Epistola Medio-Saxonica, OR, Middlesex first Letter to his Excellency, The Lord General Cromwell: Together with their Petition concerning Tithes and Copy-holds of Inheritance, presented to the Supreme Autho­rity, The Parliament of ENGLAND. Wherein the tortious and illegal Usurpation of Tithes, con­trary to Magna Charta, is discovered, the blemished dignity of Copy-hol­ders revived, and how Lords of Manors have formerly incroached upon their liberties, by imposing Arbitrary Fines, and multiplying of Heriots. Whereunto is annexed two Additional Cases con­cerning the unreasonable exactions of Fines and Heriots, contrary to Law, in these latter times. Published for the satisfaction and vindication of the people of England, from all Decimal Oppression and Lordly Tyranny. The Second Edition; To which is added a Reply, Styl'd, Tithes totally routed by Magna Charta.

LONDON, Printed by F. L. for William Larnar, at the Black­more, near Fleet-Bridge, 1653.

In Decimas & serva Praedia, Carmen Hexastichon.

SI mos Angliacus, nec sacra oracula suadent,
Cur solvis Decimas, Anglia lusa, tuas?
Si felix rediit seclum, victique Tyranni,
Cur servile feres, Anglia maesta, jugum?
Sic pia vota tulit Miles, totusque Senatus,
Reddere cur differs, Anglia, vota Deo?

Vpon Tithes and Copy-holds, an Hexastick Verse.

IF English Custome, nor Gods Words perswade,
Why yet are Tithes, deceived England, paid?
If th'age of Gold be come, and Tyrants broke,
Why dost thou, England, bear the servile Yoke?
If th' Army, and the Senate, Vows have made,
Why are they by them, England, thus delay'd?

Middlesex first Letter to his Excellency.

May it please your Excellency.

THe sweet odour of your name, and unparallel'd af­fection towards goodnesse, and good people, hath imboldned us, in the behalf, and at the intreaty of the wel-affected of this County, to communicate to your Excellency, our intended Addresses by way of Petition to the Supreme Authority, for the removal of some grievances which have layen long and heavy upon the free­born people of this Nation; that so receiving your judicious appro­bation and assistance, we might with the greater alacrity make our procedure. Now Sir, the Heads of our Petition are onely two; name­ly the removal of that usurped Popish relique Tithes, and the aboli­shing of that Tyrannical Oppression and slavish tenure of Copy­holds of inheritance, finably at the Lords will, as things Diametrical­ly repugnant to divine and humane Laws, Lev. 25.14. Ye shall not oppress one another, and Ier. 30.20. I will punish all that oppress thē: where your Excellency may be pleased to take notice of a prohibiti­on not to oppress the people of God, and of a punishment threatned to those that do it. And in Exo. 23.5. There is a command, that if we see the Ass of our enemy lying under a burthen, that we shall not passe by but help him: If therefore an oppressed brute Creature ought to be relieved by us, how much more a rational? how much more a Christian and wel-affected people? who in the blackest times of danger and peril, have adhered to the State with undanted resolutions, adventuring lives, goods, and all, for the glory of God, and the preservation of this Common-wealth; wherefore let not, O let not our State bury in silence the day of this peoples love, who, next to your Excellency and renowned Army, under God, have been a principal means of the glorious freedom our State now enjoyes. But because most men look more upon humane, than divine Autho­rity, especially where their own private interest falls in; and as it is [Page 4]in the 5th. Book of Aristotles Ethicks, Can be vertuous and just in matters of their own concernment, but not so in what concerns the publique, which occasioned Nobile illud dictum Biantis, that no­ble saying of that Grecian Sage, [...], Power will discover the nature and disposition of every man. Therefore for the satisfaction of those, whose judgements are over-ballanced in the scale of earthly interest, (not in the least reflecting on your Ex­cellency, whom we experimentally know to be of a more divine temper) we shall in brief produce some humane authorities, as mo­tives to the removall of the aforesaid grievances:

First by the 29th. Chapter of Magna Charta, It is enacted, That no man shall be disseissed, or put out of his free Tenement, Liber­ties, or Customes, but by the lawfull judgements of his Peers, or Law of the Land: which Charter is of so great authority, that it hath been confirmed above thirty times. Now Tithes being a part of every mans free-Tenement, or free-hold and birth right, ought not to be taken away from him, either by the Impropriate Person, or Appropriate Parson, for these reasons.

First, Because by the Stat. of 25. E. 1. ch. 2. All judgements given against any points of the Charters of Magna Charta, or Chartade Foresta, are adjudged void.

Secondly, by the Stat. of 42 Edw. 3. ch. 1. If any Statute be hereafter made against either of these Statutes, it shall be void. Cookes 1. [...]. Just. fo. 81.

Thirdly, in Bonhams Case, in the 8th. Book of Cooks Reports, and in Dr. and Student, it is laid down for Law, that Acts of Parliament against common Right or Reason, are ipso facto void.

And lastly, it is proved by Jenkins, fol. 139. That the Com­mon Law shall controle Acts of Parliament made against Right or Reason, (such as all Statutes for Tithes are) and adjudge them to be void, because they deprive men of a part of their right, con­trary to Magna Charta, and against the will of the Proprietor or owner; so that hence it will plainly appear, that those Statutes which have been made by former Parliaments concerning Tithes, in times of Popery and ignorance, and upon false grounds of their Divine Right, being Diametrically repugnant to Magna Charta, and destructive of common right, then were, and now are, totally void, null, and of no force; and that all Tithes taken by virtue of them, have been usurped, illegal, and unwarrantable. And [Page 5]because some seeing the weaknesse of their Statute-Law foundation, may fly from thence to the Umbrage and shelter of custome; we answer. It is a Maxim in Law, that a man cannot claim any thing by Custome or Prescription, against a Statute, unlesse the Custome or Prescription be saved by another Statute, Cooks 2. p. Just. fo. 21. Now by the aforesaid Charter of Magna Charta, which was confirmed by H. 3. about the year, 1218. Tithes as well as the rest did belong to every mans Tenement and Free-hold, and so far were the Clergy at that time from claiming any Tithes to be due un­to them by any Custome, as that, on the contrary, it is acknow­ledged at the Councill of Lateran, under Gregory the 10th. Anno 1274. and in the Decretal Epistle sent from Pope Innocent the 3d. to the Arch-Bishop of Canterbury, about the year 1215. that the people of this Nation did by a general Custome till then observed, dispose of their Tithes according to their own free will and plea­sure. So that it is very clear at the confirmation of Magna Charta, no Custome of the Land for Clergy-men to have Tithes out of e­very Proprietors Estate, but that they were the proper right and inheritance of the owner of the Land. And for confirmation here­of, it is said by learned Selden in his book of Tithes, that in H. 2. his time, which was a little before the said Decretal, Parochi­al right was the right of having the Cure and offering of the Parishiones; and that to that Parochial right, no right of Tithes was annexed by the practise of that time. Whereupon it was usual with the Religious and secular of the Clergy, to covenant with their Tenants to pay them the Tithes of their Lands, that so they might prevent the Minister of the Parish, where the Lands lay. Now if there had been then any Parochial right or custom for re­ceiving Tithes, how could such a Covenant have prevented the Parochial Minister? And that this is a clear truth, is evidenced by an Act of Parliament, in the first year of Rich. the 2. and in the year of our Lord 1377. in these words, It is accorded, that at what time any person of Holy Church be drawn in plea in the Secular Court for his Tithes taken by the name of Goods taken a­way; and he, which is so drawn in plea, maketh an exception, or allegeth, that the substance and sute of the businesse is only upon Tithes, due of right and of Possession to his Church, or to ano­ther his Benefice, that in such case the General averment shall not be taken without shewing specially how the same was his Lay Ca­tall: [Page 6]that is to say, for him to aver and maintain, that the Tithes he laid claim to, did belong unto him by Parochial right and cu­stome, as Minister of the place, was no good and allowable plea in Court, but that he must shew in special, and in particular, how the said Tithes he laid claim to, became his Lay Catall; whe­ther by grant, gift, or otherwise: So that here is not only an ac­knowledgement of the Pope and Clergy, but an Act of Parliament against Parochial right and custome of Tithes. And yet should we grant them a custome for Tithes, which they cannot claim without blushing; of what weight, how like a feather would it be, being put in the scale with Magna Charta? And although it may be objected, that they have now a long time enjoyed them, even time out of mind; yet that will not avail much, since it is not a lawfull user, but an abuser, and tortious Act, carryed on with a power contrary to all Law, equity and justice.

Moreover in customes, Non diuturnitas temporis, sed soliditas rationis est consideranda, Not length of time, but soundnesse of reason is to be weighed: Upon which ground at a Parliament at Kilkenny in Ireland, in the 40th. of Edw. 3. The Irish customes called the Brehon Law, though of long continuance, were null'd by that Parliament, upon this ground or Maxim, that malus u­sus est abolendus, an ill custome (as Tith-taking is) ought to be a­bolished. So that the plea of a long continued custome of ta­king Tithes, contrary to Magna Charta, ans common right, will but little conduce to the justification of its authority and law­fullnesse. And if from hence, any shall fly to Scriptures refuge, which none but avaritious Sciolists in sacred law and language will attempt; we shall, if the weaknesse of their own arguments be not a clear confutation of their errors and injustice, return a modest and sober answer.

Secondly and lastly, as to the other branch of our Petition con­cerning Copy-hold Lands of inheritance, finable and also herio­table, by the Tyrannicall practise of many, at the will of the Lord of the Manor, we humbly conceive, that by the equity of the tenth chapter of Magna Charta, Let no man be distreined to do grea­ter service for his free Tenement than he ought, grounded upon the 25. ch. of Levit. v. 17. Ye shall not oppresse one another: all those arbitrary and unreasonable exactions, of Fines and Heriots, exercised of late years by Tyrannical Lords of Manors, have been [Page 7]illegal, and repugnant to the equity, if not the letter of the said Charter, and have run beside the chanell of charity, law, and justice; But because many of late and former times have laboured much to vilifie and obscure the credit and esteem of Copy-holders of inheritance, and their tenure, thereby to make way for their pride, avarice, and Tyranny, we shall therefore make a little further inquiry into the discovery of them. Bracton lib. 4. ch. 28. saith, that Villenagiorum, aliud purum, aliuà privilegiatum, Of Villenages, one kind is pure and perfect Villenage, the other a more free, honourable, and privileged. Where note, that Villenage in its proper and genuine signification, is nothing but the service of a Husbandman, which may be either honourable or base, ac­cording to the quality of the person and tenure: and therefore he saith, Pure or base Villenage is that, whereby either a free man or a bond-man so holds of his Lord, as that he is tyed to do what­ever he shall command him, not knowing over night what he must do the next morning, and always in all things is held to uncer­tainties; and of this sort is Littletons Tenure of Villenage, whose large Tract upon that subject might well have been spared, since there were very sew, if any, even in his time, who held by that base and unworthy I enure.

Now the other sort called by Bracton, Privilegiatum, Privile­ged Villenage, or as he termeth it in his 2d. book, and 8th. and and 35th. Chap. Villanum Soccagium, qualified Soccage, which is the same with Littletons Tenure of Copy-holds, where the Te­nants hold their Land by Copy of Court Roll, as Cook in his Commentaries upon Littleton 1. p. Inst. fo. 58. acknowledgeth. So that Bractons qualified or privileged Soccage, and our Copy-holds, are one and the same, which is more clearly proved by the same manner of conveyance in alienations: for saith he in li. 2. cap. 8. Si Villanus Sockmanus Villanum Soccagium; if a qualified Sockman or Copy-holder, will convey his qualified Soccage to another, let him surrender the same unto the hands of the Lord, or his Steward, and let the other receive it from them; which is the form we now use. And in his 1. Book and 2d. Ch. they are called Gleba ascripti­tii, Inrolled Tenants of the Glebe or Manor, and who did en­joy such privileges, as that they could not be put out, so long as that they paid their certain and yearly pensions, whosoever was Lord; neither might they be compelled to keep their Tenement. [Page 8]but might alien when they pleased, and they them, as we now, did hold their Tenements, ad voluntatem Domini, secundum consuetu­dinem Manerii, at the will of the Lord, according to the custome of the Manor: Yet was not that such an unbridled will, as many pragmatical Novices in Iurisprudential Learning now Imagine, not a naturall will, but a legall will, bounded by rea­son, Law and custome; So that if the Lord of the Manor did at any time goe about to disturb, or put them out of their Tene­ments, although they might not have an Assize, yet they had Parvum breve de Recto secundum consuetudinem Manerii, a small writ of right, according to the custome of the Manor, for to re­gain their Estates. Bracton lib. 1. cap 2. lib. 5. cap. 2 where the writ is likewise expressed. And in his 4th. book and 28 Chap. He saith, That if the Tenant be ejected by his Lord, he shall have a jury impannell'd, to enquire of the Covenant, and consent of the Lord, in admitting of him to be his Tenant, whom he ejected, and he shall be restored; because, Jura non debent juvare dominum, contra voluntatem & consensum suum, quia semel voluit conventio­nem, The Laws ought not to relieve the Lord against his own will and consent, because he hath made a Covenant, that his Copy­hold Tenant shall enjoy his Tenement, performing his services and customes, li. 2. cap. 8. and li. 4 cap. 28. And in the Reign of E. 3. and E. 4. Sir Iohn Danby and Thomas Brian Lord chief Justices, were of opinion, that Copy-holders ejected by their Lords, might have an action of Trespasse. Neither is Bracton single in his good esteem of privileged Sockmans, or Copy-holders, since Fieta writ by a great Lawyer about E. 2 his time, and Ockam in H. 2. his Reign, do both of them honour Copy-holders in those elder times, with the name of customary Tenants: And Ockam not on­ly spake worthily of them, but of their Original, whose works through the envy and Tyranny of the times, have not had the liber­ty to appear in publique. And Lambard in his book De Priscis An­glorum legibus, of the ancient Laws England, saith, That Co­py-holds were long before the Conquest, and then call'd by the name of Book-land: and since the Conquest they have been honoured with many worthy appellations, as of Copy-holders, in H. 5. of Tenants by the Rod, in H. 4. of Tenants by the Roll, ac­cording to the will of the Lord, in E. 3. of Customary Tenants, in in E. 1. Cooks 1. p. Iust. fol. 58. And because Copy-holders have [Page 9]been much abused in the late corrupt times of Monarchy, not only in the disgracing of their Tenure, but also in the altering and multiplying their Customes and services: great persons falsly pre­tending, as if poor Copy-holders had nil de jure, but all de gratia, nothing of right, but all of favour. Therefore for further satisfa­ction, we will make some brief discovery therein. Bracton in his first Book and second Chapter, saith, That the works of privile­ged Sockmans or Copy-holders were, though servile, yet certain and nominated. And again in his 4th Book and 28th Chap­ter, That qualified Sockmans had their Tenements granted unto them to hold by Covenant, for certain services and customes na­med and expressed, although the services and customes were ser­vile; that is with Cart, Plough, or the like, at certain set times in the year, according to agreement. And again a little after, Vil­lani Sockmanii villana faciunt servitia, Qualified Sockmans do servile works and services, yet certain and determined. Now Cook upon Magna Charta, ch. fol. 13. saith, That in these words, reasonable customes, and reasonable services, all Fines, whether certain or uncertain, and other Customes and Duties are comprehended: And if so, then for certain all Fines of Copy­holds were in Bractons time certain, and not as now uncertain and Arbitrary. But yet by the way take notice, that he doth not speak of any Fines to be paid by Qualified Sockmans, upon death or a­lienation, that word under that notion being unknown to him or any other (as we conceive) of that age. And having in his se­cond Book and five and thirtieth Chapter, treated at large, who ought to do Homage, and who Fealty, and having shewed that both free and qualified Soccagers ought to do Fealty to their Lords, comes in the following Chapter to treat of Reliefs: and in the eighth branch of the Argument of that Chapter, makes this Quaerie, Si de Soccagiis dari debet relevium? If of Soccages (spea­king plurally) a relief ought to be given, which must be under­stood both of free and qualified Soccage; and towards the latter end of the Chapter, saith, Et nunc videndum, si de Soccagio dari debet relevium? And now next comes to be considered, whether a Relief ought to be given of Soccage? which being spoken inde­finitely, and in generall, without adding any Epithet, either of free or qualified, must in all construction, if you consult the begin­ning of the Chapter, be understood both of free and qualified [Page 10]Soccage. So that that duty or performance, which upon the death of the Ancestor, was given in recognitionem Dominii, by way of acknowledgement of his Dominion and Lordship; and as he saith, ad relevandam haereditatem, to relieve and raise the E­state and Inheritance into the hands of the Heir, was Praestatio quaedam loco relevii, a certain prestation or performance, instead of a Relief, (for he will allow it properly to be a Relief, which the Soccager either free or qualified paid) due onely upon death, but never upon alienation, and was ever certain, namely a double Quitrent, that is to say, one years Rent due to the Lord, besides the yearly Quitrent. And this is that Duty as we clearly con­ceive, which since they have new named and called a Fine, and exacted not onely upon deaths of Copy-holders, but Alienati­ons also; and not onely according to two years Quitrent, as by Law they ought, but according to their unreasonable lusts and desires, forcing from their Tenants not onely two years, but even three years Fine and more, according to the yearly value and Rent of the Land: So that the Copy-holder, who was wont according to the antient Law and Custome, to pay for a Fine upon Death onely, but two years value according to the Quitrent, is now driven to pay two and three years value accor­ding to a full and rackt Rent; and that upon alienations too, con­contrary to the said antient Law and Custom, and all good con­science. Neither is Bracton alone in ascertaining the services and customes of Copy-holders, but others have said the same, and namely Britton a Bishop, in E. 1. and very learned in the Laws; and who at the Kings Command composed them into a compleat Volum: where treating of Copy-holders of Inheritance, setteth it down for positive Law, that such were their privileges, that their Lords might neither increase their services (under which as before is shewed, are comprehended Fines) nor change them, to make their Tenants doe other services or more. Brit. fo. 165. And accordingly was the judgement of a whole Parliament in the same Kings Reign, though ill, (if not of purpose) and vitiously tran­slated; which yet for further satisfaction we will here set down, as we have received it pointed, and comma'd by Cook in his 4th book of Reports, in Browns Case, in these words, Inquirendum est etiam de custumariis, viz. quot sunt custumarii. & quamtum terrae quilibet custumarius teneat, qua opera, quas consuetudines faciat, & quantum [Page 11]opera & censuetudines cujuslibet custumarii valeant per annum, &. quantum redditur de reddit. Assisae per annum, praeter opera & con­suetudines qua possunt talliari, & quae non ad voluntatem Domini, which in English according to a true and Grammatical translation, is as followeth.

Inquity is to be made also of customary Tenants, that is to say, How many customary Tenants there are, and how much Land every customary Tenant holdeth, what works, what customes he doth, and how much the works and customs of every Customary Tenant are worth by the year; and how much is paid (meaning by every one) of the Rent of Assize by the year, besides their works and customes which may be rated and valued; (as two or three dayes work in a year with Plough and Cart) and which are not at the will of the Lord: Whereby it appears, that a whole Par­liament esteemed of them as customary Tenants, that their Rent was accounted then parcell of the Rent of Assize; and that all their works and customes were certain, according to the opinion of those two great Lawyers before-quoted, who lived in or near the said times, one whereof was Lord Chief Justice of England, and the other a great and learned Bishop. And for as much as Copy­holders have been as much oppressed in Heriots, as in any other duty or service, we will therefore in brief speak a word or two concerning the antient Law in that point. Fleta lib. 2. cap. 50. and Brit. fo. 178. both say, that the Copy-hold Tenant, making his Testament upon his Death-bed, ought to make an acknow­ledgement of his Lord, by giving of him one Heriot. And Bra­cton lib. 4. cap. 26. saith, that the Soccager, whether qualified or free, ought at his death to respect his Lord with one Heriot, Quae tamen praestatio est magis de gratia quam de jure, which prestation or performance, saith he, is rather of favour than of right, and doth not at all touch the inheritance. And if we look a little higher, Glanvill Lord Chief Justice of England, in H. 2. lib. 7. cap. 5. De legibus & censuetudinibus Angliae, of the Laws and Customs of England, saith in these words, Potest quilibet liber homo majoribus debitis non involutus, &c. Every Freeman not greatly indebted, may in his sicknesse make a reasonable devise of his goods under this form, according to the custom of the Country, that he do ac­knowledge his Lord with the best and principallest he hath; next the Church, and afterwards other persons, as he pleaseth: but [Page 12]saith he, whatsoever the customes of diverse Countries and places are in this point, according to the Lawes of the Kingdom, no man is bound, in his Testament to leave any thing to any person, but at his free will and pleasure. For every mans will, saith he, is free, as well in reference to Testamentarie Laws, as to other Laws. So that here you may plainly perceive, that by the Law of the Land, according to the opinion of this great Iudge, no Heriot was due; and if there were any due by any particular custome, it was but one, and that upon death only, and must be given by the Testator by Will too, and not be much in debt neither, whereby it appeareth ac­cording to the opinion of those great Lawyers, Fleta, Britt. Bra­cton, and Glanvill, all those Heriots which have been exacted of late in such multiplied numbers, have been illegal & unjust, and con­trary to the good Laws and Customs of this Nation in former times.

Now by what hath been briefly said, it may easily appear to a­ny indifferent man, who hath incroached most upon each others Liberties; Whether the great and potent wealthy Lord of the Manor, carrying all things before him by the virtue and charm of his unrighteous Mammon, or the poor despised trampled-under-foot-Copy-holder, who hath been forc'd to lose his Liberties, to preserve his lively-hood. Whereas according to those great au­thorities of Bracton, Britton, and others above quoted, all Fines, Customes, and other services of Copy-holders, ought neither to be changed nor increased; and that according to others, who have strained the Law beyond its due bounds, in favour to Lords of Manors, all unreasonable Fines and Services are forbidden; and if all unreasonable, then certainly all Arbitrary, since it is abun­dantly made known by long experience to the People of this Nati­on, that all Arbitrary power, (as is the power of Lords of Ma­nors, to set what Fines they please upon their Tenants, at Death or Alienation) is oppressive, Tyrannical, and contrary to the peace and freedom of this Common wealth, as fully manife­sted in a Declaration of this Parliament, set forth in March 1648. In these words, The Parliament of England, elected by the Peo­ple, whom they represent, have long contended against Tyranny, and endeavoured to remove oppression, Arbitrary power, or pow­er of will, and all opposition to the peace and freedom of the Nation. And again in another Declaration of the 7th. of April, 1646. in this manner. And as both Houses have already for the [Page 13]ease and benefit of the people, taken away the Court of Wards and Liveries, with all Tenures in Capite and Knight services: So we shall take special care, that as speedy and as great ease, may be had otherwise in other grievances, as the pressing occasions of the Commonwealth will admit. Wherefore (these arguments premi­sed, being seriously considered) we humbly crave of your Excel­lency, that you would be pleased to intercede with our Represen­tative, for the removall of that unjust and slavish bondage and yoke, which neither we nor our fore-fathers have been able to bear, that so we may not only in spirituals, but also in temporals, enjoy that freedom and liberty, which not only by Law, but by right of Conquest is due to the wel-affected people of this Commonwealth. It is the Law of Nature; yea and the Law of Christ too, Fac alteri, quod tibi vis fieri, do to others, as you would be done to. If so; How can freedom & liberty be denyed to those who with the hazard and losse of their lives, goods, and all, have purchased freedome and liberty, not only to their Representatives, and well-affected Po­tentates, but also to those who have been enemies to this Com­monwealth? whereby they, who under the Monarchical yoke were in bondage, not only in respect of their estates, but of their persons also, are now restored to a noble and glorious liberty, whilst their fellow brethren, who ought to be sharers in this free­dome, lye under the burthen of Tithes, and bondage of Copy­holds; many whereof do at this day retain the dishonourable names of base Tenure and Villanage in the worst sense, as if we were rather returning back to Egypt, than in our progresse to Ca­naan. Ah most religious Sir! did we not Demas like mind our own present power and profit, more than our trust and promises in times of danger, these things could not be: but what shall we say, Deus dabit his qui (que) finem, God will in his due time put a period to these things. Now to conclude, we once more humbly desire your Excellencies favour and assistance, in gaining freedom to those, who have been greatly instrumental in the work of the Lord, and for whose sake paradventure God hath been gracious to this our Si­on and Commonwealth; and we shall not only pray for the eter­nall happinesse of your Excellency, but also take the boldnesse to subscribe, as in all duty and gratitude we are bound,

Your Excellencies most humble Servants in the Lord Christ.

The Petition of the Inhabitants of the County of Middlesex, concerning Tithes, and Copy-holds of Inheritance, presented to the Supreme Authority the Parliament of England.

Sheweth,

THat as your Petitioners are really sensible of the unwearied la­bours this honourable Parliament hath undergone, in the Vin­dication of the Rights and Liberties of the free-born people of this Nation, from the incroaching Tyranny of Kingly and Lordly pow­er, for which they return a gratefull acknowledgement: So they desire to mind you, that the wel-affected of this Nation, have, in this common cause of publique freedom and preservation, faithfully served you in their severall places, willingly undergoing all bur­thens, either of Tax or Free-quarter; besides the voluntary loans of very many, even beyond their abilities, upon the Propositions. And since it is the undoubted right of the free-born people of this Nation, from whom all just power is derived, to present to their Parliament, or Representative, all their grievances, that so Adae­quate remedies may be duely applyed; Therefore we offer to your more serious considerations, these ensuing particulars to be speedi­ly redressed.

First, Forasmuch as all Tithes, reliques of the late destroyed Hie­rarchy, are declared in the 2d. Book of Cooks Reports, in the Bi­shop of Winchesters Case, to be things meerly spiritual, and due by divine right; and for which there is no remedy at the Common Law: and also in his 2d. Book of Instit. and Chap. of Tithes, that by the Common Laws and customes of this Nation, Lands are un­decimable: [Page 15]which is fully evidenced by a Canon of the Council of Lateran, under Greg. 10th. 1274. in this manner; Let no man give his Tithes where he pleaseth, as before, but let them be paid to Mother Church. And Britton, though a Bishop, treating of Ecclesiastical power, and of what things the Church had counsance, doth wholly omit Tithes, knowing very well that those Popish Canons and constitutions, which not long before had been made for the taking away the Tenths of mens Estates, were totally void, being Diametrically repugnant to Magna Charta. Which likewise is further attested, by a decretal Epi­stle sent from Innocent the 3d. Pope of Rome, to the Arch-Bishop of Canterbury, about the year 1215. wherein it is clearly acknow­ledged, That the free-born people of this Nation, did by the Gene­ral, and till then observed custom of this Land dispose of the Tithes or Tenths of their estates, according to their own free will and plea­sure. So that it is very clear, Tithes have been formerly by the Popish Clergy subtilly perswaded, or rather extorted from our An­cestors, under the notion and consideration onely of a Divine right, and chiefly by virtue of the said Decretal, which so awed our fore­fathers, that it frighted them into a servile and unwilling obedience. Wherefore we humbly desire that all Tithes and Tenths (under the notion whereof we pay a fifth) may be speedily removed, as a great Oppression and Usurpation, that so Husbandry and Tillage may thereby receive the greater encouragement; and that all Impro­priators may thereby receive such reasonable satisfaction (notwith­standing much may be said to the contrary) as you in your wis­doms shall think fit. And that likewise a comfortable mainte­nance may some other [...] [...]nd peaceable way according to the Word of God, be provided for the Ministry, that so the glorious Gospel of Jesus Christ may no longer be impeded, by that sen­sual and earthly Remora of litigious Tything, but that Evangeli­cal Messengers may with the Apostle Paul, by the sweetnesse of their lives and conversation, convince gain-sayers, that they come not to seek ours, but us.

Secondly, That all Copy-hold Lands of inheritance, may be made free from all Fines, Heriots, and other slavish services brought in by, and after the Norman Tyranny, as may appear by Bracton a great Lawyer in H. 3. his time, in his first Book and 7th. Chap. of the Customs of England, where he saith, That, in the Conquest, men held their lands freely, by free services or customes, and cer­tain, [Page 16]untill being thrown out by usurping Normans, and their ad­herents, they were enforced to retake them again, to hold by un­just and unequal terms and services, yet still certain and nomina­ted, which through the avarice, cruelty, and oppression of succee­ding Lords of Manors, have been increased illegally, to a strange multiplication of Heriots, and Arbitrary raising of Fines, from two years value, according to the Quitrent, to two and three years value according to the sull Rent, a thing altogether unreasonable, and unconscionable, as hath been clearly adjudged. And although your Petitioners humbly conceive, that Copy-holders of inheri­tance, ought by their Tenures to have been protected by their Lords, and to have been freed in this time of War, from all pub­lick burthens, and taxes; yet so far have they been from affording the same unto them, that they have for the most part, forsaken and denyed them protection, whereby their Copy-hold Tenants by them deserted, have for a great part most willingly adhered to the Commonwealth, and have laid out themselves to the utmost, in bearing an equall share in all publick hurthens with the Free-hol­ders, to the impoverishing of themselves, their Wives, and Chil­dren. And Moreover since, as we are informed, much of the Lands setled upon Souldiery for their Arrears, are freed from all Tithes, Fines, and other slavish services, which we envy not, but exceeding­ly congratulate; nay since all Lands held in Capi [...]e and Knights service, are by an Act of this present Parliament freed from all ward-ships, and other slavish imcumbrances, notwithstanding the greatest benefit thereof doth redound to the advantage and e­molument of those who have bee [...] [...]ctual Armes against the State, or who at least in their declared affections have been ut­ter enemies thereof: Seeing we say, that not only the Army, but your enemies have tasted so deeply of your grace and favour, Let it not be said in Gath, nor published in the streets of Ascalon, that your dearest Friends, those out of whom your Armies have been raised, formed, and supplied with men and money all along; those by whom you have in the greatest danger, and times of exigency, been most readily and willingly assisted, even to the hazard and losse of their lives: Let it not be said, we humbly reiterate, that those who have been your friends, Gods friends, and their Coun­tries friends, should now at length be left to remain in bondage, and Gibeonitish slavery, whilst their enemies riot and abound in li­berty [Page 17]and freedom. Wherefore we humbly desire, that all Copy-holders of Inheritance, may according to your severall Declarations of the 7th. of April, 1646. and of March, 1648. be restored to christian freedom and liberty, the fruits of Conquest, and the just reward of their expence and haz­zard, that so of victors they may not become slaves and vassals in their estates, to their conquered Lords, whom they begin already to feel, and are dayly like to find more cruell and unreasonable, than ever, if they shall return again to reign over them, with the full sayl of usurped power.

Thus hoping that the same God, who hath even mira­culously given you Victory over your enemies, rest from warres, peace in your Habitations, and put a power into your hands to do righteous things for the good of this Nati­on, will also put into your hearts and minds, to do these things represented unto you; and what else, you in your wis­doms shall know to be for the good and welfare of this Com­mon-wealth.

And we shall ever pray, &c.

The Case of Copy-holders stated, according to the Quando lex accommo­datur ad cau­sam & perso­nam, & non è contra. When the Law is applyed to the cause and person, not they to it. Lesbian Rule of the Law, in the cor­rupt times of Monarchy; wherein is clearly proved, that no Lord of a Manor of Copy­holds of Inheritance, can take for a Fine where (as they say) uncertain, of his Copy­hold Tenant two years clear yearly value of the Land.

FIrst, Because it is resolved by Popham Chief Justice, Clench, Gaudy, and Fenner, Justices of the upper Bench in the 42. and 43 Eliz. between Hubbard and Hammon; that if the Fines of [Page 18]Copy-holders of a Manor are incertaine upon admittan­ces, yet the Lord may not demand or exact an excessive or unreasonable Fine; and if he doth, the Copy-holder may de­ny to pay it without forfeiture; and according to this resolu­tion, it was then said, that it had been formerly adjudged in the same Court, in one Hoddesdons Case. Cookes Reports, lib. 4to.

Now it is a Rule and Maxim, that all excessivenesse is ab­horred in Law; and that all things ought to be interpreted with equity and moderation. As put case, the Lord of a Manor, where Fines, through his Tyranny are incertain, hath taken time out of mind, about a years value, not much under nor over: If there one of his Copy-hold Tenants shall improve his Land by great charge and industry, from 5 l. per annum, to be worth 20 l. per annum, and then dye, and af­ter the Lord shall set two years Fine, viz. 40 l. upon his Heir, this will be an excessive and most unreasonable Fine. First, Because where a Lord hath usually taken about a year, though a little under or over, there to take a year and half, (though according to the value before improvement) is excessive, and so illegall; if the Rules of right reason, moderation and e­quity, were closely held to and kept. Next, it is altogether unreasonable, because, through this improvement of the Te­nant, with a vast expence and charge, perhaps treble to the Land, the Lord now comes to take in a little compasse of time, at a year and halfs Fine, six years years value, at two years Fine, eight years value according to the yearly Rent and worth of the Land before improvement: So that now a co­vetous and unconscionable Lord, (as too many there are) will take advantage to enrich himself out of the Tenants vast expence and industry, contrary to the Rules of Iustice, equity and honesty.

Secondly, and lastly, no Lord of a Manor can by the present Law, take two years clear yearly value for a Fine, where (as Law­yers say) they are uncertain, (though repugnant to those great Authorities in the Letter before recited, and contrary to their own Maxims, and abundantly savouring of tyranny) upon the admittance of a Copy-hold Tenant, as is clearly resolved in an action of Trespasse between Stallon and Brady, commenc'd [Page 19]in the first year of King Iames, in the Court of Common Pleas; where the Lord of the Manor did set a Fine at two years clear yearly value, which the Tenant denying to pay, being unreaso­nable, the Lord enters, and thereupon the Tenant brings an acti­on of Trespasse, and after five years demurre, consultation be­ing had with all the ludges and great Lawyers of England, it was at length (viz.) in the sixth year of King Iames, by the Iud­ges of the said Court of Common Pleas, fully and unanimously resolved, that the said Fine of two years was unreasonable, and so no forfeiture by the Tenants denial.

Now from hence it must be concluded that for any Lord of a Manor to demand a year and a halfs Fine, is the very utmost rigour and extremity of the Law, as it hath flowed to us out of the impure fountain of Monarchy, and all those who have exa­cted more, have done illegal, and unwarrantable Acts, accor­ding to that Lesbian Rule.

But where Tenants have at their great charge, made im­provements as is above declared, there for the Lord to take a year, much more a year and half, is altogether unconscionable, and against the Rules of equity.

The Case of intolerable Oppression in point of Heriots.

A Copy-hold Tenant holds a 100. Acres of Land, worth per annum 5 s. per Acre, and 20 s. Rent yearly, and for which, the Lord claims a Heriot upon Death. The Tenant aliens his Land to a hundred men; now by our Book-Law, made in corrupt times meerly in favour of Lords, and to oppresse poor people, the Lord of the Manor shall have his 20 s. Rent, and besides, a Heriot for every Acre upon the death of every particular Tenant; for this reason, which is no reason, because a Heriot is an indi­visible service: so that it may so fall out, that the Lord shall have Heriots in a short time, to the value of one thousand pounds, whereas the whole is not worth five hundred pounds; and be­sides, a poor man having an Acre of his Land not worth five pound, and dying seised, the Lord shall enter upon his Goods, and take away for a Heriot, a Cow or Horse worth six or eight pound, to the utter ruine of his Wife and Children.

Now from a division of Land to urge a multiplication of He­riots, hath neither antient Law, reason nor honesty in it, not­withstanding those slight Arguments, and fond distinctions of Heriot Service, and Heriot Custome, which are used to the contrary.

REader these names should have been placed at the end of the 13th Page.

  • Col. Pride,
  • Aug. Wingfield,
  • Robert Cromwell,
  • Col. Potter,
  • Henry Arundell,
  • Nich: Beale.
FINIS

Vindiciae Medio-Saxonicae, OR, Tithes totally Routed, BY MAGNA CHARTA IN A Reply to an Answer of Middlesex Letter and Petition, in the latter end of a Tract, called, A Treatise of Tithes. WHEREIN The Invalidity of the said Trea­tisers Arguments are fully manife­sted, and the said Letter and Petition clearly vindicated from Error and Mistake. BY AUG. WINGFIELD, A Member of this present PARLIAMENT.

LONDON, Printed by F.L. for William Larnar, at the Black­more near Fleet-Bridge, 1653.

Tithes totally routed, by Magna Charta.

HAving perused a Treatise of Tithes penn'd by way of Answer to its Opponents, by one, as it is con­ceived, of the long Robe; we thought fit to give timely admonition, that though he pretend to be a wel wisher to Religion and Propriety, yet when he speaketh fair, men believe him not; for there are, it is to be feared, seven Abominations in his heart, who though his Sophisticated Arguments be covered with de­ceit, yet shall his wickednesse be shewed before the whole Con­gregation. Prov. 26.25, 26.

In his Epistle to the Reader, he discovers both his spirit and his pride, censuring his Antagonists, as clamorous malitious ig­norants, though perhaps in the judgement of unbiased Mode­rators, more learned, peaceable, and more Evangelically spi­rited than himself. But fearing lest his great Diana Tithes, the Nursery of contention and strife, should in these days of Refor­mation, and restauration of publique Freedom and liberty, like Dagon before the Ark, fall to the ground and come to nought; he hath therefore, out of his worldly wisdom, judged it very op­portune (both in reference to himself and also to his Clients the Tith-taking Priesthood and Impropriator) in this extremity of time, to force into his Aid a Catalogue of Acts of Parliament, though to little purpose, since few of them before the Statutes of H. 8. intimate so much as a right, much lesse command the pay­ment of Parochial Tithes to Priests or others, as if this Respon­dent would make us all beleeve, that Ubi nomen Decima, ibi ar­gumentum Decimandi, that wheresoever in any Statute the word [Page 2]Tith is found, there is an argument for Tithing: though by his leave in some of them by him quoted there is not so much as the name Mag. Char. c. 1. Marl. c. 5. 25 E. 1. 2 [...] E. 1. &c.: But although he and his Tith-taking Brethren have a long time, like Simeon and Dovi, confederated to­gether, not only to make us ignorants, but still to keep so, by perswading of us and our fore fathers, That Tithes were first due by Divine Law, then by Canon Law, and now by Statute Law; yet are we and the good people of Eng­land resolved to be no longer deluded by them with their Para­logisms, and deceitfull reasonings.

And therefore that we may no longer digresse by way of preface, we shall now come to reply, and to examine those two grand objections, which the Author of the said Treatise raiseth against the Middlesex Letter and Petition in the Expository o­pening of those two Statutes of Magna Charta. ch. 29. and 1. R. 2. ch. 14. where this Respondent saith pag. 13. That for the Penner of the said Letter and Petition to make the People believe, that the payment of Tithes is against Magna Charta, is such an exposi­tion as was never made upon that Statute, and therefore to re­ctifie this Errour (as he calls it) he hath laboured, though in vain, to overthrow the said exposition, and those invincible ar­guments built upon it, and to set up his own contrary interpre­tation and false affertion, (viz.) That Tithes and the pay­ment thereof by the people, were confirmed by Magna Charta, ch. 1. under the Notion of Church rights.

And first for proof thereof he saith, pag. 14. That by the Com­mon Law of this Land, at the confirmation of Magna Charta, Ecclesiastical persons had remedy to recover their Tithes in the Spiritual Court, and then concludes, that the Law gives no re­medy but where there is a right: which assertion is very untrue. For Cook upon Tithes saith, That by the Common Law Lands are undecimable, and if undecimable, then certainly by that Law there can be no Church right to Tithes, neither to be re­covered by virtue thereof in the Spiritual, or Popes Court, Since the people of England were not bound in Law by his Can­nons. Neither is Cook single in his opinion, For Selden fo. 291 saith, That Arbitrary disposition of Tithes used by the Laity, as well de jure, of right, (as the positive Law then received and [Page 3]practiz'd was) as de facto, of deed and practise, is that which Wick­leff remembred in his Complaint to the King and Parliament un­der R. 2. The substance whereof in brief, is, That the proud and pompous Priests did constrain the poor People of England (viz. by Popish Canons) to pay their Tithes unto them, whereas within a few years before, they paid their Tithes and Offrings at their own free will and pleasure. Which is also attested by Lud­low a Judge of Assize in E. 3. who saith, That in antient time a man might give his Tith to what Church he would; which is true sayes Judge Brook in Abridging the case. Selden fol. 252.

And the said Author further saith, fo. 290. That under Inno­cent the 3d. it was usuall in fact for Laymen by the practice of the Law at that time both Common and Canon, to convey the right of their Tithes, as Rent-charges or the like, to what Church or Monastery they pleased, and such Conveyances were clearly good. And whereas the Author of the said Treatise, p. 14. quo­teth Mr. Selden for his Authority of Parochial right, he is clearly mistaken, since Mr. Seldens judgement in the same place immedi­ately following is cleerly to the contrary, and that which is here alleged as the Treatisers main Argument, is nothing but the opi­nion of the Canonists recited by Mr. Selden, and by him in the same and following pages fully confuted, pag. 144, 146.

Moreover Magna Charta is, by Act of Parliament made in 25 E. 1. called, the Confirmation of the Charters, adjuged and declared to be the Common Law of the Land; which if true, as it is most true, then Tithes being not so much as named, much less confirmed by Magna Charta, are not due by the Common Law, (as the said Respondent weakly supposeth) and so not at all un­der Ecclesiastical cognisance.

But he objecteth and saith, That Tithes are contained in these words, The Churches Rights, Mag. Char. cap. 1. for further sa­tisfaction whereof, see Cooks exposition upon the very same words, where he saith, that Ecclesiastical persons shall enjoy their lawfull jurisdictions, and other their rights (but not one word of Tithes) without diminution, and that no new Rights were given unto them hereby, but such as they had before confirmed: Now if no new Rights were given, then not Tithes, since the Author of the said Treatise confesseth p. 14. that the Common Right of Tithes due to the Rector of the Parish, is but from the time of K. [Page 4] John, and then, as M. Selden (whom he quoteth) p. 146. decla­reth, not so much as in opinion established, whereby it is evident, not onely by Selden and his own confession, but also in the judg­ment of Gook, that at the confirmation of Magna Charta, Tithes were not at all comprehended in the Rights of the Church.

Which will yet more fully appear if we consult Mr. Seldens book of Tithes, and the Roll of Winten. In the first whereof pag. 137. It is delivered for a clear truth, that there never was any Canon of any General Council as yet found, that purposely com­manded payment of Tithes, nor any that expresly supposed them a duty of Common right, before the Council of Lateran, under Pope Innocent the 3d. 1615: So that at the Council of Lateran, which was in the latter end of K. John, and but 12 years or there­abouts before the confirmation of Magna Charta by H. the 3d. Tithes were not due by common right, that is by Common Law, and so consequently no rights of the Church. And if not then due by Common Law, then certainly not at the confirming of Magna Charta, since in the judgment of all, both Canonists and Common Lawyers, 12 years is not a competency of time, either for custom, or prescription, the one allowing 40 years at least, the other time out of mind.

And yet to proceed, this Respondent doth further acknow­ledge, p. 14. that there was no Parochial Right of Tithes till af­ter the Council of Lateran aforesaid, 1615. and that after the Decretal Epistle of Innocent the 3d sent to the Arch-Bishop of Canterbury in the year aforesaid, the right of Tithes was allowed (but you must know by whom, (viz.) the Pope and his Clergy, not the People) and so became Lex Terrae, a Law of the Land, which are likewise the words and judgement of Cook: Now of what force and validity, a Right of Tithes, grounded upon a Ca­non of the Pope, and diametrically repugnant to Magna Charta can be, let all men judge; since Cook their Oracle hath declared in his Chapter of Tithes, that all Canons which are against the Common Law, or Custom of the Land, are of no force.

Now as to the Roll of Winton, called by some Doomsday Book, which was a survey of all the Lands & Revenues both of Clergy & Laity, exactly taken by Commiss. in every County throughout the Nation, and returned into the Exchequer about the latter end of the Conquerours Reign, It is there Recorded in particular what [Page 5]the Revenues and dues of every Presbyter and Church were, but yet notwithstanding very rarely, if at all, are any Tithes found among the Church Revenues. So that bence it is most cleer, First, that in William the Conquerrors time, Tiths were no Revenue nor rights of the Church; nor yet Secondly, in H. 2. his time, see the Letter and Petition, p. 5. And lastly, by the Authors own confession they became due onely but from the latter end of K. Johns Reign, and that grounded meerly upon a Popish Canon, contrary to Magna Charta, which is acknowledged by the Lear­ned, to be the Common Law of England, both before and after the Conquest.

The second and last objection which the Author of the said Treatise maketh, is upon our exposition of the Statute of 1 R. 2. cap. 14. which wee shall here make good to be most genuine and true, notwithstanding his false calumniation; and that his An­ti exposition is most absurd and false, and such as had not Cu­stom wrought another Nature in him to speak and write untruly, could never have fell from him. Now the question between us is, whether the Averment there spoken of be Lay Averment, and so to be made by the Plaintiff, according to his exposition, or Church Averment, and so to be made by the Defendant, accor­ding to our exposition: whether of which is most true, we shall leave to every one to judge, by opening unto you the Na­ture of Averment out of the judgment of the Learned, and by holding forth such reasons as shall in brief be produced.

And first Cowells Interpreter saith, That Averment signifieth (according to the Author of Terms of the Law) an offer of the Defendant to make good or to unstifie in exteption pleaded in a­batement or bar of the Plaintiffs Act. And Sir Hen. Smith in his book of Law fo. 359 also saith, That Averments must be offered to be proved true in Barrs. 1. Answers, Replications, Rejoinders, &c. but not in Counts andDeclarations. And of the same judgment is Sir Edw. Cook, in his first part of Institutes fo, 362. So that it is evident, Averments are properly to be made by De­fendants in their answears, or in after pleadings, and not by Plaintiffs in their Declaration: unlesse in some few particular cases, of which this is none, as is evident, not only by the Grammatical, and Logical Construction of the said Statute, but [Page 6]even in the judgement of Learned Rastal, a Iustice of the Com­mon-pleas, in Q. Maries days; who to put the question out of doubt, hath set it down in the margent of his Abridge­ment of the Statutes, to be Church Averment, which we con­ceive to be a final determination of the question.

And as to your Ordinance of Nov. 1644. for the payment of Tithes, we clearly conceive it to be the judgement of all the lear­ned, that it is of no longer validity than during Parliamentary Session, which is now dissolv'd upon sure grounds of Piety, Pub­lique freedome, right reason, and honestie: and that not­without the Generall consent of the major part, either prece­dent, or subsequent, of the Supreme Authority, the People.

Now by what hath been said it will easily appear who doth most abuse and mislead the People, and whether exposition of Magna Charta and the other Statute of R. 2. is most true. That of the Letter and Petition, back'd with right reason, and the Authorities of great Lawyers and learned Iudges, or that of the Author of the Treatise, being a fancy of his own brain, and rai­sed out of implicite Terms, which he that believs, had need of of a Popish and implicite faith.

FINIS.

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