circle wherin I mean to keep my self religiously without trangressing and like there to behold little but of Right and Civil Right and the Dueness of this maintenance of Religion intended Thus to be asserted thereby It may not be amisse it cannot but be very expedient to premise sundry things of Right or Rights in generall the nature ground rise strength and originall first growth of Them all with this intent and purpose That if we can finde the reason of All we may the better judge of These If we doe finde these to have the same strength and bottome to rest on that all others have to wit humane paction and the powerfull word of the severing all-giving Law which alone incloses all from the common in the same with others we may conclude either these have enough or none have any for the same Cause produces the same effect alwayes wheresoever and if here be the same ground of right there must be the same right also why should it not Now to the top of that I thus propose to my selfe to aym at I shall ascend as by so many steps by these six following Propositions beginning at the bottom where all was left at first as in a wildernesse of Community and say as followeth OF Civill Right CHAP. I. Proposition I. BY the Law of Nature all things are 1 Nec hâ—â— quidem secundum Naturam saith S Ambrose speaking of the Philosophers opinion of the form of Iustice sc to use what is common as common private as private Natura enim omnia omnibus in commune profudit Sic enim Deus generari jussit omnia ut pastus omnibus communis esset terra foret omnium quaedam commâ—â—is possessie Natura igitur jus commune generavit usurpatio jus fecit privatum de Offic. lib. 1. cap. 28. tom 4. page â—1 And upon this ground it seemes Aquinas thought it not unlawfull to re-enter the inclosure in case of a a poore mans extream necessity there having been a kinde of tacite condition at the beginning that the fences should hold but till there were a necessity of in part removing them So by that occasion All things return again to All men 22 Quaest 66 Art 7. Vtrùm liceat furari propter necessitatem And much to the same purpose the more solide Hugâ— Grot. de jure Belli Pacis lib. 2. cap. 5. Sect. 6. And Bellarmine Quò adusum necessarium sunt omnia communia positivè ità ut per nullum aliud jus possit quicunque homo prohibâ—ri quò minùs vivaâ— de rebus à Deo creatu Atque hinc est quod in articulo necessitatis non dicitur neque est fur qui ex quocunque loco accipit unde vivat de Bonis Operibus in part lib. 3. cap. 11. Respons ult common No propriety ascertained or cut out to any but all left as made in a common heap for the common use of all men As beasts come to the water and drink but ask no leave or as 2 Vno in loco non diu commorantur rati gravem esse infeliciâ—atem diu in eodem loco haerere Ortel Geog. Tab 47. vide Magir. Geogr. p. 223. Heylin Microcosm p. 659. the Hoords of Tartary which depasture and stay here and there so long as their safety or entertainment like them or lastly as some simple Indians who not knowing the craft of appropriations think themselves rich enough in that every man hath every thing So man in puris naturalibus looking 3 Natura dedit â—nicuique jus in omnia h. c. in statu merè naturali sive anteqâ—am homines ullu pactis sese invicem obstrinxissent unicuique licebat facere quaecunque in quoscâ—nque licebat possidere uti frui omnibus qâ—ae volebat poterat T. Hobb de Cive c 1. Sect 10 beyond coalition into societies and notwithstanding any divine law which approves indeed à posteriori partitions made out and strengthens them at first and as God and Nature left him is Master of Nothing but was to take what he had need of and leave the rest a very Coenobite and Another had as much right as He and He no more right then Another but He with them and they with Him were together to enjoy the Blessings of God in Common Non Domus ulla fores habuit non fixus in agris Qui regeret certis finibus arva lapis as the 1 Tib. El. 1. 3. Poet spake with opennesse and community enough Nè signare quidem aut partiri limite campum Fas erat in medium quaerebant c. so 2 Virg. Georg. 2 which yet Lactantius interprets onely of an open Bounty having no more of strict import then that of another Flumina jam lactâ—s jam flumina nectâ—ris ibant l. 5. de Iustitia cap 5. pag â—72 another and the grave 3 In Octar Act 2. Seneca Pervium cunctis iter Communis usus omnium rerum fuit And again and still smiling upon the Free and 4 Erant in Saturnâ— avo omnia communia indivisa omnibus veluti unum cunctu patrimonium â—stet Iustin 43. unde in Saturnalibus Bonorum communie Golden Age Nullus in Campo sacer Divisit agros arbiter populis lapis 5 Ovid Met. lib. 1. But by after acts came in Mine and Thine Communémque priùs ceu lumina Solis Aurae Cautus humum longo signavit limite Mensor as the 6 Sunt autem privata nulla Naturâ sed aut veâ—â—â—i â—câ—upatione ut qui nondum in vacua vâ—nâ—rum aut victoriâ ut qui bello potiti sunt aut lâ—gâ— conditionâ— pactionâ— sorte ex que sit ut agâ—r Arpinas Arpinatum Tusculanus Tuscullanorum similisque est privatarum possessionum descriptio Cicero de Offic. lib. 1. Orator tells us accordingly That nothing is by Nature inclosed to such or such a one in severall but either by first seisure as those that entred upon what was no ones or by Conquest as what the Souldier got or by Law Agreement Com-promise Lot c. and so is such a Field such a Mans or such a Farailies 7 Apologet. Sect. 39. pag. 35. Tertullian observed of his time Omnia apud nos indiscreta sunt praeter uxeres Every one had his wife to himself but nothing else It were well if our charity or goodnesse would enable or permit us approach to so great happinesse and of the new fresh inspired Christians 't is written No one said that Any of the things he possessed was his owne but they had all things Common Acts 4. 34. and yet wanted no one any thing for as many as had Lands or Possessions sold and brought to the Apostles in bank and distribution was made to each in charity or equity as he needed No more then this doe God or Nature intitle any to by name singularly Let great Possessors look to themselvs and make much
of after inducements which alone have lifted up their Lordships above the level and preserv them endevor to keep them whole and as well the whole as any part For if the Bank be cut anywhere the Floud may finde way thereby to run over all if there be but a beginning to remove the bounds and lay open the fences that have severed Dominions anywhere what is begun may proceed unluckily and what has been done by any Men may hap to be revoked as concerning themselves and then poor Codrus is as rich as Craesus and A. B. as great as any of the greatest But to proceed Say I these things as a man only 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 private and fallible Says not the Law the same also Ask either of the three sister Queens the Canon Civill and our Common Laws have shared in Government some way or other of most part of the Christian world and doe not they speak home or homeward this way The Canon first a 2 See Sir Thâ—mas Ridleys view of the Lawes par 1. cap. 5. Sect. 1. pa. 73. wise piece and a competent knowledge whereof doth with us half create a Doctorship And set aside where it superstitiously directs about things not needfull or lightly takes in the Errours of dark times or politikely advances the Pope to an 3 Vid. Caus 9. qu. 3. Ca. 117. Totius enim orbis Papa tenet principatum Gloss partibus ad Decret lib. 3 tit 16. Nec est qui audeat dicere Dâ—mine â—ur ita facis gloss continetur ad Extrav Io. tit 4. cap. 2. universall indirect 4 Vid. Extravag de major obed cap. 2. in fin gloss porrò subesse ibid. perhaps direct Dominion or blasphemously tantùm non advances him to an immense soveraignty Dominus Deus noster Papa is said to be in the extravagants In other serious and sober pieces of much gravity and great use and thought by many to serve very commendably toward the end it pretends to aym at the well regulating and ordering divers emergent cases that may arise and become doubtfull in the Catholike Church See then there not far from the beginning where we have that * Differt autem Ius naturale à â—nsuetudine Constitutione Nam Iure naturali Omnia sunt communia omnibus quod non solum inter eos sèrvatum creditur de quibus legitur multitudinis autem Credentium erat cor unum anima una c. verum etiam praecedente tempore â Philosophu tradituÌ„ invenitur Vnde apud Platonem illa civitas iustissimè ordinata traditur in qua quisque proprios nes it affectus Iure verò consuetudinis vel constitutionis hoc meum est illud alterius Vnde Aug. Tract 6. in Ioan. Quo jure defendis villas Ecclesiae Dec. 1. dist 8. The place is in Aug. tom 9. p. 25. The Law naturall differeth from Custome and super-induced constitution for by nature All things are common to All which was not only observed of those Act. 4. but formerly among the Philosophers Whence Plato counts that City best governed where none covets property to himselfe But by the Law of usage or agreement This is mine That anothers And Gratian proves it by a place of Augustine Jure Divino omnia sunt communia omnibus Jure constitutionis Hoc meum illud alterius is the title of that proofe who speaking to those that thought themselves wronged by deprivation for Heresy He askes By what right they had their livings of God or Man The one is in Scripture the other in royall Lawes Now whence saith he are your Possessions but by the last for by the 1 Ex hoc videtur quod tantum j ure humane aliqua possideantur â—r non divine With answer to an objection Vid. Gloss num Iure Divino 16. first The Earth is the Lords and the fulnesse thereof He made rich and poore alike and preserves them alike But by mans Law we say This is my Farme this is my House this is my 2 Manebat antequam vinum inveniretur omnibus inconcussa libertas Nemo sciebat a consorte natura suae obsequia servituris exigere Non esset hodie servitus si ebrietas non fuisset As if a drunken mischance were the parent of this lasting inconvenience Dist. 35. Sect. 14. c. Sexto die Sect. Manebat Servant And why are humane Laws the Emperours Because by them God distributes their own to the people Where the glosse is full That Possessions are only founded in humane Lawes And the Text againe Take away Imperiall Constitutions and who can say This is my House this is my Slave this is my Living c and to the Emperours Laws forbidding Possession to Non-conformists some answering what have we to do with Emperours Nay and what have you to do with Possessions Replyes that Father Quickly for Possessions are by These whom if yee renounce your possessions are therein involved This is full somewhat dark is that before of 3 Dist. 1. c. Ius naturale Communis omnium possessio And before that the 4 Gloss Al. ad c. 1. â—maes Leges glosse makes a doubt upon the speech of invading anothers Nonne Jure naturali omnia sunt Communia How this Is any thing anothers And answers True as things are Now. Whereupon the note on the glosse Omnia sunt 5 And though Dominion be by Nature at large that all is mans yet the distinction or partition of Dominions that such or such things should belong to such or such a man is from use or introduced civil compacts Gloss pâ—rrò subâ—sse Extrav 1. de Maior Obed. c. 1. in fin communia Jure Naturali as plaine as can be This may be enough for one piece pretending it self to be a necessary supplementall additament to the Law Christian or drawing out the general rules thereof in particular expedients as severall cases require for governing the Christian world Next what sayes Justinian He chiefly insists on one branch indeed the matter of superinduced servitude yet so as the length of his reason duely extended will serve also well enough to hem in all other Dominion In each part of his Compositions he hath somewhat tending this way In his Institutions first where servitude he 6 Lib. 1. tit 3. sect 2. vide etiam Arist Polit lib 1. cp 3. sayes is a Constitution of the Law of Nations whereby against nature men are subject to the commands of others the very Syllables of 7 F. de statu hominum L. libertas And Quod attinet ad jus civile servi pro nullis habentur non tamen jure naturali quia quod ad juâ— naturale attinet omnes homines aequales sunt De diversis reg Iur. aut l. 32 Florentinus in the Pandects before contra Naturam id est contra Jus naturale cùm eo jure omnes homines liberi sunt sayes the Glosser there for by Nature all are free from
divers Autorities Nor are they impertinent for in the next 8 Quae res manumissio à jure gentium originem sumpsit utpotè cum jure naturali omnes homines liberi nascerentur nec esset nota manumissio cùm servitus esset incognita sed postquam jure gentium servitus invasit secutum est beneficium Manumissionis Et cum uno communi nomine omnes homines appellarentur jure gentium tria hominum genera esse coeperunt Liberi his contrarium Servi tertium genus Libertini qui desierunt esse Servi Instit lib. eodem tit 5. title but one speaking of Manumissing This freeing from power saith he derived it self onely from the Law of Nations or agreement for by the Law of Nature all men were born free neither was releasing known sith there was no such thing as Bondage But after that by the Law of Nations this Bondage was brought in then came there also along therewith possibility of Freeing So now of one sort of men at first there were thus made three Servants Born and made free-men the very Syllables 1 F. de Iustitia Iurâ— L Manumissiones of Vlpian in the Pandects again And tit 8. de his qui sui vel alieni juris sunt Servants are in the power of their Masters which 2 Instit 1. tit 8. Sect. 1. power is of the Law of Nations And 3 Instit eod tit â— Sect. 3. vid. F. de condict indeb L. Si id quod before Captivity and Slavery are contrary to the Law of Nature for by this Law all were free from the beginning And this continued also to the Novels For in that supplementall addition to all former provisions of Code Pandects and Institutions The Law of Legitimation there tells us that 4 Natura servum liberum non discrevit sed liberam hominis fecit prolem and a little after Neque enim a principio quando natura sola fanciebat hominis antequam scriptae provenirent leges fuit quaedam differentia naturalis atque legitimi sed antiquis parentibus antiqui filii mox ut procedebant fiebant legitimi Et sicut in liberis natura quidem liberos fecit omnes Bella vero servitutem adinvenerunt sic etiam hinc natura quidem legitimas produxit soboles attamen ad concupiscentìam diversio naturalis eâ—s im miscuit Novell 74. cap. 1. Nature made all children free at first it was war brought in Bondage Even so by Birth aâ—l were sons and one as another at first after-provisions made distinctions And endeavouring soon after to collect and binde together all former resolutions on this great subject to be represented in our view he both 5 Natura siquidâ— ab initio dum fiâ—â—orum procreationes sanciret scripsis nondum positis legibus omnes similiter quidem liberos similiter autem produxit ingenuos Primo namque parentibus primi filii similiter autem legitimi à natura â—iebant bella vero lites atque libidines con cupiscentiae causam deposuerunt ad aliud schema serv tutem namque invenit bellum Naturales autem castitatis casus c. Novell 89. cap. 1. repeats this Assertion 6 lb. cap. 9. before Liceat igitur sicut praediximus patri si legitimam non habeat sobolem filios restituere naturae antiquae ingenuitati Novel 74. cap 1. offerre Imperatori precem hoc ipsum dicentem quia vult Naturales suos filios restituere naturae antiquae ingenuitati legitimorum juri cap. 2. and Phrases to Liberty to be a restoring to Nature Now that what is thus dispersed of freedom and servitude onely may be enlarged by like reason to all Community and restraint we are beholding to the Glosse on 7 Bella captivitates serviâ—utes postliminia manumissiones ut sacrosancti fint hostium legati Regna Dominia Obligationes Acceptilationes Constitutiones sunt juris Gentium Gloss 13. Bella. Instit 1. tit 2. which stretches out one place as all other may thus Wars and servitude are contrary to the Law of Nature said the text and what is meant by Wars Manumission Restitution Rule Dominion and such other things sayes Cujacius on the place And upon the other of tit 3. § 2. Slavery is by the Law of Nations 8 Gloss Constitutio juris Gentium a. therefore he inferrs Domination is from the same and therefore say I again not from Nature Wherein the text also seems to bear him out and me for thus 9 Ex hoc jure gentium introducta Bella discretae Gentes Regna condita Dominia distincta agris termini positi aedificia collata commercium emptiones venditiones locationes conductiones obligationes institutâ— exceptis quibusdam quae à jure civili introductae sunt F. de Iustitia Iure L. 5 Nam Dominia rerum sunt de Iure Gentium and that Text alledged for it Glos generali Iuri ad Cod. 1. tit 22. l. Omnes cujuscuâ—que Hermogenian in the Pandects By this Law of Nations whereby Manumissions were possible as before were Wars brought in also Provinces distinguished Kingdoms erected Dominions setled Fields enclosed and many such superinducements which Nature in her Dictates never acquainted with the good wisedom of Man having found them out for quiet of societies and the great goodness of God and religion approving these humane inventions Yet farther and from the same Volumns it is observable that of that first universall freedom some foot-steps are by the same Emperour allowed to remaine yet not cleane wiped out and of that naturall liberty of things never yet brought within the bondage of any accessary restraint some evident both signs and instances For 1 Instit 2 de rerum divisione in Princ. F. de divisione rerum l. 2 3 4 5. Quaedam naturali jure sunt communia omnium yet in despite of any offered inclosure quaedam publica id est popiclica sc omnium populorum as the glosse quadam universitatis quaedam nullius quaedam singulorum so and no more And hee gives instance in Ayr water Sea Shore who has endeavored to 2 Vnderstand in the Empire for some kinde of appropriations of some of them has been with us made to the King as shall be said inclose and appropriate these or not given to every man to make use of their bounty as his occasions should bring him to need them The River to row the Haven to entertaine the Bank to Land Theaters Temples c. Hee might have added also High-wayes which have never yet cast off their opennesse of former freedom or come within the bonds of my private restraints but in all Grants been still reserved and retaine to themselves yet what they were at first and are and ought to be viae publicae without any allowed restaint and for every mans use that can use them Crafty appropriations have or can no more hedge in these and some other gifts
of God and Nature or God by nature then the rich can impale to their own use the Sun-beames or cause the same light not to shine to their poore Neighbours comfort as well as their own or the inriching raine to fall upon Their own Land and leave the poore mans barren Thus the current of Justinians works That wise Law that kept the World in awe durst never never did declare against all Community Plainely it speaks things left at first Common Servitude is by after-inducement Property as Servitude and no such universall restraint yet but some things remaine as free as the Wood for the Bird to come and sing on what branch she pleases or as the Sun-beames for which the poore man payes no rent or dreads no quarter day or like the Fountaine to the wearyed Passenger hee may drink what he will and leave the rest and no one questions interupts or molests him Come we now nearer home and what said here our Doctor Bracton he was a great Civilian and some say not only so but such a Doctor of the Civill Law to bring home as he has and mixe many of the Effata of that more Civill Rule with our barbarous Customes 'T is true he makes often use of the Code and Pandects and that which is more many of his Rules are borrowed verbatim from them and so does his Follower and in most transcriber Fleta also though I wil not enter much dispute of their Doctorships They are to us a kinde of 1 Scriptores hujusmodi apud nos as these Thornton Britton c. inter eos quorum doctrina pro ornamentis tantum orationis in disputationibus juris nostri forensibus scholasticisque esse possiut nec authoritatem in se ferant vulgò censeri solent Ãdque non sine authoribus magnis Quod meâ sententiâ tantorum virorum pace dictum fit non citra errorem ex incogitantia ingentem ortum propagatumque Tametsi enim ob vetustatem ac intervenientes quae insequutae sunt juris mutationes admodum multiplices authoritatem in quamplurimis jam non praestent ejusmodi quae decisionibus Iudiciis Consultationibusve per se solùm sufficiat innumera nihilominùs continent quae aut etiamnum manent integra nec omninò abrogata ut in materie maximè feudali criminali c aut quae mores majorum legesque avitas mutationibus ejusmodi priores copiofius ostendunt Atque ita certètam authoritatem è qua Iuris interpretatio pendeat eos habere manifestò in disputationibus forensibus scholasticisque est agnoscendum quam Ornamento esse Selden Dissect ad Flet cap 1. Sect. 3. p. 454. Oracles and borrowing their Inspirations from where before wherein they were at least well studyed if not graduated wee are not to wonder if they wrote much the hand of that Copy according to which we see they did practice to write The former first in very perfect imitation instances chiefly as Justinian did in superinduced servitude which 2 De Rerum divisione lib. 1. cap. 6. Sect. 3. he sayes is by the Law of Nations whereby against Nature one man is subject to another And the like assertion he lets fall by the way not long 3 Lib. eod cap. 9. sect 3. after potestas Dominorum in servos à Jure gentium est with the same enlargement to all restraints as the Civilian taught 4 Lib. eod cap. 12 Sect. 4 5. Add whereto what a little before Manumissiones anima juris gentium sunt Est autem Manumissio datio libertatis i e detectio secundum quosdam quia libertas quae est de jure naturali per jus gentium auferri non potuit licet per jus gentium fuerit obsuscata Iura enim naturalia sunt immutabilia Item ex hoc jure introducta sunt Bella cum ad tuitionem patriae inducuntur à principe uel propulsantur violentiae Ex hoc etiam jure gentium discretae i e. separatae vel divisae sunt gentes Regna condita dominia distincta Et non sunt dominia de novo inventa de jure gentium sed ab antiquo quia in veteri Testamento aliquid erat meum aliquid tuum unde tunc erat prohibitum ne furtum fieret etiam tunc praeceptum suit ne quis mercenarii sui retineret mercedem Ex hoc etiam Iure gentium agris sunt termini positi aedificia sunt coliata vicinata Et generaliter jus gentium se habet adomnes contractus ad alia plura 16 cap. 5. sect ult Much to the mind and words of what was before from Rome Some things are common some publike some Corporations some no ones and some every ones And as by Right remaining yet Common and according to Nature he instances in Water Ayre Sea and Shore which retaine their primitive universall freedome and were never yet in bonds to any Fleta treads for the most part his steps and it may not be pleasing to lead the same dance over and over or to represent as a new Show that which hath in it nothing of variety and novelty wherefore I only 1 Vid. lib. 1. cap. 3. Sect. 1. ca. 5. Sect 3. 6. referre to him And so for Dr Cowell late of Cambride who professing to mould our Laws according to the patern of the Imperiall Institutiones Juris Anglicani ad methodum seriem Institutionum imperialium compositae digestae is the Title of his Book In the second third and fifth Titles of his first Book and first of the second has the same parallel things and near words shewing indeed that the Laws were parallels and which was his Plot in these things both alike I may not have omitted the Student to his Doctor the Authour is both Grave and serious and were he in transmittatable Language might gaine with time and more Authority after some Centuries then he has in present Besides other places He delivers himselfe in his 2 Dial. 2. cap. 3. fol. 64. Book thus It is to be knowne for satisfying the doubt how the property of a mans goods may be altered as in an Out-lawry without his consent that The property of Goods he might have said of Lands the reason is the same I beleeve he meant both be not given to the Owner by the Law of Reason nor by the Law of God but by the Law of man and is suffered by the Law of Reason and the Law of God so to be For at the beginning All goods were in Common but after they were brought by the Law of man into certaine Property so that every man may know his own then were conditions assigned and so he proceeds to resolve his doubt by that one condition here was then that if a man were Out-lawed he had nothing as a man not to be trusted or an enemy c. Many other such plaine Assertions are partly in This and These and partly in other our next
or Scripture will conclude their coequality with him Had you consulted with the Hebrew word used in the Text you would have been a stranger to so strange an inference For the words translated My Fellow might be rendred My Citizen my Neighbour my Second Hebraea vox proximum aut amicum sonat qui stat è regione alterius Et praesto est à omnia amici officia comparatus quamobrem idem in sinu patris esse ad dexteram illius sedere dicitur intercedens pro nobis Trem. in Locum my Lievtenant my Vicar my Friend So the Septuagint 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the man my Citizen or Neighbour Tremelius thus Virum proximum meum The man my Second my Lievetenant my Neighbour my Vicar or the like Tremellius and Iunius in their Marginal Notes speak thus The Hebrew word say they signifies one that is very near or a friend who stands over against another and is ready at hand for all friendly offices wherefore the same to wit Jesus Christ is said to be in the bosome of the Father and to sit at his right hand interceding for us And so the words acquaint us with these two things especially 1. That Christ is the Principall object of Gods dearest affection The man my fellow quem maxime amo saith Groti us whom I most of all love CHAP. VI. Proposition 6. HHere in England that which gives me right or title to any thing is Lex hujus Terrae or Our Law This is the Basis of all English property and grand Charter by which every man holds his estate with us The Fortune-teller yea the Fortune-giver and Maker and Creatour of all Right and Title among us which lets in first light of possibility of fraud injustice or any wrong and that alone gives place to the 8th Commandement ever to take any place Thou shalt not steal for where is no Law is no transgression if we had no right we could have no wrong and in bare taking how could I be accused to steal that which is no mans but is now by law indeed anothers By Law here I understand that which under sundry beads has been of such force with us Doctor Stud. As the Law of Scripture first which is not here a Law onely Dial. 1. cap 6. but a Law of Laws whatsoever is here done against it is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as against the Law of the Land and farther if any Law be made against it that Law is a grievance and an offence and thereby both unlawful to obey it and the order it self null as more then revocable revoked as if it were made against the great Charter Upon which ground also Dismes are here due saies 1 id ibid. fol. 11 a very good Lawyer Then have we the Law of 2 Rep 7. Calvins Case Doct. Student Dial. 1. cap. 5. Reason or Nature or Nations taken in likewise into our Code or Canon so that whatsoever is done against the same generally received is against Our Law as was said of the imbraced Scriptures to us Christians and 1 Because it is written in the heart it is never changeable by no diversity of Time or Place and therefore against this law Prescription Statute or Custome may not prevaile and if any be brought against it they be not Prescriptions Statutes nor Customes but things void and against lustice id cap. 2. fol. 4. as a crocked Rule made by a streight to make right lines by As in the Empire Omnes cujuscunque majoris vel minoris administration is universae nostrae Reipublicae Iudices monemus ut nulluÌ„ rescriptum nullam pragmaticaÌ„ Sanctionem nullam sacram Annotationem quae generali Iuri vel utilitati publicae adversa esse videatur in disceptationem cujuslibet lâ—tigii patiantur proferri sed generales sacras constitutiones modis omnibus non dubitent observandas Dat. Kal. Iul. Constantinopol So the Emperour Anaestasius Cod. lib. 1. tit 22. l. ult this likewise as that a Rule of Laws Also that law of Reason spun out into certain as it were derivative branches which are so many sorts of that wee call positive Law as 2 General whereof the Student to the Doctor Dial. 1. cap. 7. as the third ground of the Law of England or particular whereof cap. 10 16. Bract. lib. 1. Sect. 2. Law Customary 3 Whereof the Body given by Bracton Fleta c from times before Law Common 4 Vide Doct. Stud. Dial. eod cap. 11. Law Statute 5 Cook Instit 1 fol. 11. b. Law Maritime or that of Oleron published by our Rich. 1. there but of English mint though there cast and named the English Sea Law it is made at Oleron The 6 Cook ibid Instit 4. cap. 22. pag. 134 c. of the Court of Admiralty proceeding according to the Civil Law Civil Law also as in our Courts of Admiralty and Marshalsey and generally supplying 7 Atqui interea è locis superiùs ex Iure Caesareo ab Iurisconsultis Nostratibus Fletâ utpote aucore Bractonio Thorntonio celeberrimis ac Iudiclis cum primariis quantum ad posteriores binos attiner Praefectis ita allatis expressÃmque indicatis atque in rerum quas tractârunt probationem argumenta sic adhibitis idque velut authoritatem aut saltem rationem cogentem prae se ferentibus manifestum fit Vsum qualemcunque neque cum adeò obscurum apud Majores nostros â—o in seculo juris ejusdem aâ—que illius librorum in discussionibus nostris etiam ex jure Anglicano definiendis invaluisse Not with intent to submit this Kingdome to Caesar or his Laws or relinquish our own sed ut tum ubid effct nostri Iuris praescriptum expressius ad rationem etiam Iuris Caesarei ratione suffultam recurreretur tum ubi Ius ntrumque consonum etiam Caesarei quasi firmarecur explicareturve res verbis Seld. ad Flet dissert cap. 3. Sect. 4. pag 472. the defects and eeking out the imperfections thereof by its larger spread body eztending thereby to many particular either determinations or reservations helpfull where the brevity of our shorter Rules and Maximes of Prudence could not reach Lastly the several pieces of allowed 8 Cook on Littleton Sect. 648. fol. 344. of the Iurisdiction of Courts cap. 74 p. 321. Canon fitly called the Kings Ecclesiastical Laws Doctor Student Dial. 1. cap. 6. fol. 11. which though ministred by Church-men Artic. Cleri 9 Edw. 2. is or was one of the Kings arms of Justice Cricumspectè agaâ—is 13. Edw. 1. whereby he reached out his helping power Stat. of 24. Hen. 8. 12. and exercised some part of his Ecclesiastical Jurisdiction to some persons Sr Th. Smith de Repub. Anglican lib. 3 cap. ult and in those Cases it concerned him to have both ended and thus ended and accordingly was All these are so many Oracles of Justice Pillars of Right Distributioners of
gentes aliud constituerunt Cum autem lex civilis aliud constituit a eam observari debere jus ipsum naturae dictat Grot. de jur Bell. 2 2. sect 5. the Kings and so generally we are ruled by our selves Our own law is the measure of our own right we have that and that alone but that firm and it is injury and that injury alone to dispossess us of that our own nationall home-binding Laws have setled as they have That is Here nothing else right or wrong Some seem to go farther in requiring to property in the Common-wealth a right in Religion to have a right in Christ or none in the Creature for whose sakes is that question cut out An dominium temporale fundetur in gratia or as others An gratia sit fundamentum dominii temporalis but besides that the discussion hereof moves properly in another sphere I beleeve if they be understood aright their desires may not be altogether irregular for of that Civill Right we speak of they require and seem to have enough in Civill determinations To purifie so the conscience in the sight of God they may say perhaps we must have more our nature amended by Christ sanctified and by application of him himself owned and so only to the Pure are all things Thus pure But to peace and order and right among men here the determinations of the lower scene are enough and he breaks humane laws that couzens or steals what is but so setled by them and by consequent Gods because Mans. It were hard to say that as on the one side a sanctified man should finde no more sweet in Gods blessings of the same kinde then a heathen or a publican so on the other that any should be so vain to think that a wicked man is thereby an out-law having no faster seat in his possessions then that a godly neighbor may turn him our of doors to morrow and by vertue of his share in Christ the heir of all things create himself a principality in present of all the wicked mens wealth in the world The Indian is sure master of his own gold and spices the King of Spain of his Indies and a Jew or Turk of their severall Owns nor can the most deboist Ruffian amongst us worse in some regard then Turk Spaniard or Indian but be so true and rightfull a Master of his own wealth that his most hellish wickedness cannot turn him out of it in this world unless his prodigality do that he should be henceforth a thief of his own wine or cates or so meer an usurper that any of Gods servants may usurp from him indeed and rob him as the Israelites did the Egyptians in equity and conscience Far be this from every one has truly learned Christ so to think or do 'T is fit every swine have his own stye every dog be let alone in own kennell The grace of Christ teaches us to use our own not censure others to be thankfull for what we have not covet what is other mens There were that it hath been laid to their charge they have endevoured to subvert those laws to bring in the Civill and do some such things as Stephen was accused to say Jesus of Nazareth meant To change the Ordinances that Moses gave them Acts 6. 14. vid. Cap. 21. 21. So these what K. Alured St Edward King Edward Henry Elizabeth James and other Law-founders have with much bounty of wisdome distributed out unto us But if this would have been such a transcendent attempt both of folly and tyranny that it would have ushered in more injury then ever the Conqueror could who changed the Governor but could not the Laws kept and was forced to keep that body intire only he set himself a new head at top and would have rendred them questionless guilty of that Crimen laesae Majestatis or highest offence whereof Glanvill speaks in the very beginning of his Book De nece vel seditione domini Regis vel Regni leaving little else for a foraign Enemy to do sith the taking off these would consequentially have taken away all things For pretend they to amend hereby what they would bring in the twelve Tables the politicall part of the wise Alcoran the Partidaes of Spain Arrests of France or whole voluminous bulk of Justinian and Accursius there could have followed nothing else with us but unsetledness of all mens estates which are the gift of our Law alone and by that alone guarded and preserved disorder ignorance multiplicity uncertainty and to those that had any thing the worst undoing even by law and that this should settle them besides their own all they are now owners of For new instruments must have a new work a new-fashioned rule draw a new-formed line a new Law have a new Righteousnesse and so our Fees Socages Burgages Claims Entries c. would all have been put out of their old course into another that new and perhaps not consistent with our Government perhaps not with our selves and in a word a New right and what were then become of the old and All as many as had any thing by it Some would have stuck to this others to that another parcell to neither a fourth only to the right that we had and is best because fittest and used loath to stay in Babylon when they saw hopes of Sion while in the mean time all vary and Sion is made no better then Babylon No whole part can tell whither to take and unity being gone thereby a new sad way paved in division to war poverty ruine desolation and by Anarchy extreme disorder and very confusion Let them bear their rebuke whosoever they be that should have attempted things so monstrously exorbitant and full of sin as well as injustice All 't is like would have been hereby at stake if not All lost for our Law gives and preserves us All and the taking away this or changing must needs then have taken away or indangered All According to what a Lord Chief Justice said not long since The Law is the most common birth-right that the Subject hath for the safeguard and defence not only of Goods Lands and Revenue but of Wife and Children body fame and life Cook Instit 1. and Bracton before Justitiu dat unicuique quod suum est lib. 1. cap. 4. All is the bequest of Justice and the parent and guide thereof is the Law And thus my Porch or preparatory Preface seems well nigh finished raised upon six Pillars as I take it of firmnesse enough touching the nature ground rise growth strength and perfection of ours and all Civill Rights There may have been some mistake in tempering the morter disordering the materials or blemishing the whole by unskilfull handling but the truths howsoever seem solid and their use enough chiefly in this relating for which they were given to all follows That if this be the nature of Civill Right and All mens best and tythes have This
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
continually loth to part with what they love which if it should be Josh 7. 9. O Jesu As Joshuah fometime threw up complaint to heaven upon a pang of zeal in like danger What shall be then done to thy Great Name But ere this be more stones must be stirred 't is like then we are aware of or are yet thought on for motion intwisted estates doe not use to decay single nor that sink alone of it self that settles on the same floor or bottom with others The strength of property it self must grow weak ere these dues can be shaken and the owner of the nine parts be left little enough by the Same reason unlesse by arbitrary disposition because 't is fit he should have it before This Tenth setled with them and by equal strength of right can be taken away Think of ransacking the Tenth rafter out of the roof or the Tenth stone out of the foundation and then compare and Judg. But think withall that rafter that stone was there placed in Swithunes dayes CHAP. XI WE have done with Donation A thing can be given but once and this hath been here all over now next as annexed thereto or a part thereof should follow Tradition without which the 1 Item non valet Donatio nisi subsequatur Tradtio quia non transfertur per homagium res data nec per chartam vel instrumentorum confectionem quamvis in publico fuerint recitata Bracton de aquir rerum dom cap. 18 sect 1. Lawyers say Donation is invalid forasmuch as this in act 2 Videndum est primò quid sit Traditio Et est Traditio de re corporali propria vel aliena de persona in personam de manu propria vel aliena sicut procuratoris dum tamen de voluntate Domini in alterius manum gratuita translatio Et nâ—hil aliud est Traditio in uno sensu nisi in possessionem inductio id ibid Sect. 2. vid Flet. lib. 3. cap 15. Sect. 4. parts with the thing and till it be even a guift remaines with the Giver but the expectation hereof may well be superseded here forasmuch as the right of tythes is a Right and so not capable of delivery For it is a Right and not 3 De re corporali ideò dicitur qùod res in corporalis non patitur traditionem sicut ipsum jus quod rei sive corporl inhaeret et quia non possunt res incorporales possideri sed quasi ideo traditionem non patiuntur sed quasi nec adquiruntur nec retinentur nisi per patieâ—tiam et usum Bract. ubi supra fol. 39. Iura siquidem cum sint in corporalia videri non poterunt nec tangi et ideò traditionem non patiuntur sicut res corporales id cap 23. Sect. 1. fol. 52 Item acquiruntur nobis temporalia corporalia I beleeve it should be per traditionem res enim corporales patiuntur traditionem secus verò de incorporalibus ut sunt jura advocationes ecclesiarum c Fâ—et lib. 3. cap. 2. Sect. fin a body which can nor give nor take and the rules of the law must not think to alter the nature of things or make that required which to be cannot Tradition is here therefore set aside in other cases necessary and this Guift being perfect without it our next must be of Ratihabition or Confirmation under which head march all the following allegations to our times to 4 Confirmare est enim id quod ptius infirmum fuit simul firmare id lib. Eod. cap. 14 sect 5. strengthen the frame that is now built and inforce from time to time to part with and give out what was here set aside and appointed to be given What those acts in law are shall not praeviously take up much inquiry from 5 Vid. F. Ratam rem haberi de ratihabiâ—ione lib. 46 tit 8. Justinian or 6 Vid Cook Inst 1. on Littleton sect 515. fol. 295. Westminster I content my self with their 7 Generaliter effectus ratihabitionis est ut voluntatem nostram declaremus negotium quod alioqui ad nos nihil pertineret nostrum faciamus Cahl Lexâ—c Iurisprâ—d pa. 789. general nature to settle what has been 8 Ratihabitio est consensus qui negotium perfectum insequitur Id. ib. Rati enim habitio ad confirmationem prioris postulati pertinet F. de bonorum possesseonibus l. Quotiens placed Rem ratam haâ—beri that that which is they do as the 9 Videndum est igitur quid sit Confirmatio est confirmatio prioris juris dominii adepti firmatio cum prima firmitate donationis nihil enim novi attribuit sed jus veâ—us consolidat confirmat Bracton lib. 2. cap. 25. sict 2. fol. 58. word is Confirme Men no doubt were loth to part with their own to weaken their worldly estates though it were to stablish the Religion of the most high God to make them baggs which as our Saviour 1 Luke 12. 33. says wax not old to 2 Matth. 6. 20. Cap. 19. 21. lay up treasure in Heaven 3 1 Tim. 6. 19. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for another world and to make 4 Luke 10 6. Sermone etiam admonemur divino terrenis coelestia caducis his nostris aeterna illa promereri Aethelst in prafat ad leg speaking of Tythes friends of this Mammon of unrighteousness that when need is they may receive into everlasting habitations This made the lawes frequent the repetitions many the reinforcement earnest the transgression poenal and each continued in and through every age that so if might be Ananias might be met with at every turn and his wife Sapphira kept back that neither should venture again to pluck back what onely true piety and the love and fear of God had prompted them at first to give forth And now behold the laws are not to pay but be punished if men paid not CHAP. XII THe first that occurs in time and so in our order is that of K. Alfred and is in the preface to his laws remember we are now in the dawning of the common-law and this allowance shall grow up with it which before he out of modesty acknowledged to borrow from the tables of his Ancestors and speakes in brief thus 1 Praâ—fat in leges Alfred c 38. Lamb. Arch p. 19. Spelman Concil tom 1. pa 360. Thy tything portion or thy tythes give thou to God If any did not it was after agreed between 2 Vid. Leg. Eccl. ab Alured Gâ—thurno ib. pag. 377. cap. 9. him and Guthrun the Dane that the stranger should pay lahslite that is as 't is commonly interpreted twelve Ores and the English his forfeiture and with out this no peace which League and Law was after confirmed by 3 Haec ea sunt senatusconsultaac instituta quâ—e primò Alfredus Guthrunus reges deinde Edovardus Guthrunus reges
been compelled to Other Constitutions are also about the same time but not of so great moment yet because they have some force our niggardize shall not suppress what may be pleasing profitable or in any regard useful The next is about Cattle removeable from place to place and hath vertually sixe propositions Quoniam ut audivimus c. Nos viam pacis praeparare volentes statuendo definimus definiendo statuimus quod ad Ecclesias in quarum parochiis oves à tempore tonsionis usque ad Festum S. Martini in hyeme continuè pascuntur cubant decimae lanae lactis casei ejusdem temporis licet postea amotae fuerint ab illa parochia alibi tondeantur integrè solvantur Et ne fraus fiat in casu praemisso praecipimus quod antequam oves amoveantur à pasturis vel etiam distrahantur Ecclesiarum Rectoribus sufficienter de solvenda decima caveatur Quod si infra praedictum tempus ad diversarū parochiarum pasturam transferantur quaelibet Ecclesia pro rata temporis portione decimam percipiet earundem minori 30 dierum spatio in rata temporis minimè computando Si verò per totum tempus praedictum cubant in una parochia pascantur continuè in alia inter ipsas Ecclesias decima dividatur Quod si post Festum S. Martini ducantur ad pascua aliena usque ad tempus tonsionis in una vel diversis parochiis sive in propriis pasturis dominorum suorum sive alterius cujuscunque pascantur habita ratione ad numerum ovium pascua aestimentur secundum aestimationem pascuorum ab eorum dominis exigantur decimae 1. Where sheep are continually feeding and folded from shear-time to S. Martins day there the whole tythe to be payable to that Church and caution given accordingly before the removall 2. Within that space if they change from place to place each Church to bee satisfied for the time not reckoning of less then thirty days Or if they feed in one place and fold in another then to divide and so after rateably 3. Milke and Cheese to be paid where the Beasts feed and couch If these in severall places then to divide 4. Lambs Colts c. to be paid habita ratione ad loca diversa ubi gignuntur oriuntur ad moram quam traxerint in eisdem with regard to where they were bred kept and stayed Milk where the quantity is small and so for Lambs Colts c. according to the usage of the place 5. What sheep live to S. Martins day to be accounted for though they be sold to the Shambles or die after 6. If shorn in any Parish the Wooll supposed there due unless it were made appear to the contrary This I said is but supplementall for parting strife Men would be ready to require their dues and every honest man should be as ready to pay but occasions requiring them to chop and change before the year came round this was an equall and conscionable both provision and praevision to set down before-hand a fore-appointed rule what either should expect and so part strife before it was begun A summary confirmation of all which before and more distinct recitation of some things is in another of the same Authour following Sancta Ecclesia c. Cum Sacro eloquio jubente de omnibus quae novantur per annū nullo tempore excluso decimae sint cum omni integritate absque diminutione solvendae Lice átque unicuique capellano parochiali Rectori sive Vicario Parochianos suos per censuram Ecclesiasticam ad solutionem decimarum compellere Omnibus singulis Rectoribus Vicariis Capellanis Parochialibus Ecclesiarū Parochialium Curatis per nostram Provinciam Constitutis in virtute obedientiae mandamus firmiter injungentes quatenus diligenter moneant efficaciter inducant quilibet ipsorum in Parochia sua moneat inducat quod praedicti Parochiani omnes singuli integrè sine diminutione decimas inferiùs annotatas Ecclesiis suis persolvant sc decimam lactis à primo tempore suae novationis tam mense Augusti quà m aliis mensibus de proventibus etiam boscorum pannagiis sylvarum caeterarum arborum si vendantur vivariorum piscariorum fluminum stagnorum arborum pecorum columbarum seminum fructuum bestiarum guarenarum aucupitii ortorum curtilagiorum lanae lini vini grani turbarum in locis quibus fabricantur fodiuntur cygnorum caponum aucarum anatum ovorum thenicii agrorum apium mellis cerae molendinorum venationum artificiorum negotiationum necnon agnorum vitulorum pullorum equinorum secundum eorum valorem omnium proventuum rerum aliarum de caetero satisfaciant competentes Ecclesiae quibus de Jure tenentur harping still upon the right and that granted nullis expensis ratione praestationis decimarum deductis seu retentis nisi tantum de praestationis decimarum artificiorum negotiationum Quòd si monitionibus suis parere contempserint per suspensionis Excommunicationis interdicti sententias eos ad praestationem decimarum hujusmodi compellant Forasmuch as by holy Scripture all that renews yearly is to be tythed and it is lawfull to compel men thereto we command all Church-Governours and their Substitutes to move and inforce all under their powers to this duty that is to pay of milk of the profits of wood of mast if it be sold of stews ponds rivers pools trees cattle pigeons seeds fruits beasts of warren that is under known custody and guard for so the word imports of hawking gardens orchards wooll flaxe wine grain peat swans chicken geese ducks egges hedge-rows bees honey wax mils hunting handicrafts merchandise lamb calf colt and all other revenue without deduction of costs c. or if not to proceed to Suspension and Excommunication c. These three Constitutions Decrees Statutes Laws Orders they were for payment call them what you will were in one mans time and about the parting of Edw. 1. and Edw. 2. Raigns which it seems did not yet so remedy things as to prevent all future broyls A thing impossible Contentions will last while the world Laws can never reach their full intended force and operation in quieting strifes and calming the storms of mens rage and wrangling passions full and wholly but ever and anon they will break out to mischief and disturbance the Root is in our corrupt nature which will not but have Spring at some time of the year or other to shoot forth and fructifie unto grief and trouble in resemblance of the earth cursed for our sakes into a proneness to weeds and most Natural feracity of Briars and Thorns We shall finde this disposition generally received through the world Act. 20 35. that most men are more quick and nimble of the receiving hand then of the giving and though they be the words of the Lord Jesu That it is more blessed to give then to
despised the day of small things says the Lord in the 1 Zach. 4. 1. Prophet Or who can deny but small things may be of great use and consideration in the greatest sith by Divine appointment Badgers skin and Goats hair 2 Exod. 25 4 5. were offered acceptably to the building of a holy Tabernacle whereby was intended the great God of All should be honoured and sanctified That Lord Dominus 3 Psal 24. 1. cujus est terra plenitudo ejus who 4 Matth. 21. 3. despised not a convoy of the meanest and simplest of beasts for his person on earth seems Still to Need the vile things of this lower world to set forth his glory in this vile and lower world and if any one say ought to the contrary or in froward opposition say still as then the Lord not onely useth but hath need of them His servants though His live yet by bread if men as well as by every word that proceedeth out of His mouth their Lord and God And sith Though Jehovah could not be pulled out of Heaven by extinguishing any of those Lamps that burned to his honour in the Temple of the Lord at Ierusalem yet his wise old servants knew that unless their care cost and love did procure profane oile from Syria and Arabia Those Lampes with his honour would go out on Earth which made them contrive purpose and do accordingly Even so sith the nature of things is still the same unless there be left such loving and discreet followers of his now by whose vigilance industry and care some constant supply may be apportioned and issued forth for the maintenance of the outward part of his honour and support of his Gospel and those servants of his that do his pleasure in holding it forth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Rom. 13. 6. Ministers that attend this very Thing It is not without the compass of manly and Christian fear to be jealous lest the light and brightness of the glorious Gospel of Jesus Christ now shining in the faces of all men though not reaching to their hearts it is much to be doubted much less returning fruit in their answering upright lives should which God forbid be extinguished upon Earth by our negligence and parcimony though his Deity we trust shine now in Heaven and shall and ever above the brightness of the Sun and beyond all Eternity Wee hold God to be the end of the soul Truth the way leading to it and Him The Church the pillar and ground of truth to hold it out in view to the world this we are sure of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 1 Tim. 3. 16. the Apostle tels it us and the publick Ministers are the Churches servants If then these servant shall do that work in holding forth this truth to guide to that end They being Men must not have their daily allowance of Bread withheld from them which keeps them hayl and strong that they may live and be Able to follow their business or if it be the bottome foundation fails and the whole frame must be left to sink and ruine with it for want of sustenance or undersustentation Unless by an unhallowed presumption we dare go on Tempting God in stead of Trusting him still urging him to do and expecting he should do even ordinary miracles for our extraordinary preservation and then daily miracles would scarce be any wonders putting him upon more work yet after his Consummatum est to multiply loaves for his improvident Disciples and leading him once more out of the way into the Wilderness to lead us out of the path of his ordinary course of Providence to expect food from Heaven when there is plenty enough upon Earth Which if and the boldness of our unreasonable presumption rather then well-instructed Christian faith could be content to put upon Him Whether yet his servants who are to do the work and being party to the whole had need of some liberty of choice for refusal of the conditions could be content to accept for enough for their parts and hardy enough to trust to as their sufficient Viaticum for this convoy and their journey may not considering their humane frailty be without some doubt I have led you forty years in the Wildernesse your cloathes are not waxen old upon you and thy shooe is not waxen old upon thy foot Deu. 29. 5 As in the space of forty years to hope for no reparation of cloaths nor to put on a new shooe in half an age and go provided with nothing but naked poverty to carry them through a dry and barren Wilderness where no water is Hungry and Thirsty their souls fainting in them Yes They will questionless This and more if they be called and compelled thereto See Chap. 8. 4 Ne. hem 9. 21. if the enemies of God will deny them the way and the condition of things in an orderly Dispensation of Providence lead them to want as well as to abound But all the friends of God will rather guide and help them in the direct right way to their Canaan Neither denying them bread and water for their money as 1 Deut. 2. 27 28. 30. the cursed Amorites did but were after sufficiently plagued for it nor money if needfull to buy them what they want for their comfort in the way It being one of the most reasonable things in the world that they that give Heaven should not want Earth and They that sow to us Spiritual Things should not but reap our Carnall To all which things answering and well agreeing it was therefore religiously piously and prudently as well as justly resolved by those Councels guided Hen. 8. to diminish nothing here but to keep this settled and ancient Revenue of Gods honour free from the touch of sacrilegious profane and imprudent as well as unjust hands That no covetous Gehezi that loved his gain more then godliness should meddle with that belonged not to him nor greedy unconscionable Israelite with this portion of his Brother Levi due 2 Numb 18. 21. for his service he serves in the Tabernacle of the Congregation and as necessary for the Common-wealth of Israel as Judahs Simeons or Benjamins but when every one has enough he should be free from want and by as good security as any other claims his Right by his Tribe have its Own also not by benevolence but by Right and so have occasion to bless the Lord his God for the good land he has given him with the rest of his Brethren It being among our Divine Oracles agreeable to the Laws of Nature Equity Reason and Civill Commutative Justice that He that gives should receive 1 Matth. 10. 10. Luk. 10. 7. 1 Tim. 5. 18. The labourer is worthy of his reward 2 1 Cor. 9. 7. No one going on warfare is to march at his own charge He that feedeth a flock should eat of the milk of the flock And as He 3 Ver. 14.
the Statute the words whereof carrie as much shew of openness and plainness and this written in the face of them as can be expected or could be devised and that for more then a tyrannically imposed exaction a legal and just right of all accustomed Tenths to be hereby both payable and demandable Nor do I fear to be mistaken because lately perusing them the most Learned Lo. Cook I finde his interpretations agreeing with these my apprehensions Though why name I him alone when all the Learned go the same way the painful Students the professing Graduates the whole Innes of Court doubtless and as well as the Reverend now Judges as the whole Bench of them ever since have gone on interpreting declaring and judging according to this opinion CHAP. XXV ONely there is one thing wherein with due respects I should crave-leave to give in mine opinion with some difference from that most Learned man which seems also his constant resolution because he repeats it and it is That the proper scene of the trial of these dues was not anciently in the Consistory Cook in Instit 2. pa. 661. on this very Statute of 2 Edw. 6. And before on the Statute of Circumspectè agatis pa. 489. and in Instit 4. chap 53. pa 260. till placed there by Circumspectè agatis Articuli Cleri 18 Edw. 3. chap. 7. c. but in the County Court Which if much of what before would lose much of its strength But seems not so allowable for these following reasons I. No such thing is averred plainly and positively in any of these Laws or any other And that had need be plain and positive should have changed a thing Such a thing in being II. The evident contrary is in them all either expressed or insinuated For for the latter it mentions the remanding or dismissing suits of Dismes back from the Secular Judge which must be sure somewhither And for the two former which might be answered to create that referrer take them either together or apart 1. Together and so they mention severally a Prohibition Prohibiting what say I That which never was Or then was no where This were non-sense as to the reason of it and it were a great blemish to the wisdome and gravity that hath always attended those Assemblies to suppose they would declare any thing for Law that might imply contrariety or absurdity in truth and reason As that That should be prohibited to be that had not been or that the Kings Judges should deal circumspectly with the Ecclestastical not forbidding them to hold plea of that they never did hold plea. The rule is in nature before the exception the thing before the limitation And exhibition of something granted and used before there can be thereof a Prohibition As there must be Marriage before Divorce and a property of Meum Tuum before the Decalogue can take place forbidding to steal Even so here there must have been a trial of tythes before with the Eccles Judge before the Kings could be prohibited to prohibit him his hands must have been loose before they could be forbid to be bound and He used no meddle before any could soberly and rationally meddle to hinder his medling 2. Apart and so all is yet plainer for consider them distinctly and by the first Chapter of Articuli Cleri No prohibition was to take place to hinder the proper Court in matter of tythes and surely then the business was there And for Circumspectè agatis there is express mention of their there trial For the Judge of Norwich was not to be hindred nor his Clergy if 1. they held plea of things meerly spiritual as of penance c. in their Court Christian 2. Nor if a Parson demanded of his Parishioners oblations or tythes due and accustomed c. So that They were there Then demanded and in the close In all cases afore rehearsed the Spiritual Judge shall have power to take knowledge notwithstanding the Kings Prohibition Which is not a little strengthned by a former Statute as it seems it is though of the same year for it is placed before it where 1 Westm 2. c. 5. 13 Edw. 1. in Pultons Abridg. p 50 it is said When once in a Writ of Indicavit the business is deraigned in the Kings Court that the prohibiting Patron can sustain no considerable loss in any part of his Lay Advowson presently as it comes to be a case of tythes it is sent back to the Court Christian and 2 The same Statutes of Articuli Cleri Circumspectè Agatis Westm 2. allow to the Spirituall Iurisdiction cognizance of a fifth and of all parts lesse then a fourth of the value of the Church in tythes controverted between two Parsons And no Iudicavit is grantable to forbid the suit of one of them commenced for any lesse part in respect of the Patrons Right onely Neither upon them by consequence hath any Writ of Right of any part of Tythes that appears not to be a fourth part of the Churches value been allowable So expoundeth M. Selden in his History of Tythes pa 427. the plea shal passe there so far forth as it is deraigned in the Kings Court. III. The Stat. of 1 Rich. 2. 13. mentions it then as Of old and had Wont to be that tythes should be tryed where they were sent but had been lately restrained which had been very inconveniently said of such late times as were so little before as almost within an hundred years especially by a grave Parliament as was urged before which useth to measure words and know things But of this sufficiently there IV. The Statute of Consultation alledged also before was made 24 Edw. 1. sc before two of the three alledged and so speaks as could not be supposed more plain against stopping the Ecclesiastical Judges by Prohibition which shews surely they did proceed then V. Review and call to mind what was said before here 3 Pa 103 104. c. both of erecting the Ecclesiastical Court and trial of tythes there and how long for they were under the Canon and this will be much toward or reach home to the clearing of the whole business VI. Examine things according to their nature and they would seem always fitliest here considerable For who looks upon things as they are and thinks not every man fittest to take care of his own matters The Church fittest to look to the things and support of the Church Or that the maintenance of our Religion could have been ever anywhere more fitly inquirable and determinable of then in the Court Christian the Court of Religion Yea even frther for this reason because they were spiritualibus annexa as Bracton calls them ordinarily they must be in way of tryal spiritualitati annexa And hence also we finde the purposed and dispersed tractation of them as in their proper Cell in the Canons Not in the Statutes nor in the Year-books nor in Bracton nor Fleta nor the Common
Law it self of late days for the nature of them brought them elsewhere for Regulation and Tractation Why not Yea necessarily Therefore to the answering Court for discussion VII Take the opinion of one not less Learned without disparagement then that Learned Justicer who with judgment and much freedome inquired here into and purposely long since And he settles the Jurisdiction from the County to the Consistory by the Conquerour as before 1 Selden Hist of Tythes cap. 14. His 14. Chapter is a Judicious and Intended History of that Jurisdiction which having found commixed with the Secular under the Saxons and Danes He makes them part with the Conquerour He produces some instances of Cases soon after reasoned and determined before the Ecclesiastical Judges and with equal diligence is troubled to find as a rarity some other in the Kings Court so low as about Hen. 2. and King John and then Regularly they began to come to the Church alone and nere there handled at first instance onely This and it hath been so ever since is long before 9 Edw. 1. VIII The Stat. De Regia Prohibitione seems made when before The print has it indefinitely for Hen. 3. or one of the first Edwards But sith no evidence is for any of these the place and manner of entring may give it to pass that it was in the former sith as before in the least deceiving or to be suspected way of entring in Manuscript of about those times written it is cast in among the Laws of that date and by name before the Statute De Bissextili made 21 Hen. 3. IX Plainly in another Manuscript of that Kings Raign among other grievances which the 2 Annals of Burton in M. Selden pa. 429. And observe what follows in Rob. Grossetell hu complaint there next especially that A seculari n. Iudice discinâ— di non poterunt pa. 431. and the advice of the Synod at London p. 433 Clergy in a Synod at London represented to Otho the Popes Legate desiring him to represent them to the King for remedy One was The lavish use of the Indicavit whereupon Solent Justiciarii Domini Regis judicare quota pars decimarum peti possit vel debeat coram Judice Ecclesiastico which was to binde the hands of that Judge presupposing therefore certainly and therein that he had then some liberty to use them And another Article Item ne currat Prohibitio Domini Regis ne Rector Parochialis Ecclesiae impetat eis qui percipiunt decimas infra limites Parachiae suae There needed a Prohibition then to stop the usuall course of the Parsons suing for the tythes of his Parish where think we X. To omit 1 Decimae quatenus decimae debent in foro Ecclesiastico intertari lib. 6. cap 37 Fleta who might be but under Edw. 2. and yet many passages are in him fair for proof that as sure they were then so things had continued from Bractons time But for Bracton by assurance enough 'tis evident from him that he often mentions tythes as Spiritualibus spiritualitati annexa and indeed he that can judge any thing by complex on of things will be apt to pass his sentence from their nature they were not far off from Causes Testamentary Matrimonial and other of tenderest like nature and consequence then knowne to have their walke here Among other 2 Lib. 5. Tra. 5. de Exceptioniâ—bus cap. 2. sect 5. so 401. Exceptions treating of them in general he lays one sort against the Jurisdiction of the Court describing and defining what each is and coming to that Section Quae pertinent ad forum Ecclesiasticum quae ad forum seculare among other things this comes in Nec pertinet ad eos the King and Secular Judge cognoscere de iis quae sunt spiritualibus annexa sicut de Decimis aliis Ecclesiae proventionibus Item nec de catallis quae sunt de testamento vel matrimonio After proceeding to the Common place of Prohibitions 3 Lib eod cap. 9. 10 fo 406 407. quando in quibus locum habet Prohibitio sicut de re sacra c. when allowable when not They do lay he says in case of lay fee c. but they do not when the doubt is de aliquo spirituali vel spiritualitati annexo Is tythes any such directly It follows Item locum non habebit prohibitio si agatur de decimis which gives more then their Jurisdiction here here alone without any removal a Prohibition could not prohibit and it had been vain again to suppose a Prohibition of that might not be prohibited This is farther that alone that takes place to cause a suit to be new 1 Cap. 4. sect 1. fol 402. graffed from a Clerk to the Patrons name bringing upon supposition of wrong done to him in his Lay-Advowson the main to the temporal Judge by Indicavit And this not only if the whole tythes were in question but a 2 Ib. sect 2. fourth part a fifth or a sixth but no farther for so far the Writ of Indicavit would then reach though 3 By the Statute of Westm 2. ca 5. Circumspectè agatis sect 2. Artic Cleri cap. 2. Whereof see a notable disquisition in M. Selden de dec cap. 14. since it bee altered and to the fourth part limited Again Item 4 Cap. 10. sect 6. fo 408. locum non habebit prohibitio de recenti spoliatione ut si Clericus Clericum spoliaverit de Decimis vel aliis de quibus cognitio pertinet adforum Ecclesiasticum in another place And yet again in another they are both styled 5 Ca. 16. fo 413 Res Spirituales not onely Spiritualitati annexae in their Jurisdiction as was alledged where 6 Cook Inst ubi supra before but Res 7 Bract fo 412 Spirituales and are said to shift faces and change shapes now for This anon for That One while for lay Then for tythes and back again ere long as it may be to Temporals As Lay Laica catalla So they are under the secular authority As res decimatae tythes marked out so under the spiritual and as sold returning back again to Westminster Quo teneam nodo yet thus it is and the thing the same under severall suppositions and considerations Many other such assertions suppositions and intimations there are in him The whole frame of whose Discourse bends this way or is managed as supposing things thus and I am confident he hath not any thing to the contrary As for Glanvil who was before he mentions the Court Christian often but never tythes tryed there that I could finde though Glebe often This I confess But then withall he mentions them not all to trial nor as here nor anywhere else and so his authority is to be drawn neither way Bracton dates from the farthest backward besides And he hath as hath been seen And these things do I rest assured secure
and had it seems for his own use and others laid together sundry Rules which he judged most expedient to be followed among which after for Tythes in general for Personal 2 Vid. Exceâ—pt Egherti can 100. in Spelman Decimae igitur tributa sunt Ecclesiarum saith he egentium animarum O homo inde Dominus expetit decimas unde vivis De militia de negotio de artificio redde decimas Tythes are a Tribute due Therefore pay of all thou livest by of thy spoiles of thy work and of thy handicraft Of about K. Knouts time were also some other 3 Capitula incertae editionis cap. 35. in cod p. 610. affording reason again with command and equity mixed with true piety Admonendi sunt qui negotiis ac mercationibus rerum invigilant ut non plus terrena lucra quam vitam cupiant sempiternam Merchants and Tradesmen are to be minded that they look not more after gain then godlinesse their estates then their souls and a little after Sicut ab his qui labore agrorum caeteris laboribus victum atque vestimentum quaerunt necessaria usibus humanis acquirere inhiantes instant decimae eleemosynae dandae sunt ita his quoque qui pro necessitatibus suis negotiis insistunt faciendum est Vnicuique enim homini Deus aedit artem qua pascitur unusquisque de arte sua de qua corporis necessaria subsidia habet animae quoque quod magis necessarium est subsidium administrare debet As of Husbandmen and day-labourers Tithes and Almes are to bee spared so of those that deal in any Trade for God gives to every man how to live and what from his gift man so uses to provide for his body much more ought he therewith to be at cost to provide for his soul But the most observable of this intervall was that given before from King Edwards Law 1 In cod p. 621. cap. 9. De hortis negotiationibus omnibus rebus quas dederit Dominus decima pars c. of merchandise and All the Tenth to be returned to God that gave which yet because it was there both given and repeated needs not here again to be transcribed and recited Remembered be it that whereas before the Common Law was said to be made up of certain pre-existent materials They as to this particular may have been such Laws as these Whereas also those parts were after made up into one common body by King Edward in giving this he may seem to have given the extract of Those of this Nature before him Lastly whereas those so distinguished Laws had after severall Scenes whereon things within their several charges were acted what was Ecclesiasticall being separate for the Consistory what Temporal left to the Shire Court c. Therefore we may not now reasonably hereafter look for any thing more of these personal Tythes but where they were that is among the Synodals and Provincials and there indeed we finde nay we have both found and already given them before remembred and recited as What said 2 Lindwood lib. 3. tit de decimis cap. Quoniam propter Rob. Winchelsee Statuimus etiam quod decimae personales solvantur de artificibus mercatoribus sc de lucro negotiationis We appoint personal Tythes be paid by handicrafts-men and merchants Similiter etiam de Carpentariis Fabris Caementariis Textoribus c. and of Carpenters Smiths Masons Weavers and all workmen What 3 Ib. Cap. Sancta Eccl. sia said he again Decimam lactis c. venationum artificiorum negotiationum of hunting handicrafts and merchandise What said Simon Mepham and Jo. Stratforth but to confirm and inforce what before he had before stated and as well might then those that were predial and acknowledged due have been denied as these They stood both on one bottom So Edward 6. found them and did by no means raise and impose this personal burden but bound it on to continue fast where it had been and was insomuch that in stead of barren words and empty lines a special emphasis is to be acknowledged in that part of the clause laden with much Truth where Every person exercising merchandises c. being such persons and in such places as have within fourty years past used to Pay Personal Tythes or of Right Ought to pay save day labourers is commanded yearly before Easter to bring in their Dues They were used to be paid Then as Now and Now as but Then they must and ought To make the Payment whereof more sure or supply the defect there was appointed a distinct 1 Si decedens tria vel plura cujuscunque generis in bonis suis habuerit animalia optimo cui de jure fuerit debitum reservato Ecclesiae suae à qua sacramenta recepit dum vâ—veâ—et sine dolo fraude seu contra dictione qualibet pro recompenlatione subtractionis decimarum personalium oblationum secundum melius animal reservetur post obitum c. tit de consuetud cap. statutum per Simon Laughan mortuary of those that were not very poor for compensation of such personal Tythes subtracted The force of all which things and particularly the two Constitutions before mentioned was such even before the statute that as grave a 2 St. Germane lib. 2. Dial. ult fol. 172 173. Lawyer as I believe any lived in H. 8. time though he wonders at some particularity here that they may be demanded and if denied sued for whereas in other places they are left it seems to the Debtors conscience yet he avers their Duenesse describes their Nature speaks of them as of known Right no more questionable then predial And what should have been done about them if the intended Reformation so often spoken of had proceeded to maturity might be guessed by that which was For 3 Magnam indignitatem habet à tenuibus laboriosis agricolis decimas annuas Ecclesiarum ministris suppeditare mercatores autem opibus affluentes viros scientiarum artificiorum copiis abundantes nihil fermè ad ministrorum necessitates conferre praesertim cum illis ministrorum officio non minùs opus sit quà m colonis Quapropter ut ex parâ— labore par consequatur merces constituimus ut mercatores pannorum confectores artifices reliqui cujuscunque generis ac omnes qui scientia vel peritia qualecunque lucrum percipâ—unt hoc modo decimas persolvant pro domibus nimirum atque terris quibus utuntur illarum ratione decimas praeâ—iales non solvunt quol bet anno dabunt annuae pensionis decimam partem Reform L. Eccles tit de decimi cap. 14. p. 122 vid. etiam cap. 13. 15 16. four severall Chapters are taken up there about the disposition of them the heads whereof were given before and into the Contents of one of them this very Statute is taken and authorized If there had been a new Canon Law those Chapters should
have been part of it As there is none the old is of force and in all its power beside the Statute and that again by Statute Neither had the thing onely consideration in Books we finde regard given to it in the Acts of Men and the World busied not to say very much troubled about the Wealth that came in by them The great and vexed Controversie in Oxford in Henry 6. time about Fr. Russell and his Doctrine which took up the learned Disputes of the University there and smoother Consultations also of the Convocation at London and after was transmitted to Rome and there not ended was onely about the necessary and fit Receiver of personal Tythes while he maintained it seems to his own advantage and against the Secular Priests that they might be given as well to the poor as the Church as we say to the Monk as to the Priest and then he stood ready as a Mendicant as the Priest for his Parish They on the contrary to the Church onely and so He and His were excluded The determinations it seems settled the major part against him and he for his errour was injoyned to recant publickly at Pauls Crosse lesse then the performance whereof would not serve the turn and all the Pulpits in England commanded to ring of what an Heresie Fr. W. Russell had maintained indeed against the Pulpits about personal Tythes now to be cried down by all opportunity and the utmost of possibility The Particulars I finde 1 By Mr. Selden in his History of Tythes cap. 7. Sect 5. related at large the use I make of them is onely this that These things Have been of Real consideration not an empty Book Order but such as had influence upon things and produced visible effect the Consultations of Men having been taken up about the disposall of the seen fruit of them much busying yea not a little troubling the World for long since and so long together and so no doubt things stood to Edward 6. time and so he found and left them Whereupon and that ancient rooted Right spreading likely further as might be found by further inquiry if it were also needful he settled his new vote and order of confirmation as it were What to make personal tythes due to give them life and raise them to being Nothing less to revive and quicken the Law that dull men that were to pay and had wont might be rouzed up to a ready and obedient performance of that which was their ancient known duty to awaken justice and force backward men to bring in their publick tribute which though for Gods service their worldliness had rather perhaps were left out or let alone Due they were before This vote of publick power onely cleared the channel that the in-come might be it self and come in fresh and free without impediment for which His words and Act reach we see fully his meaning By occasion of which clause of such import thus much Thus much of Personal Tythes And thus much also for that last binding Act of State both for personal and predial in 2 3 Edw. 6. Behither which is little but the implying Petition of Right in the grant of All mens without doubt meaning These That other was the last clear full expresse purposed and direct binding order Not yet of no force Even for it self though the chief strength beside the Legislative power of the Land here drawn into Act is in abroad and before The Root that supports and cherishes most powerfully both predial and personal still laying farther in the Right created by ancient Constitutions deeper then possibly can be thought by any new declaration For we shall seldome meet with a tree that planted the last year hath attained much strength It must have time to root and settle before it can be able to endure the shock of a tempest or make good its being against any forceable opposition So the best and usefullest Constitutions of State are those experienced firm ones that have lived summered and wintered with us as we say and given approbation of their agreeing with the soil by having safely endured there all influences Settling and gathering strength as it uses to be and Must by degrees and in and with time clasping in fast to be made one co-incorporate with the soil of a Re-publick Rash decrees use to be as soon revoked almost as made bespeaking little but uncertainty at first both to themselves and all things and persons that they are conversant about Blessed are the days when the Aged decree Judgement the ancient and experienced good Laws I mean are made the sure and constant rule of Righteousness And even this Humane Ordinance hath so much in it of Divine that it partakes of toward his nature who is Constancy and Immutability CHAP. XXVII BUt to go on to the mentioned Petition of Right a great and bright star shining hithermost and very clear in the firmament of our Law whose allowance vulgar apprehensions still gaze at for the great and onely stabiliment of all as indeed an excellent and needfull stay it then was when it was of the subjects tottering property But to look upon it as the onely bank and bulwark against tyranical invasion both the settler of Right and Giver the knowing know there is more then twice ten times as much dispersed abroad though in latebris to plain English Readers as this Nor could the supream power without breach of trust and transgression of duty have before and so it may still invade the peoples Right or without injury have then and so it may yet do injustice and unrighteousness A Bond this was upon the former Covenant a new lock added to the former bolts and bars to keep out invasion from above from protectours now explicitly purposely newly and afresh confirming to all their old Rights no more And say which The Merchants right the Gentlemans Right the Noblemans the Free-holders and why not also the poor Scholars too the Church-mans too whose work is Church-work and his Trade and Calling publick holy heavenly duty that so having his Due he may the better do his Duty having his Right people may the better look for Theirs and having his property to live on his Living secured him in peace and with assurance he may now 1 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That ye may wait on and stick close to the Lord 1 Cor. 7. 35 serve His Lord above Alone and having nought of this vile yet necessary world to interrupt and stop his course he may now wait upon Him 2 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Not whiâ—led and turned hither and thither as men â—se that are distracted with cares how to live for violent are the pullings of flesh bloud to preserve it self and self-loving nature will look about before it yeeld to be suppressed or choaked But that ye may attend this Thing alone and serve your now onely Master without avocation ibâ—d without distraction The rather considering
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
Non sufficit quòd petentes probent se jus habere omnes vel quidam eorum ad hoc quod auferatur possessio à tenente nisi sit qui probet se majus jus habere Paritas enim juris non aufert seysinam a tenente propter commodum possidendi privilegium possessionis A stronger weight must be to fetch up the Scale when a Possession is settled any way a parity or equality of Right leaves the thing onely where it was Again if an Action be begun onely upon pretence of 2 Id lib. de Exception ca. 19. Sect 6. f. 418. Et si uterque Bastardus fuerit tam petens quà m tenens petens Bastardiam objecerit tenenti si tenens replicando dixerit petentem esse Bastardum oportet petentem se do cere legitimum alioquin nihil capiat cum melior sit in hoc casu conditio possidentis c ib. Sect. 3. And see also before the very end of the Book de Assisa mort Antecess Agreeable with Flet. lib. 6. ca. 39. Sect 7. p. 433. Bastardy and the Defendant put in his Recrimination The other is what he Accuses This Plaintiff must both prove his own legitimation or else all is well again and shall continue as it is and which is more is Therefore well Because it so is unless there be a greater strength of Reason to alter and remove For the Law still favours that which is in Being which shall not be altered for equally good or unless for clearly better as an Army of ten thousand upon equal Advantages in Nature is able to stand upon the defensive against a far greater number a like force is not like to remove it Farther What must be done if a man fell his Right to two men or a pretender his coloured shew of Right for Right Who shall then obtain The 3 Bracton l. 2. c 18. Sect. 2. f 41. Flet. li. 3. cap. 15. Sect. 8. p. 202. Rule is given Rem Domino vel non Domino vendente duobus In jure est potior venditione prior The first Buyer had first Right and shall carry it agreeable enough to that of 4 If a man sell to two persons who shall enjoy Iuhanus libro septimo digestorum scripsit ut si quidem ab eodem non domino emerint potior sit cui priorires tradita est quòd si à diversis non dominis melior causa possidentis sit quam perentis quae sententia vera est F. de Publiciana in rem l. 9 Sive autem Sect. Si duobus Et cum de sucro duorum quaeratur melior est conditio possidentis de diversis reg Iur. l. 168. Sect. 2. Vlpian in the Civil Law Nay sometimes this carries a victory where there is no fast ground to fight on and maintains the field stoutly having onely this to say I am there â—Tis in the case where he that has no Title sues against him that has but as much and in possession where can scarce be comparison neither having any thing and yet the Possessour Thereby has enough to carry All. 5 Bracton fol 161. Quia cùm neutor Jus habeat melior est conditio possidentis And no marvell again then if the 1 Et quia longè commodius est possidere quà m petere ideò plerunque ferè semper ingens existit content io deipsa possessione Commodum autem possidenti in co est quod etiamsi ejus res non sit qui possidet si modò actor non poterit suam esse probare remanet in suo loco possessio propâ—â—r quam causam cùm obscura sunt utriusque jura conrra petitorem judicati solet Iustit lib. 4. tit 15. sect 4. ver Retinenda Emperour observed so much Contention to be for Possession as that would sometimes winde in all the rest and carry the whole business These are the favours of Possession when in a double claim the measure of Right is on both sides equal which seems to be grounded upon that repeated and so much varied Axiome both of the Canonist and Civilian or rather upon that reason upon which they both are founded In favour of Peace to keep that in being that is For if quarrelling men should be hearkened to in every motion and but upon equal terms be heard with no disadvantage to him that begins the Fray little would soon be left quiet among men our nature is so peevish or weak and many or most herein so very natural that Contentions would multiply beyond either doubt of reason or hope of end if there were not some publick devices and honest discouragements invented to choke and stifle them at the very beginning whence prudently he that first stirs is onely assured of disadvantage to begin upon the uneven Ground must give him so much the worst at first that if his Plea be no better then his Antagonists it is in no sort good If his Antagonists be but as 2 Cum par delictum est duorum semper one ratur petitor melior habetur possessoris causa F. de diversis reg Iur l 196. good as his it shall be better For In 3 Fleta lib 2. cap 63. sect 11. pag 137. paritate Juris prior admittitur defensor quà m pars actrix In equality of Right none shall be dispossessed of that he has And 4 F. de diversis regulis l 167. Favorabiliores Rei potius quam Actores habentur If there must any favour be shewed it shall be to the Accused and if the Judges 5 De rejudicata l. 38. Inter pares cannot agree or be equally divided He that is impeached shall be quit though he be guilty for if the Scales hang even of proof and 6 Cum sunt partium Iura obscura Reo favendum est potius quam Actori Iur. Canon Reg 11. probability 't is presumed for him that Has innocence still and in all looking as it were with an evil eye upon those that move complaints and in favourable supposition of that well that is Hanging back with might and main from alteration upon equall strength 7 Reg. Iur Can. 56. In re communi potior est conditio prohibentis both must agree to stirr or the thing stands and One shall never draw forward so powerfully to alter and change that which is as another with equal strength shall hold back to stay things where they be because Melior est conditio possidentis if both be or seem good the Possessors title is thereby best Peevish malice is apt to cherish melancholick Dreams of black Distempers every where but the serenity of clear and firm wisedom is always mixed with that goodness that thinks most things well That deforms all for amiss that looking on with an evil eye it sees not well This charitably inclines to believe well of all it findes not evidently ill whence with aversation to change as little alteration is made as may be
without apparent wrong That must be not so good but better and truer which is promised and he that is in possession of 1 In eo quod vel is qui petit vel is a quo petitur lucrifacturus est durior causa est petitoris F. de diversis reg Iur. antiqu l. 33. wealth or innocence unless there be greater strength to assail and remove then is to defend let him keep fast and sure without any molestation in his present possession But go on 7. I said further The Plea of Possession is against all the World everlastingly good till it be legally and orderly everted So said 2 A London Minister in his Resolution a Doubt printed with Sir Henry Spelman of Tythes l. 19. one in this very Case of Tythes not long since honestly judiciously truly and very prudently nor is it but fit it should be so for if a man might be presumed wrong in at any time he might be cast out if one then another if by one then by another and so no one from any one could be safe at any time or any thing constant settled ever no remedy therefore but all be judged right that is and till orderly proceeding do cast out of doors a man be presumed justly in his own home where he is 'T is one thing to have a Benefice void in Law another thing but voidable sayes the Canonist the murtherer is not to be hanged presently though he deserve death and must die and though I am in condition and may be cast out of my house till by order I am so I ought to be safe and fast there Do not 3 Hooker in his Preface Sect. 6. Equity and Reason the Law of Nature God and Man All favour that in being till orderly decision of judgement be given against it said he whom some count next to an Oracle and Praesumptionibus standum est donec probetur in contrarium Things are to be thought well till the contrary appear and where any thing is under the God of order 't is a fair likelihood it should be there and we are reasonably and piously to believe it so till new light shew it clear to the contrary But one word more and it is That Possession shall in sundry Cases help a man to keep what by equal strength of title he should never have been able to get If he were out he should never make way to get in but being in he sits fast and out no man shall ever be able to put him For in many Cases 1 Frequens enim est apud Iurisconsultos aliquem esse tutum exceptione qui non sit ipso Iure Io. Calvin Lexic Iurisp p. 731. there lies Exception a ward to defend where there lay no Action or effectual means to assail A man may have power to keep another out that could never there himself have got in defend that Castle he could not take and bolt his Adversary out by help within effectually where himself could never get in if he were out nor can be put out Therefore because he is in The 2 Bracton l de Action c. 12. Sect. 4 f 113. Father of our Law speaks to this purpose Item est alia ratio quòd qui rem petere voluerit si cautè sibi providerit videat primo an aliqua ratione nancisci possit possessionem quoniam commodius est possidere quà m petere Multi enim sunt qui si possessionem habuerint se defendere poterunt per exceptionem Si autem fuerint extra vix aut nunquam ferè recuperabunt per actionem And these are the benefits priviledges and advantages of Possession no marvel if before observed the reasonable object of great ambition for it gives Right the most natural of proof against all but one and him at last It swayes the Scale in an equality is safe and just till it be evicted and keeps a man whether he could never have been advanced Object Which if all it seem unreasonable on the Possessours part as giving advantage to the rich partially and settling men by Law in that they have no right to as like sometimes it does 1. Answ Sure we say first the Law is never unreasonable but the defect is on our part who do not apprehend that Reason is the Well is deep and we want to draw of plenty 2. And for the unreasonableness here it is without cause imagined For it may be considered and must be granted 1. That the Stage is open what is or is done in the World cannot but be known 2. Men love their own 3. Are apt to make out for it 4. Have means to come by it 5. In the honestest surest and best ways that could yet be found of Law 6. Whether in Possession or Action what is not found amiss is reasonably to be judged well Now these things presumed and known and withall it being seen such a one Has how unlikely is it but that he should and ought to Have else we should not see him Have or if the right were in another the Possession which he cannot but love must bee with him If there were no Courts or presumed Partiall or men negligent or the whole frame of things composed toward injustice to make or let things alone ill or not well Then might we doubt reasonably and against the Possessour cherish vehement suspition but nothing being more evident then the above mentioned to be granted assurances leading directly to the contrary How can we but judge for what Is and that the Law is reasonable favouring the Possessour as it does Praesumptionibus standum est donec probetur in contrarium as before and that he hath right for if he had not as things are hee should not have I will not deny but some hard measure may be hereby meted out to sometimes or perhaps wrong But this in some degree may well be allowed the Soveraigne Authour of All our right Better this then worse as worse would be if this were not and sith of two this way is the best reasonably is it chosen though it be not in all regards so good as it might be This of Possession in general and our loved Law about it as in every thing else so here very amiable and as hee said of truth Si oculis cerneretur humanis admirabiles excitaret amores But now some one may ask what is this to our argument That was of Tythes How are They advantaged hereby Rom. 3. 2. I answer with the Apostle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Much Every way Be it first resumed that They are Possessed It is not more known that men have Harvested Or plowne or sowne or their Garners been madeful and plenteous with all manner of store but with equall certainty and evidence this advances it selfe in the face of the world and he is scarce acquainted out of his owne Parish nor in his own Parish in England to whom this is not known by evidence certain
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-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
aqua quotld l. 3. Sect. 4. Ac fortè non improbabiliter dici potest non esse hanc rem in sola praesumptione positam sed jure gentâ—um voâ—juntaâ—â—ò inductam hanc legem ut possessi o memoriam excedens non interrupta nec provocatione ad arbitrum interpellata omninò dominium transferret Credibile est enim in id concessisse gentes cum ad pacem communem id vel maximè interesseâ— Grot de Iure Bell. l. 2. c. 4. Sect. 9. knowledge of present men if within the reach whereof any thing be seen and to be said as known and remembred the Possessour is loose and may be removed if otherwise Melior est conditio possidentis He that has is secured his continuance of having 2. But because this might flag or prove uncertain and is always wavering some more certain bounds were thought fit to be enquired after which as stakes fixed at least at one end migh determine huc usque shall inquiry come and no further precisely laying down what might be expected as 't were to a year and a day As in Glanvils time the Claim must be laid in some 1 In tract de de leg Ang. l. 13. c. 33 35 36. Cases since the Kings last Voyage into Normandy in 2 lâ—b eod ca. 3 5 6. other since his Coronation in 3 l. 2. cap. 3. l. 12. c 10 Writs of Right his Grandfather Henry 1. and if on this side these severall limits nothing could be shewed to molest c. beyond was as good as nothing In Bractons time under Henry 3. the widest Writ of 4 Bract. de defaltis c 5. f. â—73 tract de excepâ— c. 19. Sect. 1. f. 416. Right was bounded by Henry 2. time others narrower according to the limitation of the 5 20 H. 3. c 8. Statute of Merton In 6 Fleta l. 4 c. 5. Sect 13 p 224. l 6 c. 6. Sect 3. p. 401. Fletaes time who lived likely under 7 vid. Seldeni dissert ad Flet. c. 10 Sect. 2. Edward 1. from the days of Richard 1. according to the 8 Made about 3 Ed. 1. Statute of Westminster 1. cap. 38. And this it seems remained to Littletons time about Henry 6. for 9 Sect. 170. f. 113. he mentions the same to be the Hercules Pillar then beyond which no Claim could be laid to any thing 3. But albeit these times of Limitation were reasonable when they were made I make bold here to 10 From Cook in his Instit 2 on the statute of Merton c. 8. p. 95. borrow a little piece yet in process of time there being set times appointed in former Kings Reignes from which as a Barque from the fixed Land the future went always further and further the times of necessity grew too large whereupon many Sutes Troubles and Inconveniencies did arise and therefore the makers of the Statute of 32 Henry 8. took another and more direct course by setting stakes as it were at both ends of the stage Which might endure forever and that was to impose diligence and vigilancy upon him that was to bring his Action so that by one constant Law certain Limitations might serve both for the time present and for all the times to come viz. That the Demandant should alledge Seisin in a Writ of Right not above sixty years next before the Teste of the Writ in others thirty in others fourty in others fifty This yet left some difficulty which was after explained in 1 1 Mar. c. 5. Queen Maries time and pieced out as to some trifling Sutes according to much 2 Cook Instit â—od p 96. desire in 3 21 Iac. 16. King James his time and so do things I think remain with us at this day Now from these severall Limitations of Prescription abroad and at home and about them I cannot but note their general end which was no doubt to prevent Sutes as much as might be depending on proof remote and of dark days past by limiting to fourty fifty or sixty years seldome farther c. All which it was also fit to note 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or at large that by seeing what has been not in this place or that but All Abroad we may the better make estimate of what we shall finde in our Case by comparing the length wherein is also the strength of This prescription with that has been generally reputed enough and to establish a Right elsewhere I confess the thing it self as to the equity of it seems not to me at first sight altogether so 4 Not Praescriptionem esse odiosam gloss Praesidium ad novel 9. fair and reasonable as that Thereon any thing should be settled or There-from derived for it seems as it were many times to settle a 5 Quod initio vitiosum est non potest tractu temporis convalescere ff de diversis reg l. 29. Right upon a Wrong a Due upon an Exclusion perhaps of Right and at a venture such a one shall keep what by Gift Succession Escheat or otherwise May in due scanning perhaps belong to another Perhaps also to him that has it But this is Vncertain and Justice should never proceed but in a regular constant certain sure way And therefore the prudent 6 Nam de iure naturali praescriptiones non sunt inductae nam de jure naturali iniquum est aliquem ditari cum aliena injuria gloss Legis ad Caus 16. qu. 4. cap. Praesulum gloss upon the Decree scarce allows it to be according to the Laws of Equity and 1 Nay it is contra naturalem aequitatem gloss vel injuria ad ff de negotiis gestis l. 1. Nature which would by no means have any one 2 Au old Rule of Pomponius Iure naturae ae quum est neminem cum alterius detrimento injuria fieri locupletiorem ff de diversis reg juris antiqâ— lib. 206. vid. de condict indeb l 14. enriched by the spoils of another as here it often is always may be But then again on the contrary part it would also be considered That there had much need to be some 3 Omnes actiones infra certum tempus habent limitari Flet. li. 6. c. 16. Sect. 3. Tollit amensurationem dotis aliquando diuturnitas temporis in perpetuum cum omnis querela omnis actio injuriarum limitata fit infia certum tempus Bracton de Act. dotis ca. 17. Sect. 5. f. 314. end of strife The negligent is but duly punished if he will not come in in some reasonable time He knows written in the very face of the Law his perill if he do not come in to claim his own nor is it fit Justice should wait ever And if Controversies should be admitted of things whose knowledge is so farre off and out of our reach that almost all the foot-steps are worn out by the continuance of Time Our life is so brittle changes so
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
of the Common will not break in if the bank be cut whether naturally there be not like to be a return of former inundations ridven and kept out thereby is left to reasonable judgement we can but guess God onely knows This by the way to return Our next impartial Councel we crave leave to take Master Selden who seems to offer himself in his printed Declarations Learned Councel indeed and being Lay and so altogether uninteressed for benifit ever will be presumed to speak with the more indifferency and when truth and the state of things permits he comes up and fully home as can be desired He fluctuates indeed in time as long as any but settles with the more judgement at last and aske that chooseth and sifteth his Corn hath lightly better bread then he that takes what comes in his way or out of the full heap So hee that first examines and then judges Crave leave then to ask his opinion Are Tythes justly civilly due Hee hath already declared himself in publick in the hearing of all the world Take but the sixth part of what he has laid down in his History and it may be abundantly enough Or but Secure the Jurisdiction and That as has been often said is sufficient the rest will follow of it self for which Cast an eye back to what was said before Will Possession do or so much time as may create Praescription for this also he hath said and there hath been given from him enough which may not here procure trouble by tedious repetition Remember what he said was Clear Law and since Edw. 1. time a Parochial Right Universal It is not more certain that he wrote then that in way to his design of An History of What Had been he lets fall enough for Now due and the Right that is which bottome the result of his painfull disquisitions often settles upon These two are the chief and their testimony given in upon record more then publick which goes forth to All and being in Books deserves that of the Psalm Their sound is gone out into all Lands and their words unto the ends of the world Perhaps may bee read and acknowledged in the Indies Now after these it may be superfluous to adde the other that offer themselves and in no less publick way still the Press that usually speaks with a thousand voices at once and is heard to any distance the Eccho may remaine to all generations As W. C. in his Tything Table printed in the Queenes time and re-printed often since 't is in the hands of all men and rivels out the generall Subject into many particulars Doctour Sir Tho. Ridley In his view of the Law par 3. who hath laboured not unprofitably in the same argument Master Hughes of Grays Inne His Book is called The Parsons Law and Judge Dodderidge or Bracton the second for so I would compare and parallel their profound soliditie in his Compleat Parson More there are others scarce any One man knows how many and they all contribute their united and uninteressed vote and sentence hereto proving sometimes but mostly supposing a Right which is more though the two former I chiefly rely upon Ask the next man met and if he know any thing I know he must know this and will I believe give it in Co-attestation with All Nor can hee approve himselfe an English man that hath brow for brains he hath little or none knowledge either of Discourse or Experience that can upon deliberation deny it CHAP. XXXIV IT remaineth next Whether any thing hath been Done accordingly Men have thus interpreted Laws but their Sayings how many or confident or grave soever though bearded with authority alter not the Nature of Things The exhibition whereof in Deed and View is that Reall proof men most look upon in the World and more beyond the strongest Opinion or best interpretation and What has been then seen the effect or Work of these Word and Book-suppositions I answer as much as well can be supposed or imagined with assurance enough too even to the disposition and transposition of the tenth part of the wealth and Revenue of the land For among All sorts of persons that had any thing in All places There is never a Parish in the Land or Person of Cense and Possession but the experience hereof has been given yearly in His estate and submission to that power that from one man to another created Right according to received and obeyed Law It was but Ask and Have Seek and obtain expect the season when the Course of Nature brought forth things in kinde and take the tenth as it arose None did mutire contra or resist or but obey The Issue as before intimated was but Commonly either the Bounds or Certainty of the Parish If these two were well proved whereof onely could be doubt the rest came in of it self and the force of these grounds of Law as before so interpreted as now carryed the Tenth fleece the Tenth Lamb the Tenth Lock Heap or Sheaf c. all upon a Supposition All was right and this as often as the things grew Due and demanded Nor needed the Plaintiffe that his quality though he might goe under another name to cast out for any Law a Combination of Which and the whole of a sort united and deeply founded was always in his behalf 1 Now touching the discharging of tythes themselves the pleading them at the Common-law It is to be observed that they are things of Common right and doe of Right belong unto the Church And therfore though it be true that before the Councell of Laterane there were no parishes nor parish-priests that could claim them but a Man might give them to What spiritual person be would yet since parishes were erected they are due to the Parson except in certain speciall regular Cases or Vâ—car of the parish and therefore when you have a prohibition for discuarge of the validity whereof and when to take place he is there speaking You must consider it is a plea in bar against Common Right to a demand of Tythes which is a Common Right though they be in severall Courts as by a Release either in Deed or Law Hobarts Reports in Slades Case pag. 296. supposed This was put into his Libell tam de Jure communi Ecclesiastico quà m de antiqua laudabili legitiméque praescripta consuet udine jus percipiendi recipiendi habendi omnes singulas decimas tam majores quà m minores mixtas minutas infra Parochiam de N. provenientes crescentes renovantes contingentes ad Rectorem Rectoriae de N. spectat pertinet c. and this a set way as in the secular form of pleading upon Briefs which were always the same like the laws of the Medes and Persians without alteration Nor may we well suppose any errour to have crept in or been admitted or retained Here in that plea which was a ventilation or exact discussion of
banishment making every Lawyer a kinde of Priest and so far forth officiating in his Cure as he duely and reverendly gives forth the things of this Sacred Justice and Law It has place where he is counselling him not to regard Military exercises alone but to inrich his minde with noblest indowments of knowledg and piety setting for his pattern The Prince of Israel who was 1 Deut. 17. 18. 19. councelled to keep always a copy of the Holy law by him and to read therein all the dayes of his life that he might learn to fear JEHOVAH his God c. Yea 2 Haec ut audivit Princeps crecto in senem vultu sic locutus est Scio Cancellarie quòd liber Deuter. quem tu commomoras sacrae scriptura vclumen est liges quoque ceremoniae in eo consoriptae etiam sacrae sunt a domino edita per Moysen promulgata â—uare eas legere sancta contemplationts dula cedo est Sed lex ad cujus scientiam me invitas humana est ab hominibus edita tractans terrena quo licet Moyses ad Douter lecturam Reges Israel astrinxerit eum per hoc reges alios ad consimiliter faciendum in suis legibus conâ—itasse omnem offâ—git rationem eum utriusque lectura non sit eadem causa At Cancellarius Scio c. Scire igitur te volo quòd non solùm Deuter. leges sed omnes leges humanae facrae sunt quo lex sub his verbis definitur Lex est sanctio sancta jubons honesta prohibens contraria Sanctum enim esse oportet quod esse sanctum definitum est Ius etiam describi perhibetur quòd illud est ars boni aequi cujus merito quis nos Sacerdotes appellat Sacerdos enim quasi Sacra dans vel Sacra docens per etymologiam dicitur quia ut dicunt Iura leges sacrae sunt quo eas ministrantes docentes Sacerdotes appellantur A Deo etiam sunt omnes leges editae quae ab homine promulgantur Nam cum dicat Apostolus quod omnis potestas à Domino Deo est leges ab homine conditae qui ad hoc à domino recipit potestatem etam à Deo constituuntur dicente authore causarum Aristotele Quicquid facit causa secunda facit causa prima altiori nobiliori modo Quare Iosaphat c. Ex quibus erudiris quòd leges licet humanas addiscere est addiscere leges Sacras editiones Dei quo eorum studium non vacat à dulcedine consolationis Sanctae Fortesc de legibus Angl. cap. 2 3. answereth the Prince This wel concerned Him for those Laws had to him another tincture of Divine authority which to us is wiped of having none of that high qualification No not so neither replyed he as to sanctity we are not without All law unabrogated for all humane laws are to those whose they are Sacred from the definition For what is a law it self but Sanctio Sancta jubens honesta prohibens contraria which 3 Vid. Gloss lex est ad Iust 1. de Iur. nat gent sect 4. Gloss non faciendorum ad ff de segibus Senatusque lib. 1. he might borrow from the Civilian A sacred 4 Quomodo leges sanctae vid. ff de rerum divis qualitat l. 9. sect 3. sanction bidding what Good is forbidding the Contrary and that must needs have sanctity in its nature into whose definition it is wrought and embroydered And therefore the Art of administring those laws makes us Priests for what is a Priest but he that ministers in Sacred matters teaching holy things We doe so we give out sacred Justice Therefore we are Priests And all Laws are from 1 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ff de leg Senatusque L. 2. God though published by Man For whereas 2 Rom. 13. 1. the Apostle saith All Power is from God The Powers that are are ordeined by Him Law made by such derived Authority derives farther and impresses the stamp of Authority from the first Cause through All for as much as Whatsoever is the Cause of a Cause is also a Cause of the thing Caused Whence 3 2 Chron. 19. 6. God is with you in judgement So Exod. 18. 19. Do thus and God will be with thee Josaphat to his Judges Ye do Gods work Ye judge not for Man but for the Lord. So that Every Law is then Holy Every Statesman may look upon himself as a kinde of Priest every Magistrate a 4 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Rom. 13. 4 Dei enim minister est And Ministri Dei sunt ver 6. kinde of Minister of Holy things Their Study gives them such though their Trade may be unrighteousness and no word can better fit a dying Patriot then these of Eleazar 2 Mac. 6. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to be ready to die for the sacred and venerable Laws of his Country Thus then All Laws are Sacred as derived from God and backed with his authority though made by man and so Ours and so that which is of this fort in particular which occasions fit and full application of those Texts of Scripture in the just import of the words and their full vigour of sense to have Tythes brought in as thus Scripture now requires these Acts of State and Right supposed which also are and they sin against that Sacred Law yea a double sacred Law Mans and Gods in Mans or above Mans having Mans under it who do not Pay Some question hath been hitherto of the 5 Albeit we be be now free from the Law of Moses and consequently not therby bound to the payment of Tythes yet because Nature hath taught Men to Honour God with their substance and Scripture hath losâ— us an Example of that Particular proportion which for Moral Considerations hath been thought fittest by him whose wisedom could best judge Futhermore seeing that the Church of Christ hath long sithence entred into Obligation It seemeth in these days a Question altogether vain and superfluous whether Tythes be a matter of Divine Right Because howsoever at the first it might have been thought doubtfull our Case is clearly the same now with theirs unto whom St. Peter sometims spake While it was whole it was whole Thine When our Tythes might have probably seemed our Own we had Colour of liberty to use them as we saw good but having made them His whose they Are let us be warned by other ment example what it is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to wash or clip that Coin hath on it the mark of God Hookers Eccles Polit l. 5. Sect. 79. p. 429. Jus divinum whether now Any such be of force to bring in this Revenue of the Temple among us and there be that affirm as well as that deny as they finde light or darkness in the Letter of the Scripture which immediately they rely on in their apprehensions But this strife may
disgracest thy self as it is written The Name of God is blasphemed among the Gentiles thus As if any of them shall see us breaking our own Law transgress our Gods Commandments trample upon his Precepts and make no care of the revelations of his Holy Will not half so much as of an Ordinance of Parliament Will they not blaspheme traduce rail revile nay maledicere Even Curse and profane our God that has such untowardly disobedient servants Will they think him a God! or think we Think him Such if we thus misbehave our selves toward him Iam. 2 10 11. Doth not Saint James say He that breaketh the Law in One point is guilty of All and upon this account because He that saith Do not commit adultery saith also Do not Kill or Steal or Covet the image of Authority defaced is the same and doest Thou break Two and hopest to be innocent Never justifie thy self that thou swearest not if thou lyest Or thou speakest truth in Civill matters if thou blaspheme Or thou dost not kill if thou steal or covet He that defaces the image of that authority shining from God upon All the Law that procures its Reverence it is not far from his accounting any part a Common word forasmuch as the same boldness that hath removed respect from any part will by like occasion or temptation take off what is no better fastened nor can be any where He that dares venture on the Chalice needs not or will not scruple at taking the Carpet or Bible or Pulpit-cloth 'T is not a broken collection but a full and even Decalogue All are equally Gods Commands and backed with his authority ingraven and shining in the face of every one As was said Heaven and Earth may pass away but none of these shall pass It is God thou must answer not Man for neglect and transgression here Whose Law thou hast broken Not but more then Whom in Temporals thou hast injured and Wronged In the day when God shall judge the world by Jesus Christ remember then thou hast been told Both both that He that breaketh the Law in one point is guilty of All and He who wrongs Here breaks it in two in Coveting and Taking Heed next what Thy Saviour saith and this is at least Gospel-Law Matth. 5 20. Except your righteousness shall exceed saith He Yours Ours Anies that is his Disciple the righteousnesse of the Scribes and Pharisees ye shall not enter into my Kingdome of Heaven Now what was Their Righteousness They paid dues Duely Questionless they did so else they had not been Themselves that is Righteous And for this Particular by the Providence of God it is so come to pass that we have repeated double assurance and from Christs own words again what was their Righteousness This Way First in his Personating a Proud Boaster amongst them Luk. 18. 12. that He paid Tythes of all he possessed Which if He had not the supposition had been an untruth the Man made to speak nothing to the purpose Nor had he been brought in truly Commending but indeed Belying himself That hee should have done that he did not Next in that Comparative exprobration Matth. 23. 23. where we have that Exactnesse that they Paid All to the least They left none out to very Mixt Annis and Cummin which our Saviour says They Ought So it was their Righteousness to have done and yet not have left Justice and Mercy undone So that no doubt can be but they Paid they paid duly they paid of All and this was Their Righteousness and yet Christ to His Disciples unless yours shall both Equall and Exceed Theirs and This ye must not look to come within my Kingdome Nor let any one observe here Duty on their part They were bound True they were so but are we altogether Free Have we not a Rule of Righteousness in some sort as strictly binding as Theirs to make obedience duty not performance Supererogation and we as well as they are required not to give but pay What else are those Laws before alledged many and yet of force Are they not All so many rules of Doing or directing right forward in what way we must go or we go amiss and so by consequent our Conformity to them our being Ruled by them must bring home the imputation to us of Going right forward or amiss in the way of Righteousness or Unrighteousness that We may be Just or Unjust as they We have no Levitical Law perhaps indeed no Jus Divinum at least not within my circle or which I insist on though I forsake it not much less disclaim or oppose it But we have yet without that enough of our own and to binde fast enough a Rule a Law Sacred in force and binding as hath been shewed and whereto we ought to take heed as that which in some regard was parallel with Saint Peters sure word of Prophesie and is our light and rule to guide us through the darkness and uncertainty of this world the transgression whereof is also penall and with us â—infull too for every disorderly liver is likewise a Sinner to God and it Must have the imputation of Righteousness or Unrighteousness as We neglect or observe Here this Sacred National English Rule of our Doings Nought else is the ground of Property of Any property that renders theft possible or Wrong the Relative to Right This is the boundary of Fields and Vineyards cuts out to All their Lordships and Inheritances and to obey or disobey break or keep This makes us as Culpable or Just Righteous or Unrighteous as by observing or transgressing his Judiciall Law the Hebrew could have been in Israel No question but we have Law the Rule of Righteousness as binding to us as the Hebrews in their Politie we may be as Righteous as they and yet if we be not more we fall short of our High hopes for verily says Christ unless your Righteousness that are my Disciples shall exceed that parallel of the Pharisees ye shall never enter the Kingdom of God Or likest thou better another Rule of thy Saviour It hath in it as much of wisdome and equity for civill Commerce as I believe is to be found in so many words in the world again Old Tobit had given it in the Negative before Do to no other what thy self hatest Tobit 4 15. But Christ changed it to the Affirmative Matth. 7. 12. Therefore All things whatsoever ye would that Men should do unto you Luk. 6. 31. even so do ye unto them for this is both Text and Exposition Law and Prophets A most indifferent Rule equall restriction which nature suggests Reason approves Religion inforces and All Nations Perswasions and Men will I believe say Amen to the Equity of Thine own Saviour has inrolled it into the Sacred Tables of his Law too the sum of his Moral Pandects a short but full Declaration of needfull Duty and doest thou resolve to obey or refuse If
though he were Rich before But the worth of a few talents must be taken from Gods then Church which ended fearfully His Countenance changed His thoughts troubled His back crippled and His knees smote one against another And yet this but the beginning of Sorrows For All the 11 Psalm 9. 17. wicked shall once be turned certainly into Hell Heb. 6. 9. and All the people that forget God Sed meliora canamus I hope better things and things that accompany salvation though I thus speak That every Christian will be himself That every beleever will be ruled by his own Rule that every son of God will be guided by his father and give to every one his Due whether God or man as is written down in the draught of his will the tables of the Old and New Testament It hath been hitherto but mistake hath made men grumble That some tyrannous imposition hath inforced Tythes some Statute Rampant in behalf of the Clergy perhaps foisted in by themselves in the last age but now the truth is cleared up the heavens shine 't is bright as day that the whole body of the Just law has and has from all times called for them and made them due a necessary part as any of Civill righteousness Now Men I hope will then not deliberate nor dally but walk in the light while the light shineth Doing as they would be done by Giving every one his Own yea Paying not Giving for that is required of thee 1 Tim. 1. 13. if thou be Just not Bountifull I my self also says S. Paul was sometimes a Blasphemer a persecutor and injurious But I obtained mercy because and as long as I did it ignorantly and in unbelief No longer If I should have done it afterwards after the truth came clear to my soul or it shined from heaven and I would or could have closed fast mine eyes against it I might have overstaid my time and the light have been taken from me but I beleeved and converted and then the Lord that would have on all had mercy on me because I did it as I did hitherto in ignorance and unbelief Now my last appeal should be ad Populum Christianum from Severall Persons to whom hitherto to the Body of the People of this Nation High and low Rich and poor One with another Psalm 49. 2. as the Psalm speaketh and All Together for the thing concerneth All And my desire tends to this That they would in the name and fear of God take heed what they doe and not be too forward to set their hands to that they may beshrew their fingers for all days of their lives after in shaking I mean or removing one Stone more out of the building to leave the rest loose or by unsetling Levi's Parsonage house give such example or beginning to shake all the rest that No one shall for an age live secure That His will not next year fall down about his ears Remember what before of Imbarqued All in one Vessell standing All on One bough Take heed of cutting that and Beware of touching that string to any violence that holds All we have together Gentlemen and Noblemen look to your selves ye have as now things are fair inheritances God bless them to you and you to them ye live in Canaan Long may ye there live to serve God in Christ in all worldly felicity But take heed of venturing too farr in untrodden pathes that have at least shew of danger the earth seems to shake under you already Be not over-forward to the unsetling Levi's Portion in this good land the Lord your God hath given him with you which stands here upon the same foundation of Law whether of God or Man that yours and others doe For fear if you should what has but the same support may totter if not fall with His down together Be sure there is Justice in heaven and but too likely means on earth to bring it to pass that if your hands should help to conveigh fire to one Corner of the thatch It may very soon it spread and run all over the house beyond the reach of strength or power of policy and honest art to suppress the flame before it hath burned both you and yours your stately and magnificent sumptuous Edifices Your mansions are many the Buildings great and fair their Turrets high the Battlements stately and lifted up dispersed far and wide over your rich and ample possessions Long may you enjoy them to comfort But if you should rejoyce in iniquity and not in the truth furthering or permitting that spoil is of the nature would ruine your selves and Your own Take heed the stroke reach not home to you too soon leaving you justly ere long neither house nor land nor field nor inheritance And Good Christian people All whatsoever Be not Ye wilfull to your own injury Doe not stubbornly persist in a way may goe on to your inconceivable danger If your Tythingmans due be as your Own right if his Glebe be as your Freehold and his Tenth from your land as your Nine in it and the Land it self take heed how you meddle with the common support the foundation and onely stay and cement of both together If his bee stirred and yours thereby loose if you take away his and he put on for yours as why may he not if you both thereby fall a scambling thence a quarrelling and so a fighting what can follow hereon but very confusion A third may as well strive for both and then what have you gained If the fence of strong Law be not able to keep Him harmless now How should you expect that the same armour should defend you and that spoil and violence should not break in to your disturbance perhaps to lay All in Common to which the breaking of some inclosures does more then declare act and operate to make way for Let every one have his Own and that is an easie and obvious piece of Justice I say again Let every One have his Own and that 's All I contend for which should give offence or shew of offence to None but those that would have that which is Other mens That is His Own the Law makes so of which Levi having as Much as any other Tribe He must have thereby as much of Property and thereby Right and Safety and Security He should and the troubling or disturbing him cannot in equity and the nature of the Thing but doe that which if it should be prosecuted by the same Principles must needs bring about and redound consequentially to the disturbance of all Israel Justice is all I plead for Common-Justice a low and sordid Heathenish vertue not so much in Christianity as I take under it and thereby in it as it comprehends under it universally all sorts of goodness Suum cuique therefore good Englishman and Brother and this is both Common Law and common Honesty As to the Publiqne I have said nothing thereto