alledged by Spelm. de non â—emerandis Eccles Sect. 16. Jure divino To omit his own References to his Reports Be Sir Thomas Smith next a Doctour of both Laws and a principal Statesman His Description of Englands Republick passes with good credit in the last Chapter whereof he describes the Court Christian acknowledges its jurisdiction sends matter of Tythes thither as a part of the Work and if once he had them there he knew being not onely 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 what even to Mint and Cummin would become of them The Authour of the Dialogue between the Doctour and Student is 2 By Dr Cowell in his Interpret in the word Doctoâ—r said to have been Mr. St German It was wrote in Henry 8. days not toward the end and for the solidity and depth of it may passe for one of the very excellent and singularly jndicious pieces of that most excellent Learning Now He admits Tythes as consequentially due upon that account of 3 Dial. 1. cha 2. so 11. And in the new additions to that Book printed 1531. He tells us In the Kings Bench Common pâ—ace they will suffer no issue to be joyned specially betwixt person and person whereby he Right of the Tythes may be tried howbeit that in the Exchequer sometimes they have done otherwise Addit 5 fol. 14. Ecclesiastical Jurisdiction and this reducibe to the second ground of Law received here which is the Law of God and though the Student cannot afterwards well away with the Doctours Jure divino yet by Ours Positive and here he makes no question For by the Law of Reason one of the Grounds he had made of the Law of England before he would have somewhat for the Labourer is worthy of his hire and then by the Law of the Church This I question not how reasonably but thus 't was settled and the Constitution prevailed And he gives reason for all For 4 Dial. 2. chap. 55. fol. 165. there is no cause he sayes why the People of the new Law ought to pay lesse to the Ministers of the new Law then the People of the old Testament gave to the Ministers of the old Testament for the People of the new Law be bound to greater things then the People of the old Law were as it appeareth Matth. 5 20. And the sacrifice of the old Law is not so honourable as the sacrifice of the new Law is for the sacrifice of the old Law was onely the figure and the sacrifice of the new Law is the thing that was figured That was the shadow this is the truth And therefore the Church upon that reasonable consideration ordained that the tenth part should be paid for the sustenance of the Ministers in the new Law as it was for the sustenance of the Ministers in the old Law So howsoever it is a Due and he is there discussing the equity of the Statute of Sylva caedua which although he defend yet no more and in that enough as before was said speaking of it For if there were Assertion that a Prohibition should take place in that particular Case there was implication in others it should not a by-confirmation here and there and in neither can be doubt of what I desire Ascend at next step up as high as Fleta and Bracton for we are now among particular fallible men the Credit of whose Vote is not to be compared with the Publick and therefore we hasten accordingly yet so as we know what sway these bear in Judicature and that they over-rule the very Rulers and Judges Ego verò illos veneror tantis nominibus semper assurgo as I believe after Sir Edward Cook most of the chief Justices have been ready to say and I do unfeinedly Let Fleta be first and He 1 Lib. 2. ca. 60. Sect 27 c. p. 1 31. speaking of Contracts and Obligations by them and an Action of Debt justly grounded upon both gives the Tryall of Tythes in that Court will surely give Them Ex hujusmodi autem obligationibus promissionibus stipulationibus oritur in curia Regis quaedam actio quae dicitur Placitum ex debito eo quod spectat ad Coronam Regis saith he But except Nisi sint debita à testamento vel matrimonio suborta quae quidem in foro Ecclesiastico habent terminari sicuti omnia quae merè sunt spiritualia as Penance for sin though pecuniary So for Church Reparations c. 29. Item si Persona that is that living Man who as one seen and known stands forth and acts for the Church which is alwayes in it self a dead Corporation a Suppositum or Non ens without any real subsistence and must therefore have a seen known living Executour whose name may be used and being cloathed with Circumstances under being and existence In that name and under that Personality may do sundry things which otherwise conveniently could not As give or take gain or lose do or suffer the Churches Man we may stile him Rector is another thing 2 Laicus igitur praesentat ad Ecclesiam vacantem ut praesentatas Ecclesiam Regat Episcopus eam dat sc praesentatum admiâ—tit ad Regimen instâ—tuit Bracton l. 2. c. 23. f. 53. implying duty and grounded upon supposition of Power Now if that Person or Churches Man petat à Parochianis suis debitas decimas consuetas in the very words of the Statute of Circumspectè agatis vel si Rector agat contra Rectorem de decimis majoribuâ— vel minoribus dummodo non petatur quarta pars valoris alicujus Ecclesiae vel decimarum for then if also the Churches be of severall Patronage not otherwise the Indicavit takes place and the Right of Tythes must be tried in that of the Advouson between the Patrons whose Lay interesse is in question And of these all Sect. 32. Haec autem praecipuè in foro Ecclesiastico habent terminari non obstante Regia prohibitione It seems the nature of them was such that if they were drawn aside they could not rest there but must return to their proper chanell and with other things of the same nature have properly and together their discussion and determination in the Court of Religion And remember this all along That as the Philosopher sayes that which gives the Cause sufficient gives the Effect That which gives the means to compasse such an end may be interpreted to allow and give virtually that end will be so wrought in and brought about by those means Even so mediately that which gives the Jurisdiction gives the work and effect thereof That which gives the Triall gives that which will come of the Triall be it what it will virtually and in the sufficient and necessarily producing Cause Which is also of use in that which follows from the same Fleta in his Citation of the Statute of Westm 2. cap. 5. Where approving the Clause before of the
ab antiquis regibus mâ—ximè ab antecessore suo Aethelredo latas sub interminatione regiae mulctae perpetuis tempoâ—ibus observari praecipit Malâ—â—esbur de Gest Reg. lib. 2. cap. 11. ancient laws to be revised especially those of his Predecessor Ethelred amongst which were for tythes as may be remembred from but now and Thirdly 6 Quotannis quisque Deo jura justasque debitiones ritè persolvâ—to Arationis quidem eleemosynam ad decimum quintam á Paschate diem pendito foetuum decimas ad Pentecosten solvito rerrae denique fructâ—â—m decimas reddito ad festâ—â— omnium sanctorum celebre Or if not as is said Vid L. Eccl. Canut K 8. Spelm. p 544 c. 15. p. 563. De decimis ad Ecclesiam Thani pertinentibus vid. c. 1 â— p. 545. by more assurance and past all conjecture he revived awakened that notable past law of K. 1 Whereof befo e. pag. 84. Edgar made up of 3 parts twisted together for mutual strength Rule Punishment order for Execution willing that men should pay if they did not they should lose 9 of 10. And who should see things done but they who by their work were to be rewarded for their labour Which was much and as much as could be expected in tender regard to what of that little account is findes so much place and in very fast and safe accordance to what had been before Indeed it should be so States should be constant Not uncertainly whiffling up in loose and various decrees but be gravely stayed and fixed to their received orders Not giving the world occasion to think their Laws are Humane Ordinances by this That they change like men but partaking in stedfastness with him from whom they are resemble Him in Immutability who is the Same for Ever Justice and Truth are never but the same Why should then their Rules vary The same thing cannot be right and wrong at times why should the Lesbian rule warp hither and thither as 't were to say it is It may make the jealous world suspect ere long that Lawes are nothing else but witty devices to serve the contrivers own turn if like the sayles of a ship they may be shifted and turned hither and thither upon occasion and cause them wish perhaps rather they had no ordinance at all then what may be planted against their own safety finding suspicion in the sanctuary of their refuge and doubting what was given for their wealth may prove an occasion of their falling The firmness of a publick decree could never have found a fitter measure then that of the Laws of the Medes and Persians which alter not Dan. 6. 8 12 15. whereto the world owes much of its happiness nor can we ever hope for any more certainty of any thing we possess and call good on earth then there is of Justice and the rule and measure thereof is the constant Law This the wise and victorious Dane knew perhaps by cherishing such axiomes and perswasions at home victorious which made him strike in as much as might be with the past and established Laws to shake the Kingdom the less by a Couqnest and in their stability to provide for much of the wholes and his own As indeed this course often leaves a Kingdom safe with change of the head and Government quiet upon any change of Governours For the person at top is never so material as the diffused and coincorporate Law throughout the body politick which settles down and is conveyed as the branching Nerves into every the remotest member of the re-publike and which if it suffer trouble by change many a paralytical or spasmatical fit cannot but must needs go therewith disordering the whole and twinging the very heart if these are forced out of the way or suffer any considerable distention laxation mutation obstruction trouble or disturbance whatsoever which also the next Norman Conquerour found or was taught for the Nation that was in part willing or were forced to receive him would never yet give consent that their laws the sinews of the State should be touched which put him upon this hard Dilemma either to imbrace These or be rejected by Those to let Them alone or Himself never should have been quiet CHAP. XVI OUR next step the last on that side the Conquest is to Edward surnamed the Confessour That blessed man was blest indeed to be the Authour or instrument of much good to this indeared Nation He first obtayned help of God to remove and dispel that coacervation of tough humours about the throat Strumae the Physitian calls them and since from this accident of their cure The Kings Evil And which was the greater miracle obtained also the like wonder working power to be left inheritable by all his successors He raised that stately and magnificent pile at Westminster a Monument not onely of his own piety but also a repository of the Monuments of Nobles and Kings ever since who quietly sleep in that dormitory he reedified and consecrated to this use from Pagan superstition and under his roof have found ever since their peaceable safe and everlasting habitations He was so zealous and succesful for Justice that when he was gone the most people desired was but right his way And as Ziscaes Drum he being dead charmed the enemy to obedience or flight so the Concession of his Laws stilled their mutinyes often whence at their importunity too they have been continued in the Coronation oath ever since Lastly his prudence discovered or acted it self chiefly in this that treading in the steps of K. Knout before he dreaded exceedingly all perillous innovations and whatever wit or passion might suggest to the contrary knew it was safest always hearkning to reason and going in the way had been trodden and therefore adhered to this rule by choice that whatever others did He would only be wise in the way of his Ancestors To this purpose he caused to be searched and by his authority reinforced the good old Laws of the Land which whatsoever forward men may deem to the contrary is still likeliest to be the readiest way to mens great desires of Happiness Wealth and Peace For if Justice be the preserver of order that the parent of peace whence wealth riches follow to disturb the Law the foundation and rule of Justice can be no less then to trouble the pure fountain whence those precious streams must issue whereas to keep that fast is to hold the foundation sure whereon all the rest either are or may be built He then began not but continued and confirmed this following order for tythes CAP. 8. De decimis ecclesiae reddendis de ovibus et porcellis De omni annona decima garba Deo debita est et ideo reddenda Of all Corn the Tenth sheafe is due to God and so to be paid c. But the English hereof was given before pag. 63. Et siquis gregem equarum habuerit pullum
settle a thing by Law to have its title thus written by the Founder Himself in cleare and evident Characters even in the infancy and the very face of the Common Law And here then before we go any farther let us a little stand stil and veiw the way we have gone what we have gained as 't were in another world before beyond the Norman turn Sure a Right a firme Right a legal undoubted publike Civil Right as good as any had as good as any could have what grant and assurance could make over and that publike and strongest What is that we own any thing by but agreement publike convention 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as 1 F. de Legibus Senatu que L. Nam Demosthenes Marcian the Civillian spake from Demosthenes the Orator which is that alone parts intercommoners and is the bottome every ones Own rests upon Now and this stands as full under as powerfully and vigorously supports these thus apportioned Rights as any other separate parcels whatsoever we have made it appear so in those days I look upon the Common Law in a twofold state of growth and perfection 1. As an Embrio preparing to some thing in rude and imperfect pieces 2. As a child like to be a man formed to a being and of some present power and abilities In each of which we could expect no more to appear for tythes then does for whether we regard those native and as it were connatural genuine Laws of our Country as having distinct force or as after amassed together into one community the Several parts made after into the Common Law or the Common Law made out of those several parts still in All tythes had a clear full mention and grant And this to the Baptisme of John from the beginning of Any Baptisme in this Nation We have donation wee have confirmation wee have Law we have penalty we have Thou shalt pay or thou shalt be punished if thou do not pay King Etheldreds Law King Aelfwolds law King Offaes Law King Aethelwolphs Law and also the noble Alureds the most glorious Founder of our state and government King Edmonds Law King Ethelstanes Law K. Edgars Knouts the Confessors and whose not beside the Parliament at Aenham other Parliaments Princes Peers People Lords Synods Senates What not and all from as undoubted monuments of truth and assurance as any the times do affoord He that will doubt these may as well doubt any thing whether those men were whether these Princes raigned whether there were an Heptarchy and the wrangling wasting consuming parts did at last coalescere into a mutually preserving Monarchy We have but credit of story and record for these and so for them and indeed for one part as well as another CHAP. XVII COME we next on this side the bloody battel and Sanguelac conveys us over to no less assurance or clearness of strength on this side that strangly successful invasion Non-revocation is first assured for who ever heard of such a prevailing vote as this since the Conquerors dayes quickned to life and power that no tythes should be paid Then for positive confirmations we have many Ever and anon some new sinews of strength having been added to those were before and repeated assurances of them comming in so thick and plentifully that they had need for their multitude to be sorted into parcels to avoid confusion 1. And whereas of K. Edwards Laws Tythes were a part as but now our first search would be therefore what notice and allowance is of Them and Tythes in Them 2. Next when and how the Consistory was erected with its lawful powers the proper scaen where these dues had motion and translation both as to stating their right and helping their Recovery 3. What were the Collateral impressions of state in this interval chiefly since the beginning of the printed statutes as in Magna Charta Articuli Cleri Circumspectè agatis c. to the Petition of Right 4. What is else abroad of Private stamp but Publike allowance as among the great Lawyers Cooke Fleta Bracton S. German Natura Brevium Book of Entrys c. On each of which heads is like to be found at least something and all hoped will be abundantly enough In any whereof yet we shall not so much tie our selves to follow our method as our business rather chusing to let our matter lead us then we forcing it and always esteeming our method such a line of our own making as that the compass thereof we may at any time without offence upon occasion transgresse First then to King Edwards Laws renewed repeated confirmed and sworn as they were a good part of the accompt that is of those are very ancient being spent in the mention of them and some wonder it is to see and consider for some Ages how peoples hearts were not so much bent towards as set upon and wedded to them Fickle men that use to love and hate in a breath with no more constancy then the winde blowes from such a set point of the Compasse Now for this and Then for that Yet such was their Immutable and Immortal love to their Avitae Consuetudines as they called them that they would not admit of any divorce from them the sword of a Conquerour could not terrifie from their embraces and any restraint for a time did but quicken their appetite awaken inrage their thirst to call for them so much the more earnestly after indeed undeniably It was harder to conquer These then the whole Nation besides The peoples hearts were soon quieted or subdued by one great Battail and a few other But their affection to these was such that ever and anon they were up in bloudy Insurrections They would not be denyed their Laws upon peril of their lives and still whatsoever bonds of agreement were made none would hold whatsoever peace was agreed on none would last and be firm unless These King Edwards Laws were the soder and braces as it were to keep all from falling back again to factions and fractions So in K. Williams time so in Hen. 1. Hen. 2. So in K. Johns so in others till they were planted in the Coronation Oath and there I believe lately they were in the last that was taken See of K. William first whose Laws bear this title The 1 Leges boni Regis Edovardi quas Gulielmus Bastardus postea confirmavit Laws of good K. Edward which William the Bastard afterward confirmed 2 Post acquisitionem Angliae praefatus Rex Anglie Gulielmus quarto anno regni sui Consilio Baronum suorum fecit summoniri per universos Angliae Consulatus Anglos nob les sapientes lege sua eruditos ut eorum leges jura consuetudines audiret Electi igitur de singulis totius patriae Comâ—tatibus viri duodecim jurejurando eoram Rege primùm confirmaverunt ut quoad possent recto tramite incedentes nec ad dextram
the Church have all her Rights that is Tythes with others intire and all her Franchises that is Jurisdiction Decimal as for other things to bring them in Inviolable no less then which could be meant by any likely construction Or otherwise Thus and the strength of this title may here have received two ways augmentation 1. As Tythes were a Right and so warranted and intended to remain such 2. As they came within the compass of Ecclesiasticall Jurisdiction which if they were given before and any Law had assured them as many had doubtless This was then here allowed to bring them in And so were it personall or praediall lamb or wooll sheaf or heap must not now then have been withholden but were due and must be paid yea by the great Charter yea while that Charter was in force could not be denyed for that herein were confirmed to the Church all her Rights Tythes intire All her Liberties Jurisdiction Decimal inviolable and Wrong must have been to deprive her of those Rights of these Tythes of this Franchise of that Jurisdiction Or otherwise lastly Thus Let but the Jurisdiction that Liberty be supposed to have remained and this would bring in all the rest For let the Church but have been heard to speak out in that which some accounted then doubtless as things were in a qualified sense the voice of God which was the voice of the Law and this could have spoken out nothing but roundly and home for Tythes For they were Due then Due and so Due Let that dead letter be then but thus have been quickned by lively sentence and the Law be heard speak out according to truth and righteousness and the voice could be nothing else but for desired Justice Truth and Them Of what estimation this Charter yet is and duly ought to be with all the good people of England much need not be said Magna fuit quondam magnae reverentia Chartae as one said It used to be looked upon with no other but an eye of reverence It cost the subject both wealth and treasure and blows and bloud before it could be obtained And after at the rate of the lives of thousands and by the prudent and successfull intercession of some Church-Ministers who perswaded and prevailed with the King to pass it as well as any other it was granted it had the most 1 The Archbishop Bishops and the rest of the Prelates pontifically apparelled pronounced that curse with tapers burning which when they had thrown away upon the pavement where they lay extinguished and smoaking the King having laid his hand on his breast all the while sware to keep all Liberties upon pain of that execratory sentence As he was a Man a Christian a Knight and a King anointed and crowned Speed Hist li. 9. c. 9. sect 82. What the curse was who was present against whom thundred that should either break it or bring in another or observe it being brought with the signing and sealing may be seen in the old Edition of the statutes printed 1543. at the end of Hen. 3. and in Flat lib. 2. cap. 42. pa. 93. solemn present confirmation that it now appears any publick Instrument of this state ever had It has had 2 The Lord Cooke has computed to thirty two in the Proeme to Iust 2 I beleeve more sc twice in Hen. the thirds time that is Anno 9. at Westminster and Anno 52. at Marleborough cap. 5. Also 25 Edw 1. cap. 11. 28 Edw. 1. cap. 1. 1 Edw. 3 cap. 1. 2 3 Edw. 3 cap. 1. 4 Edw. 3 cap. 1. Memorand And beside these ratifications of the Charters and thereby the Churches Râ—ghts and Liberties in them Tythes in the way shown with the rest There were many distinct Ratifications in severall either Chapters or Clauses besides of the same Churches Rights and Liberties As in the Statute for the Clergy in 27 Edw. 3. chap. 1. in 50 Edw 3. chap. 1. 1 Rich 2. 1. 2 Rich 2. 1. 3 Ri. 2. 1. 5 Rich. 2. 1. c. more then 30 other confirmations in Parliament since For for divers 3 Sc. in Edw. 1. time Edw. 3. Rich. 2. Hen 4. till about the end of Hen 5. Where it occurs often Kings Raigns after successively till by repetition that reverence before spoken of was bred and rooted in all mens hearts toward it one of the first things still done in that most honourable meeting was to confirm This and the Charter of the Forest with no less regard of care and love then in Councels and Synods had been wont to be shewed to the doctrine of Unity and Trinity in a Deity by keeping the belief thereof in faith fresh memory by some of the first Articles In present severall draughts were 4 Cook Vbi Supra pa. 4. taken forth and the exemplifications sent under the Great Seal to the great men of the Realm one of which yet is or lately was at Lambeth and 5 25 Edw. 1. c. 1 after renewed under the same Signature again as well to the Justices of the Forest as to the Sheriffs and other publik Officers and to all the Cities of the Land with Writs to have them published and order to 1 Ib. cap. 3. every Cathedral to read them twice every year to the people And not onely their Effata or most reverenced contents equalled by Parliament to the Oracles of the Common Law But whereas Judicia are Iuris dicta and should binde if any thing yet all sentences given in Court 2 Ib. cap. 2. and M. Charta ca. ult Quae contra jus fiunt debent utique pro infect is haberi Reg. Iur. Canon 64. contrary hereto are declared null and of no force and that by sentence of Parliament as soon as they are given In present all were Excommunicate that were infringers therof even with severe and bitter devotion all the 3 Authoritate Dei Patris Omnipotentis Filii Sp. Sanct c. Flet Vbi sup powers that men on earth could devise or implore from Heaven being used to procure and work terrour And for the future it was appointed 4 And that all Archbishops and Bishops shall pronounce the sentence of Excommunication against all those that by word deed or councell do contrary to the foresaid Charters or that in any point break or undo them And that the said curses be twice a year denounced and published by the Prelates as aforesaid 25 Edw. 1. cap. 4. With another curse at the end to bind things as fast as might be and Excommunication announced against those that should 〈◊〉 the seven Articles of that Concession of which that was the fourth In the Name of the Father the Son and the Holy Ghost c. in the said old Edition of 1543. this Excommunication should be renewed twice a year in every Cathedral and 5 Artic. Super Chart cap. 1 28 Edw. 1. Proclamation twice as often as that made by the Sheriffe
change their English mindes in a contrary way to the new-instructed 1 Acts 28. 6. Islanders of Melita settling for truth and no longer for errour Father forgive them I doubt they have not yet known what they doe Hence ceasing their clamour against their neighbours as those would have no wrong done to themselves and accounting it a most unreasonable partiality not to be owned by those that are in any degree among the lowest sort of Honest men to pick out that which is for their 2 These be those excellent Laws contained in this great Charter and digested into 38 Chapters which tend to the honour of God the safety of the Kings conscience the advancement of the Church and amendment of the Kingdome granted and allowed to All the subjects of the Realm Co. Inst 2. pa. 1. turn in a publick evidence and throw away the rest or make that they have got of power to disanul it Mr. Petitioner whosoever thou be I name None but mean All and in love and friendliness bespeak petition Thee A. B. C. D. E. F. G. H. or whosoever thou be that lovest the Charter the Petition of Right or Right it self hearken And if thou be a Christian and English man be perswaded hereafter to proceed upon more equall terms and from a better information of judgement cease to pervert the right words of the Law Whatever thou hast done heretofore in the days of thine ignorance now taking no other course but what is justifiable by the rules of common Honesty Could I but hear you once resolve that every man should have his Own and Law should be the rule of that your own chosen Instruments should be the evidences and not any just mans plea shut out of the Court be it what or of or for whomsoever I would not then doubt to have gained of your honesty and simplicity a strong patronage of that righteous cause now in ignorance and by mistake ye go about to suppress and that ye would appear valiant yea suffering Champions for that equity and right ye now seem resolved to take pains if not to suffer rather then permit any longer those that have right to enjoy Let but a love to truth and constancy to your own principles be with you and I have enough I petition I ask no more Nor do I altogether despair As great changes have been in the world and faces about from West to East quite contrary to what was once persecuted or prosecuted in ignorance The two Theeves shamed not to confess the truth at last I equall you not in injustice or meaning wrong but God grant you and I may equal them both in Turning from out our evil ways passing from death to life repenting our hidden sins and converting from darkness to light from the power of Satan unto God Martha loved much after who before had done that needed much forgiveness Matthew the cheating Publican turned upon admonition a Disciple and Apostle And is not Saul among the Prophets Paul among the Preachers Good men and true Remember chiefly that last example Wonder but Believe it was even so Inquisitour Saul is turned a zealous Professour and he that was a busie Persecutor now as active an Evangelist and Professour When Christ who is the true light shined to his soul with awfull beams he fell down and recanted and repented his 1 I verily Thought this with myself that I Ought to do many things contrary to the Name of Iesus of Nazareth which I also did at Hierusalem c. Acts 26 9 zealous ignorance and though he had received Commission Acts 9. 2. from the highest then of Priests and Powers yet God caused him to revoke all and we have 2 Gal. 1 23. heard say as the Jews of him truly that He which once persecuted in times past now preacheth the faith which once he destroyed for which men glorified God in him Why should the like be despaired of you of whom I must go against mine own both hope and full perswasion if I should say otherwise then that I believe ye have profited thus far That ye love the truth Ye mean well ye will why will you not be fast men and true to those great names of Justice Equity and Righteousness as they shall be revealed to you not to your own opinions frowardly persisted in how plausible or profitable soever and as new and better light shall shine not be in love with former darkness Be perswaded ye may have erred The Church has right a Right of Tythes a Civil Right a Charter Right and will you yet go against your own principles and deny other men that right your selves think fit almost to resolve to die for Will ye not grant what in your own cases ye ask and refuse to give to others what ye expect to receive your selves shall they not have what ye will not be denyed What Equity Reason or Conscience were this Be valiants be wise be just and constant I crave no more Or if ye ye will not striving to do to others as you would your selves should be done unto How dwelleth the love or law of Christ in you How can you expect that God who is a God of Wisdome Justice and Truth should ever more shine with the least ray of his favour upon any of your enterprises This Apostrophe was needful God lay it to your hearts Remember there is a day appointed when God shall judge the world by Jesus Christ and then if you should appear to have wronged his Messengers despised his Prophets or driven on any close unjust design with success of impoverishing and making a prey of their worldly weakness whom God hath intrusted with your souls How would you answer this worst of wrongs What put up in excuse of so aggravated injuries Or what could you think to say to such an imputation Alledged by his justice Inforced by your adversary Assured by the things Recorded in his and your memories Attended with the furies of another world for compleat revenge and that of the worst of crimes hath the least of excuse the most of shame and of all you can readily think of the weakest and lowest hopes of mercy Especially sith now the light of truth hath shined into your souls by better information at least shined upon your souls by offer of its bright and piercing beams ye May have received the truth which truth would set you free from errours Or if no more yet it hath been laid before you or you have been told but where it is that ye may seek for it which will render you far toward Without excuse CHAP. XXII AND thus much of for and from the most known Head of all our Laws the great Charter whereof the more because it deserves more Proceeding next whereto is a Concession of about the end of Hen. 3. confirming the Jurisdiction and by consequent the things thereunder in a Parliament Ordinance called Regia Prohibitio I first met with it
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
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
populi Romani Civitatum item liberis hominibus ff lib. 41. tit 3. L. 9. agreeable to Instit 2. tit 6. Sect. 1. Sacred or Publick or for Lay-men as 7 Pa. 268. in Margine before to take up Tythes but where any could run in common affairs the Stage was but sixty years of length or fifty or forty Sometimes but twenty or ten or two And he that came not in within this space of time served a Prohibition upon himself He might not though he would at any time ever after Now then for application of this generall doctrine and How can This be Then but All and throughout a firm and strong argument for that I contend for Are these things in the Tables of our sacred Law And Does Time so much of it self Alone destroying one mans right and setting up anothers And shall it be allowed to do nothing alike in a case reflecting on God and Religion if the case be the same And proved sc that for so long time the possession whereof enough before hath been continued and lengthened here as may make out that is reasonably called Prescription Doubtless the Law is still the Same and that good in one mans case it ought to be so that Was in Anothers and Where 1 Vbi eadem est ratio ibi ideÌ„ jus Cook Instit 1 fol. 56. It is a maxim in the Law of England that All casâ—s likâ— unto other cases shall be judged after the same Law as other case she Doct. Stud. Dial. 2 c 4. the Reason is the same It ought to be for Right knows no Persons or Things and prescription or continuance of time should bee reasonably interpreted to doe as much For the Church as Custome or the same continuance does and may Against it It remaineth therefore that this onely thing be inquired into Whether such a Right hath been in the Church and Time out of minde Sixty years or other due length or space that hath used to protect and keep safe the present possessour by exception to any intended ejectment which if the whole doctrine before is of use by all its strength to create Right and secure continuance Here The duly and truly prescribing tenant cannot be outed And this is as evident as Story Record Books Writings or other Memorials of any sort that give account of past times can evidence or make good unto Us. For Ask the oldest man living What is his knowledge Ask him farther Whether he ever heard his Father say or that his great Grandfather should tell Him that in any of theirs or the next Ages before Tenths were not issuable and ex jure demandable to the Church out of All Lands Impannel a Jury of twice twelve times twenty of the ablest of that County and the next and put them upon the question Whether they doe not know and believe this Custome to be and have been Or lastly imitate the Conquerour and send for twelve men out of every Shire legibus patriae optimè institutos and sworn as He did to Them Vt quoad possint recto tramite nec ad dextram nec ad sinistram divertentes legum suarum sancita patefaciant nihil praetermittentes nil addentes nil praevaricando mutantes and Put to them What are their avitae Consuetudines and whether this be not one Ex omni annona decima garba Deo debita est ideo reddenda and so for the tenth Colt Lamb Fliece Fish c And see what they will say Go to the Lawyer and let him give his Councel from his Books Reports Statutes Laws or Charters c. Let him turn them as upon double-feed diligence and say whether it be not obvious in his Rolls Records Customes Cases Books of Entries Natura Brevium Laws Ordinances c. still a supposition and glance enough through all Ages to prove the â—ame 'T is a question of time let him give instance to the contrary in This or That a former or later Any Age or Kings Raign Deal but within the compass of things known and Christ worshipped and I dare trust to his ingenuity for an answer punctuall home enough and agreeable to truth In Hen. 8. time Hen. 7. Rich. 3. Edw. 5. and 4. and so likâ— the â—obster back back to darkness and almost bare names of Kings and Government and has he not still as evident mention by reflection and as of things that had their proper scene of action and agitation elsewhere in another room of these things in his temporall affairs as any I would but the whole Issue were-made up into a Demurrer of this expectation for satisfaction Alone There is so much ingenuity and presumed honesty comes along with that learned Gown assured that all the sons of Phoebus Quêis meliore luto finxit praecordia Titan or sacred Ministers of Jesus Christ would expect doubtless no better sentence of Umpirage either for the whole or this part of their right then what his knowledge could his readiness would his justice must and ought and his conscience nor wills nor dares nor can but give in according to his evidence I durst rely upon whom I never tryed Wayward men may calumniate and wilful men mistake and weak men suspect or revile what they do not perhaps cannot understand But there is with that sort of men the sworn Servants of Justice and as they have been styled 1 Fortesâ— de Laudâ—bus leg Angl. cap 8. Apprentices of the Law the Quintessence of sound reason immoveable honesty profound judgment and vowed integrity a love of the truth and painfully acquired knowledge of what it is that I doubt not but all just and honest men would have cause to go away from them satisfied and rest in their determinations as of Lovers of Truth and Oracles of Sincerity Take we one for all the rest Mâ— Selden in hiâ— Hist of of Tythes and not to be â—et behinde any of the rest who wrote purposely near half a prescription space of years since upon this argument even most learnedly Put to him whether or no there have not been time enough to make a prescription and a prescription and twice double as much more since Tythes were setled there may be errour in my form of expression but take the thing 1 Hoc unum petens ut non verborum Elegantiam sed vim rerum expendendam putes Amb. Epist 12. meant and if he doe not grant enough to this purpose and More let Mee have said Nothing He more then pretends to sift things to the utmost and with Curious Diligence and watchfull industry to dig down to the root of the ancient constitution of things and so give the face of them as they have been from the beginning without any fucus or deceitfull gloss and though he rove and fluctuate as long as any yet he stayes soon enough to have somewhat to spare and yet prescribe over and over and over From his eight Chapter of Laws little can be had
encouragements Honoured All with acceptance of a Dedication somewhat of Divine Right Should have been added and annexed by another Pen and in me it lay not that it was hindered and came not forth None of that which is 't is hoped can be offenâ—ive to any to whom Justice Truth and Law create not a scandall While our Records and Those Laws are preserved to what other end could I think them kept and declared for but that they might when occasion is be produced and alledged Nor can I prejudge any bearing the Name of a Christian of so vicious a tenderness as that the evidence they give to Truth and Righteousness any where or here can offer him any the least occasion of displeasure or dislike For those are interessed deeply for the profit especeially the Reverend and Learned my Fathers and Brethren of most Sacred and Divine Profession of Them have onely to crave I must and ought exceeding Pardon Psal 135. 2. Vos qui statis in domo Jehovae in atriis domus Dei nostri that I have so weakly â—amely and in many regards insufficiently performed by bold attempt of single solitary industry what might have well required the best of Their Conjoyned furtherance Humbly acknowledging that a Work of this Difficulty in it self and high Concernment unto Truth and Them might fittingly have awaited the Conjunction of many heads and been more happy by falling into the hands of many co-operating Advancers who might have both made out performance somwhat answerable to desert and added also the Countenance of Authority which the privacy of my Condition or unequal abilities Could neither expect or promise my self or Others But then withall when I considered and They shall please to reflect on The darkness and untroddenness of the way wherein I have been forced to go mostly Alone and looking downward in Their onely Service The number and distance of the flowers from which this honey as little of it as it is must needs have been gathered without any help The Labour of the Work The difficulty of the whole And so little encouragement for any part that in such stormy Times when mens greedy affections are also checked their lusts crossed and their tender ruptions touched to danger of offence Impunity is towards the highest of Hopes They will Then 't is hoped if not for any desert abroad at least from the Innate Candour and Ingenuity of which the World acknowledges such store within their own bosomes Vouchsafe it this humbly craved and much desired and needed Pardon or perhaps yet a little farther and more favourably accept this pledge of Love and Evidence of Good will none can but see was meant in way to the glory of God and establishing his Book to end as to here below Cheifly for his Own is inconsiderable in Their Profit Advantage and Benefit It is left to their better skill and united endeavours if they may be had to smooth up by degrees unto the highest Requisite of all necessary perfection what I have I hope not altogether unluckily begun for this is but the drawing of my Ruder Coal and to add the Exactness of Art Proportion of Lineaments Symmetry of parts Life of Colours and all other Imbellishments of Ornament Circumstance or Substance very needfull in so very needfull a Work to the degree of How What and As they Please In the great variety that is in the World and some opposition of Judgements it remaineth hard if not impossible to please All While One desireth This Another That One is for Antiquity Another for Novelty Such Laws please Some The Contrary Others and Some like None at all Stubbornness making it out to a Prodigality of life often in Defence of bare Opinion In which Case what should now the Speaker Do or say What but even sit down in the Conscience of his Integrity Acquiesce in that he meant to offer His Sacrifice of Service to None but God and Truth and if a few Sober and Grave either Approve or Pardon to Account This or but even the Last a full accomplishment of Desire Taking assurance it is very unlikely to meet with any thing but Contradiction from Those Many who Agree chiefly to Contradict and cross each other When All Men are of a Minde then may it be hoped One Thing will please All But This not like till the same Gale of Winde fits severall mens Voyages who have their distinct and opposite ways to All points of the Compass Now sit down and Consider Judge Differ and Be Charitable O Christian Remember much That thy Great Name of a CHRISTIAN implying nothing More then To Be to Be nothing more then Good and Vertuous to be Good and Vertuous scarce in Any thing So Much as those necessary accomplishments of a Christian Ephes 4. 2 3. in Meekness Mercy Tender-heartedness Grace Peace and Love endeavouring to keep the Vnity of the Spirit in that Bond of Peace as the Apostle counsels 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. with all Humbleness Lowliness Gentleness and Long-suffering Bearing and Forbearing As knowing that Rage is Brutish Col. 3. 12 13. Cruelty Inhumane Fierceness Heathenish and Thou art thy Thy Self Nothing more then in Readiness to Give and Forgive Phil. 4. 7. Him that offends even Purposely till Seven times and Seventy times Seven So Put on Therefore as the Elect of God Holy and beloved of Him Bowels of Mercies Kindness Humbleness of Minde Meekness Long-suffering Forbearing and Forgiving even as God for Christ his sake forgave both Us And then the Peace of God 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that passeth all Thought shall no doubt dwell in thy Heart by Jesus Christ our Lord. Amen Imprimatur Febr. 4. 1649. JOHN DOVVNAM FINIS