THE CIVIL RIGHT OF TYTHES:

WHEREIN, Setting aside the Higher Plea of Jus Di­vinum from the Equity of the Leviticall Law, or that of Nature for Sacred Services, And the Certain appor­tioning of Enough by the Ʋndoubted Canon of the New Testament,

The Labourers of the Lords Vineyard of the Church of England are estated in their Quota pars of the TENTH or TYTHE per Legem terrae, By Civil Sanction or THE LAW of the LAND:

Which being the foundation of All Civill Right Here, must needs render their Spoliation Wrong, the Taking or withholding as Injurious as of Any other MANS DƲE.

Humbly represented to the Judicious and Pious Considera­tion of all Sober and advised Christians, who fearing God and hating Covetousness, have learned Christ fo far, as, To give every one His Own; and would do no Wrong for Conscience sake.

By C. E. Mr of Arts.

Quicquid enim jure possidetur, injuriâ aufertur.

Quintil.

Decimae autem EX DEBITO requiruntur; & qui eas dare noluerit RES ALI­ENAS invasit.

Augustin. Serm. 219: de Tempore.

Render Therefore to All THEIR DUES.

Rom. 13. 7.

Licensed and Allowed.

LONDON, Printed by Tho. Newcomb, for JOHN HOLDEN, at the Anchor in the New-Exchange. 1650.

REVERENDISSIMO. DOCTISSIMOQUE JACOBO. USSERIO ARCHI-PRAESULI. ARMACHANO, PIETATE, ERUDITIONE, CAETERISQUE. ANIMI. VIRTUTIBUS MAXIME. CONSPICUO, DIATRIBAS. HASCE. SUAS. DE. DECIMA­RUM. APUD. ANGLOS. JURE. NATIO­NALI. ET. POLITICO, SUMMA. OBSERVANTIA D. D.

The CONTENTS.

 
AN Introduction declaring the occasion, scope, and limits of the Whole, with way Made to Sundry Pro­positions of CIVILL RIGHT in generall. pa. 1.
Chap. 1. Propos. 1.
That by the Law of Nature all was left at first in Commu­nity; And this according to the Canon, Civill, and Our Com­mon Laws, not opposing the Law of God. p. 9.
Chap. 2. Propos. 2.
That yet Inclosures may be, the Scripture approving and furthering. p. 27
Chap. 3. Propos. 3.
That the Fence making out those Inclosures is Everywhere, THE LAW. p. 31
Chap. 4. Prop. 4.
Which being manifold, That in the world The Maker of Severals is, The Law of Nature, or Nations. p. 37
Chap. 5. Prop. 5.
In any Particular place, The Law of That Nation. p. 39
Chap. 6. Prop. 6.
Individually with Us, OUR LAW. p. 41
Chap. 7.
Here with us Three distinct titles made out for Tythes:
  • 1. Of Donation, strengthned by Confirmation.
  • 2. Possession, advantaged by Being Possessed for God.
  • 3. Praescription, lengthned for through the space of many Praescription-Times; with what Donation (the first of them) is.
p. 56
Chap. 8.
The Donation in Kent of K. Ethelbert and his people, and that it is genuine. p. 62
Chap. 9.
The Donation of K. Aelfwald in Northumberland, and of K. Offa in Mercen-land. p. 68
[Page] Chap. 10.
The Donation of K. Aethelwlph of All who was over All. p. 70
Chap. 11.
Henceforth needed but Confirmation, and Memorials speak accordingly, of not Giving but Paying: what That is, and Tradition superseded as of a Right. p. 80
Chap. 12.
The particular confirmations of K. Alfred, K. Aethelstane, and K. Edmond. p. 82
Chap. 13.
Of K. Edgar with sundry Ecclesiasticall Constitutions. p. 84
Chap. 14.
Of the Parliaments of Aenham and Habam. p. 85
Chap. 15.
Of the Danish Knoght in K. Edgars Law repeated. p. 87
Chap. 16.
Lastly, of Edward the Confessour in his composition of the Common Law. That work done by Him: Whence he had his Materials, with Recapitulation and Inforcement of all thus far to the Conquest. p. 89
Chap. 17.

Behither, a partition of the strengths into four sorts:

  • 1. The allowance of K. Edwards Laws.
  • 2. Church-Constitutions.
  • 3. Impressions of the Secular State.
  • 4. Particular mens Votes.

I As to the first, what William 1. Will. 2. Hen. 1. Stephen of Bloys, and K. John passed to make over these Laws into the Charters; and that They were K. Edwards. p. 99

Chap. 18.
II In Entrance to the Church remembred,
  • 1. That Tythes were under the Conquerour.
  • 2. Confirmed by Hen. the 1.
  • 3. Owned in a Parliament at Westminster in 3. of the same.
Being come in, The Patent of the Court-Christian repre­sented, with taking Tythes into that Jurisdiction likely by vertue thereof. p. 110
[Page] Chap. 19.
Laws or Canons made by the Church. One under Will. 1. Another under Wil. 2. Another at Windsore. Another at London. Two at Westminster. Three Decretalls sent hither, and to whom. What force They had here, and vertu­ally the like of Then have yet. More from R. Hoveden, with Parochial Right settled by Authority from the Laterane Councel. Two other Decretals sent in K. Johns time, also of force: But the chief strength is in the Provincials collect­ed by W. Lindwood, in Quoniam propter: Quoniam au­divimus: Sancta Ecclesia: Quia quidam; &c. p. 120
Chap. 20.
The Canon of Sylva Coedua. Strength of Church-Power to create Right where not restrained, insinuated by the Statute of 45 Edw. 3. 3. against the Excess of that Power. The Pro­ceedings in the Court-Christian to Recover these Rights. What was intended by the Stat. of 25 Hen. 8. 19. about Reforming the Canons. What was done: The Canons to this purpose Given. Till these be authorised, All Former in force, as by the Proviso of that Statute. p. 137
Chap. 21.
Among Seculars, the firm Rooting Tythes have in III the Great Charter. The solemn Ratification and due Great esteem thereof: with address by Apostrophe to those are a­gainst them, that they keep but fast here, and This will set­tle Tythes. Their Redargution else from their own Principles, and a Christian admonition to Constant, Equall and Just dea­ling. p. 148
Chap. 22.
The Statutes of Regia Prohibitio under Hen. 3. Of Circum­spectè agatis, and Consultations under Edw. 1. Articuli Cleri under Edw. 2. Four more under Edw. 3. Divers under R. 2. and Hen. 4. All but the Exempted now paid, and Who were Exempted. p. 162
Chap. 23.
Ʋnder Hen. S. Wary and just proceedings as to this mat­ter. The preservation of Tythes, when what next was Cast away. The Need of Temporals for Divine Service. Two [Page] Statutes by Consequent establishing them, sc. 24 Hen. 8. chap. 12. & 25 Hen. 8. chap. 19. and Two more purposely, sc. 27 Hen. 8. chap. 20. & 32 Hen. 8. chap. 7. p. 177
Chap. 24.
The last and most vigorous under Edw. 6. p. 192
Chap. 25.
An Examination of the Lo. Cooks assertion occasioned by his Comments thereon, That Tythes were taken into Church-Cognizance by some old Statutes, as about Edw. 1. time. And that Not, from nine alledged probabilities. p. 198
Chap. 26.
By occasion of the mention of them in that Statute, The More ancient dueness of Personal Tythes laid forth: With the Laws in force for them before the Statute. p. 205
Chap. 27.
The grant of the Petition of Right a Concession of All. That None are Burdensome, because laid on by Law. Application to those that Plead this Petition, that if they understand it It Can­not be Against but Must be For them, because they were at the time of that grant A Right. p. 211
Chap. 28.
What particular and Ruling as well as Judging Law­yers have said. The Lo. Cook: M. Saint German, Fleta, Bracton, &c. And an insinuation of their allowance from the proceedings in Temporal Courts inferred from the form of Prohibitions in the Book of Entries, Natura Brevium, &c. p. 219
Chap. 29.
Collection and Re-inforcement of all Hither. p. 227
Chap. 30.
Of Possession (the second ground of Right:) The great force it has abroad, as that
  • 1. It gives Right.
  • 2. Was the first Right.
  • 3. Is a very Right.
  • 4. Against All but One presently.
  • 5. Against him at last.
  • 6. Against an equall Right at any time.
  • 7. Against All till eviction.
  • 8. Helps to Keep what it could not Get.
The Application of this force Hither, with answer to Doubt, How the Churches Person or Man Possesses what the Owner has: sc. As a Right: [Page] Which may be Invisible, though the things be Corporal. pa. 230
Chap. 31.
This Strengthened by being possessed for God. What would follow thereon. That such a Thing May be from Scrip­ture. What Laws say It is so Among Us. Their Ordination to Heaven. Hence they Could be styled CHRISTS-SHARE, were tryed in the Court of Religion, And Their Surreption Can be Sacriledge. The Application hereof, and Inference of Necessary Wariness, lest (if it Be not) it Should be Thus. p. 248
Chap. 32.
Praescription, (the third ground:) What it is: The Pow­er of it, Chiefly here in England. Its severall Measures of Li­mitation, by the Civill, Feodall, Canon, Common, and our Statute Laws. Its Equity, Necessity, and Conditions. The Application Hither, with Time made good for Many Praescription-spaces chiefly from M. Selden. p. 263
Chap. 33.
A Recollection and inforcement of All. Appeal to the Lawyers, That they have So understood (these things,) and Judged. Particularly to Sir Henry Spelman and M. Sel­den. p. 283
Chap. 34.
Also to Practise and what hath been Seen Done. Way made Thus to enforce Payment (not Giving but Just Pay­ment) with us in the very words of Scripture. Even Our Law Sacred: Every Minister thereof a Priest. This Sup­posed, That Mediately, but Certainly Tythes are Then with us Due in this new way Jure Divino: For God is at the top of all Just Humane Ordinances. This strengthens the other: At least we have a Dueness by Civill Right, Id quod erat demonstrandum. p. 298
Chap. 35.
Exhortation then to the discharge of Morall Duty in Just Payment; by Arguments chiefly from Scripture: As, from Moses Precepts in the Old Law, Christs in the New; Our Righteousness must exceed the Pharisees, (yet They went [Page] Thus farre,) Do as we would be Done unto, the Fear of [...] God, Examples of Just and Ʋnjust men, Do Justice, Love Mercy, Hate Cruelty, Give every one his own, &c. which are the Great good Works of the Christians Law. Close to All and Some, to let every One have That: The Magistrate declined all along, Here onely saluted; The whole meant to Private Persons; With the Conclusion. 307
 
And a Prayer. 335
 
And a Post-Script. 337

These the CONTENS:
The CHAPTERS follow.

THE INTRODUCTION:

Deo, Ecclesiae, Patriae, Tibi.

JUstice and Righteousness are among the great things of the Christians Law. They mistake Religion, who understand it to direct only in hea­venly things; one part whereof is to make Honest Men, and while the Decalogue is within the compass of our Creed, and we believe both Tables of Gods law to contain our Morall duty, the scope of one must be (rightly understood) ever to guide our outward, morall, civil conversation. It is an age now much treating of Religion, and hard to suppose that any of those who are most forward would (willingly and knowingly) leave out one half; leading men to God with neglect of Men, and trampling down all Civil righte­ousness, in order to Heavenly: This makes it the more [Page 2] needfully considerable what that Righteousness is, that we may not seem to love God with neglect of our Neighbour, or in zeal of Religion to permit our selves unjust: but so to make our pilgrimage through this world, that we leave the reputation of Honest men behinde us, and so to pass through things temporall, that finally we lose not the things eternall. Particularly, in that great and so much vexed case and con­troversie of the remainder of the Churches Patrimony in TYTHES: which many look upon as of no more Right or Wrong, to continue or withdraw the payment of, then in relieving a Beggar with an Alms at the door: They may, or may not (what any advantages shall give opportunity to) with equal liberty, and no wrong to a just Conscience, parting or not parting with as they can contrive or shift, and so take to themselves that boundless license the Apostle has given in another case;1 Cor. 7. 36. let a Man (in this) do what he will, he sinneth not: As if to venture upon the spoyls of the Church, were no more then to divide what men have taken in hunting; to defraud Religion, not so bad as to disturb Hu­mane Right, (and yet that is bad enough, and yet this is worse). And to remove the pillar (worldly) of Gods service, of no greater guilt, or doubt, or fear then to seiz upon that a man finds in his way, or to fetch Timber for building a new house, or repairing his old, from his own Le [...]anon. A great mistake! whereof the Enemy of all goodness makes much advantage; being like to reduce the Lords Ministers hereby to great streights, and to get the daily allowance of oyle withdrawn: which, though ordinary in it self, was wont to be consecrate to keep light in the Temple: by subtracting Levi's portion, I mean, to disable Levi himself from atten­ding the service of his God; As [...]. Arist. Polit. lib. 1. cap. 3. how can worldly men live in this world and follow worldly business, (as to the out­ward part to be studyed and acted by Man, even Gods ser­vice is) without worldly maintenance?

Such consideration as these awaked my thoughts to that I took to be a very needful enquiry; scil. Whether Tythes had indeed any of that we call [...] Right or good title among Men demonstrable, to hinder the subtraction by any that are [Page 3] conscientious? A Right in equity for maintenance of Gods service?Luke 10. 7. Sure, this is very likely. A right in Justice by Divine law,1 Tim. 5. 8. which apportioneth (in the New-Testament) toMat. 10. 10. every labourer his reward. [...], Cor. 9. 11. to him that preacheth the Gospel, to live of the Gospel; and this no less probable. Nay, for the very Tenth in kinde and proportion, a worldly, civil, po­sitive, humane Right; Such as might inferr the detaining, Wrong, and make it civilly injurious not to part with what is not now courteously given, but justly paid; I resolved, it might be so: I assured my self it was so: And thought I had read and observed so much, that reduced to heads, and pre­sented to view, might perswade others also: and because it was a truth I thought not known to all, and I perceived very many very much to love the truth▪ for their sakes therefore I set my self to represent what I could in haste lay together, to every ones friendlyAnd shall be heartily glad, if it shall please that God who out of the mouths of Babes and Sucklings doth sometimes perfect is prais, to magnifie his own power so much the more, as to make Me the successfull, though weak means of unde­ceiving any; for, Non quaerimus vestras opes, sed vestram justitiam, as St. Augustin somwhere said: It was not so much preserva­tion of any ones Right, as all mens innocency, that set me on work. Or as Pet. Cluniacensis spake, Nec tam ad scribendum coegerut lu [...]ra decimar [...]m, quàm damna anim [...]; not hope of worldly gain, but fear of loss of Souls. And this twofold; both of theirs who shall doe the wrong in with-holding, and theirs who shal miscarry for want of instruction, occasioned by with-holding of this worldly susten­tation from him should have hold out the light. Other means may be talked of▪ But— consideration. No other the candor of mine own bosome did assure me I should either doubt to finde, or [...]. Chrysost. H [...]m 14. in cap 4. ad Phil. t [...]m. 6. in N. Test. p 132. need to fear: for the Publick had passed nothing against, but many thingsAs in the Ordinance of Novem. 4. 1644. yet in force (beside many other) for recovery of them: The repelling of the Kentish, and many other Petitions against them [...] The ac [...]all segregation of them from other parts of Delinquents Estates, to piece out a more comfortable Subsistence for Preachers out of them: And, above all, the late exemption of them from sale among other Cathedrall Endowments, with expresse Declaration, that they shall make every Parish, where they arise, affoord 100 per an. to an able Guide of Souls. Vid Act of Ian. 8. 1649. and what can, if this do not, assure their purpose? at least a Declaration of such Intentions, which is that we are to walk by. for these dues, (which secured me on that part) besides the old established laws of the land; and for mine own private, the scales hung almost even: Not much to me whether they stood or fell, went up or down, as having not much to get or lose, to hope or fear. But for Sions sake I resolved I would not, I might not hold my peace: For Gods sake (I know mine own bosom) I was wil­ling to be at the cost of following pains, for the Gospel of Jesus Christ's sake, and endevour to preserve (if God should [Page 4] so bless weak endevours) that support had been hitherto the visible and worldly maintenance of Christ's Kingdom in ours, I resolved to dig down as deep as I could, to try and represent to view what foundation and strength that pillar had, which chiefly (as worldly still) hath held it out to the view of the world amongst us; being glad to finde:

1. That it is of that firmnesse and also age, that we have oc­casion to blesse God for hisRex au­t [...]m barbarus (cir­ca an. ab Incarna­tione Domini 63.) eum sua gente tam nova audiens & in­ [...]onsueta, omnino praedicationi eorum consenti [...]e renue­bat, nec paterna [...] Traditiones com­mutare volebat. Quia tamen de longè venorant, vitaque [...]or [...]m exigabat m [...]d [...]stia, ad petitionem eorum quan­dam insulam sylvis, rub [...], atque paludibus circundatam ab Incolu Ynsuvitrim nuncupatam (Glastenbury) in lateribus suae Regionis ad habitandum concessit. Postea & alii dic [...] Reges, licèt Pagani, comperta eorum vit [...] sanctimonia (Ioseph of Arimathea, and his 12. Fellow Apostles) unicuiq [...]e eorum unam portionem terr [...] successivè concesserunt, ac ad petitionem eorum secundùm morem Gentilium dictas 12. Hidas e [...]sdem confirmâ [...] runt; unde 12. Hid [...] per eos adhuc, ut creditur, nomen sortiuntur. Guilielm. Malmes. apud Spelm. Concil. pag 5 de Exordio Christianae Religionis in Britannia. early mercy to this Land: That almost as soon as any where; he that once said,Matth. 8. 20. Luc. 9. 58. Foxes have holes, and the birds of the aire nests, but the Son of man not where to lay his head; had here (in his Ministers, which Matth 10. 40. Iohn 13 20. whosoever receiveth, receiveth him) entertaiment and home.

2. That prudence mixed with piety, and true love of God of equall sincerity, and all dimensions with that to their nearest selves, prompted our long since dead and blessed An­cestors, to doe for him as for themselves, building the honour of his house with the same (if not better) materials then their own; and contriving to perpetuate (as they meant) true Christian Worship, by allowing it the best (they thought so) of this world, no weaker nor other support then went to the strongest of their own buildings.

3. That it hath not been yet within the power of malice, envie, pride, tyranny, fraud, wretched covetousnesse, or any other inimicall passions or powers, to scatter or divert, di­sturb or destroy: but by the blessing of God, and under the safety, power, and protection of the Laws, Levi hath had his own, and yet has his own, to live on and serve his God, as well as other men. The foundation of Gods House (his Church) stands fast and firm upon the same bottom with theirs (besides what it has from Heaven,) and beside what [Page 5] may be said for a Divine Right; the Ministers of Jesus Christ have as much of humane as any other men can plead for, that is truly and justly theirs: And this to continue, and this for their works sake, and thus the Gospel made here without It hath been warily and truely observed by some, that a Christians exer­cise of his Reli­gion here in Eng­land, for the years of some Ages past, hath not u­sually cost him above his 2d. per an. and that in his voluntary Ea­ster oblation. The rest was but the disbursing or de­livering forth what others gave long since, and it had been injust c [...] not to pay, as given and ap­pointed by ano­thers Bounty. As for Christening and Marriage Duties they were extraordinary. charge, which1 Cor. 9. 19 [...] St. Paul sometimes desired so soli­citously: It being left to our Autumn of the world, only to reap the harvest of their rich piety, who lived and made very costly seed-times before us, and serve God cheap enough at their cost and charges: They having given so much from themselves, and all the world; that we need only issue out their bounty, and in what we contribute or give forth to Christian Worship, are not so much liberall as righteous; nor doe we give, but pay. This is so, I know it to be so, I was glad to finde it so: Others gifts have made it, and great is the advantage that comes hereby to Religion and us, from those are now at rest from their Labours, and their works follow them. I confesse, I could not but all along wish so great a work better done; and sensibly complain of infirmities all along: that impar congressus between undertaking and per­formance was still in my eye; and another discouragement of another Poet:

Sumite materiam vestris qui scribitis aequam
Viribus.—

Beside that I often wished I had been able but to bring in what my self saw the Argument did afford, and in part also where it was. But when withall I considered Goats hair and Badgers skins to finde acceptance, (for the tabernacle of those had not gold and silver: when I remembred the Wi­dows mite commended, who gave of her penury; and not cold water to loose its reward, least (saith a Father) excuse should be any from want of fewell to warm. These things again refreshed and encouraged me to the tendry of small things, especially when I called to minde the Great Apostles straights, who was fain to take up with a part-bountie, when he had not wherewith to pay the whole: for Silver and Gold (saith he) have I none, (to a Beggar that wanted a Drachme) but such as I have give I thee, Act. 3. 6. A ripe Judgment will soon discern wants enough, and so do I; and that I hope [Page 6] is the chiefest fault: To have been better furnished with books, arts, languages, records, means, company, might both have strengthned many a weak nerve, and supplied ma­ny an empty vacuity. But yet if but one half hereof be strong, of what I hope none is weak; if a moity true, of what I hope none is false; there may be so much of it as it is, that he that runs may read, and he that reads and understands will not (I hope) herafter dare give leave to his Conscience to consent to that, which if he have the honesty of a Moor or Saracene, he must step back and pause, and decline; I mean, by reach­ing out his hand to withdraw that, which if he were one of the Sons of Pamphilio, he would let alone, or rather give; or, in plain terms, not dare to with-hold his Tythes, unlesse he be resolved to more then covet his neighbours Goods.

This is a point of Religion very low in an age of Religion, and for Religion pretending to soar so very high; But he that has but this, cannot upon these grounds, do this evil, and sin against his God: If there be Civil Right, there must be undoubtedly Civil wrong, (for they are Correlatives) fraud, injustice, spoil, rapine, coveting, thieving; some of these, if not all: and God grant there be not also upon the grounds, and in the reputation of the Common-law, Sacriledg also, to meddle with, and in this case to pervert what That Law ac­counts Sacred.

But to come to the Point: (Det Deus his studiis vela se­cunda meis: Or rather from more Divine extraction: Now God himselfe, and the Lord Jesus Christ, and the Holy Ghost direct my way;1 Thes. 3. 11. [...] that it may go right in a righteous businesse:) That which I then propose to my selfe to assert, is, The Civill Right of Tythes: and mark those three words, they are so many limitations.

1. Of Tythes: and so I meddle not with any other Ecclesi­asticall possessions or claimes.

2. Of the Right of Tythes: and so I meddle not with the story, which hath already been both very successefully done, and also examined.

3. Of the Civil Right of Tythes: in evident and expresse contradistinction from the Sacred.

[Page 7] Which bee it what it will, (there be enough that have en­gaged themselves pro & contra;) The light and brightnesse of the Sun remaines clear in the Firmament after a demon­stration: There is fire on Earth, and so are all their Argu­ments of force for a Divine Right, who claime by it; not­withstanding I shall have shewed there is enough in lower Secular Law amongst us to give right amongst men, by which alone we enjoy all other things; These doe not inter­fere, but mutually assist and strengthen each other; and the sticking to the one, must not needs be a present and sudden relinquishing, much lesse opposing of the other. To this Text therefore I keep my selfe, not intermedling to weaken or strengthen, or any wayes to interrupt or disturbe their course who move in another higher Sphere; let us both keep to our own, and that is a point of Prudence at least, if not of Justice and Necessity. Neither do I them, or their higher pretensions, any wrong, direct, or consequentiall: For a man may say, the silver Drachme was good and current Coyn, and yet not disparage Solomons Gold of Ophir: This Candle­burning by me, has light and brightnesse enough to guide my pen, and yet it permits and leaves the Sun a more noble and glorious Planet. The accesse of a lesser strength does not infirm a greater; nor a prop of wood a pillar of Brasse or Marble; nor yet a favourable seconding Law made here, That the God of Heaven shall be Worshipped, disparage the Bible, or Tables of the bosome, where the [...]ame was before engraven. We have many things in our Councels and Com­mon Laws, which are in the Scriptures, if no more but this, Do as thou wouldst be done unto; whichEx hoc [...]nico Praecepto satìs li­quet, unicus [...]e ex aequo jus esse red­dendum; neque enim alio quocun­qu [...] j [...]diciali libro [...]us fuerit. Hac solù [...] meminerit qui sedet in alios ju [...]ex, nolle se ali­am de aliis proferre sententiam, quàm de se ipse latam iri voluerit. Praefat. in Aluredi Leg. apud Lombard. Archaion. pa. 2 [...] hath been thought Law enough for a Judge; neither does the sticking to them There, say they are not Here, or infer a light regard of them. Who by a Lawyers pleading, a man hath broken our Law by Perjury, and is thereby guilty of high offence, can therby think the prohibitions of the Decalogue despised? or because a Judge layes hold of our Countrey Law to pu­nish Theft or Murder by, can say, He vilifies the sixth or eight Commands by which a man is at Church and in consci­ence forbid to steale? There may be a Subordination, and [Page 8] is, between Lawes and Rights, and Crimes and Things; and the laying hold upon any of those of a lower range or series, were very ill interpreted a discountenance, much worse an opposition of the highest. Not disparaging therefore the higher Right, much lesse renouncing it, (and it was needfull to make such expresse protestation) relinquishing it only pro hîc & nunc, by no meanes disclaiming, yet least of all op­posing it; I lay hold of that my Text, The Title of Civill Right, directs and holds me to, by no meanes undervaluing or giving just occasion, it may be thought I doe undervalue the Golden Noble by this, that I think I have Silver enough currant Coyn to pay this Debt, and our Secular Laws will here with Us make out a Duenesse of Tythes by title sufficient, without troubling or borrowing any thing from the higher sphere of Divine, Naturall, or Ecclesiasticall.

Being thus then confined to mine own Circle, wherin I mean to keep my self religiously without trangressing; and like there to behold little but of Right, and Civil Right, and the Dueness of this maintenance of Religion intended. Thus to be asserted thereby, It may not be amisse, it cannot but be very expedient to premise sundry things of Right or Rights in generall, the nature, ground, rise, strength, and originall first growth of Them all, with this intent and purpose: That if we can finde the reason of All, we may the better judge of These: If we doe finde these to have the same strength and bottome to rest on, that all others have (to wit, humane paction and the powerfull word of the severing all-giving Law, which alone incloses all from the common) in the same with others, we may conclude, either these have enough, or none have any; for the same Cause produces the same effect alwayes where­soever; and if here be the same ground of right, there must be the same right also, why should it not? Now to the top of that I thus propose to my selfe to aym at, I shall ascend as by so many steps; by these six following Propositions, beginning at the bottom, where all was left at first as in a wildernesse of Community, and say as followeth.

OF Civill Right.

CHAP. I.

Proposition I.

BY the Law of Nature all things areNec h [...] quidem secundum Naturam (saith S Ambrose, speak­ing of the Philo­sophers opinion of the form of Iustice, (sc.) to use what is com­mon as common; private as pri­vate:) Natura enim omnia omni­bus in commune profudit: Sic e­nim Deus generari jussit omnia, ut pastus omnibus communis esset, & terra foret omnium quaedam comm [...]is possessie. Natura igitur jus commune generavit, usurpatio jus fecit privatum. de Offic. lib. 1. cap. 28. tom 4. page [...]1. And, upon this ground, it seemes Aquinas thought it not unlawfull to re-enter the inclosure in case of a a poore mans extream necessity, there having been a kinde of tacite condition at the beginning, that the fences should hold but till there were a necessity of (in part) removing them. So by that occasion All things return again to All men. 22▪ Quaest. 66 Art. 7. Vtrùm liceat furari propter necessitatem? And much to the same purpose the more solide Hug [...] Grot. de jure Belli & Pacis, lib. 2. cap. 5. Sect. 6. And Bellarmine: Quò adusum necessarium sunt omnia communia positivè, ità ut per nullum aliud jus possit quicunque homo prohib [...]ri, quò minùs viva [...] de rebus à Deo creatu. Atque hinc est quod in articulo necessitatis non dicitur, neque est fur, qui ex quocunque loco accipit unde vivat. de Bonis Operibus in part. lib. 3. cap. 11. Respons. ult. com­mon. No propriety ascertained or cut out to any, but all left as made in a common heap for the common use of all men: As beasts come to the water and drink, but ask no leave; or asVno in loco non diu commorantur, rati gravem esse infelici [...]atem diu in eodem loco haerere. Ortel. Geog. Tab 47. & vide Magir. Geogr. p. 223. & Heylin. Microcosm p. 659. the Hoords of Tartary which depasture and stay here and there so long as their safe­ty or entertainment like them; or, lastly, as some simple In­dians, who not knowing the craft of appropriations, think themselves rich enough, in that every man hath every thing: [Page 10] So man, in puris naturalibus (lookingNatura de­dit [...]nicuique jus in omnia, h. c. in statu merè natura­li, sive anteq [...]am homines ullu pactis sese invicem ob­strinxissent, uni­cuique licebat fa­cere quaecunque, & in quosc [...]nque li­cebat, & possidere, uti, frui omnibus q [...]ae volebat & po­terat. T. Hobb de Cive, c 1. Sect 10 beyond coalition into societies, and notwithstanding any divine law, which ap­proves indeed (à posteriori) partitions made out, and streng­thens them) at first, and as God and Nature left him, is Ma­ster of Nothing; but was to take what he had need of, and leave the rest, (a very Coenobite) and Another had as much right as He, and He no more right then Another, but He with them, and they with Him, were together to enjoy the Bles­sings of God in Common.

Non Domus ulla fores habuit, non fixus in agris
Qui regeret certis finibus arva lapis,

as theTib. El. 1. 3. Poet spake, with opennesse and community enough,

Nè signare quidem aut partiri limite campum
Fas erat, in medium quaerebant, &c.

soVirg. Georg. 2 which yet La­ctantius interprets onely of an open Bounty; having no more of strict import then that of another. Flumina jam la­ct [...]s, jam flumina nect [...]ris ibant. l. 5. de Iustitia cap 5. pag [...]72 another: and the graveIn Octar. Act 2. Seneca,

—Pervium cunctis iter,
Communis usus omnium rerum fuit.

And again, and still smiling upon the Free andErant in Sa­turn [...] avo omnia communia & indi­visa omnibus, velu­ti unum cunctu pa­trimonium [...]stet. Iustin 43. unde in Saturnalibus Bo­norum communie. Golden Age,

—Nullus in Campo sacer
Divisit agros arbiter populis lapis.

Ovid Met. lib. 1. But by after acts came in Mine and Thine,

Communémque priùs, ceu lumina Solis & Aurae,
Cautus humum longo signavit limite Mensor:

as theSunt autem privata nulla Na­turâ; sed aut ve­ [...]i [...]c [...]upatione, ut qui nondum in va­cua v [...]n [...]rum; aut victoriâ, ut qui bello potiti sunt; aut l [...]g [...], conditio­n [...], paction [...], sorte; ex que sit ut ag [...]r Arpinas Arpina­tum, Tusculanus Tuscullanorum: similisque est privatarum possessionum descriptio▪ Cicero de Offic. lib. 1. Orator tells us accordingly, That nothing is by Nature inclosed to such or such a one in severall, but either by first seisure, as those that entred upon what was no ones; or by Conquest, as what the Souldier got; or by Law, Agree­ment, Com-promise, Lot, &c. and so is such a Field such a Mans, or such a Farailies.Apologet. Sect. 39. pag. 35. Tertullian observed of his time, Omnia apud nos indiscreta sunt praeter uxeres, Every one had his wife to himself, but nothing else: (It were well if our charity or goodnesse would enable or permit us ap­proach to so great happinesse;) and of the new fresh inspired Christians 'tis written, No one said, that Any of the things [Page 11] he possessed was his owne, but they had all things Common, Acts 4. 34. and (yet wanted no one any thing, for) as many as had Lands or Possessions, sold and brought to the Apostles in bank, and distribution was made to each (in charity or e­quity) as he needed.

No more then this doe God or Nature intitle any to by name & singularly: Let great Possessors look to themselvs, and make much of after inducements (which alone have lifted up their Lordships above the level;) and preserv them, & endevor to keep them whole, and as well the whole as any part: For if the Bank be cut anywhere, the Floud may finde way thereby to run over all; if there be but a beginning to remove the bounds and lay open the fences that have severed Dominions anywhere, what is begun may proceed unluckily; and what has been done by any Men, may hap to be revoked as concer­ning themselves, and then poor Codrus is as rich as Craesus, and A. B. as great as any of the greatest.

But to proceed: Say I these things as a man only? [...], private and fallible? Says not the Law the same also? Ask either of the three sister Queens; the Canon, Civill, and our Common Laws have shared in Government, some way or other of most part of the Christian world; and doe not they speak home or homeward this way?

The Canon first, aSee Sir Th [...] ­mas Ridleys view of the Lawes, par. 1. cap. 5. Sect. 1. pa. 73. wise piece, and a competent know­ledge whereof doth with us half create a Doctorship: And set aside where it superstitiously directs about things not needfull, or lightly takes in the Errours of dark times, or politikely advances the Pope to anVid. Caus. 9. qu. 3. Ca. 117. Totius enim orbis Papa tenet princi­patum. Gloss. partibus ad De­cret. lib. 3 tit 16. Nec est qui audeat dicere, D [...] ­mine, [...]ur ita fa­cis? gloss. con­tinetur, ad Ex­trav Io. tit. 4. cap. 2. universall indirect Vid. Extravag. de major. & obed. cap. 2. in fin. & gloss. porrò subesse. ibid. perhaps direct) Dominion, or blasphemously tantùm non, advances him to an immense soveraignty; Dominus Deus noster Papa, is said to be in the extravagants: In other serious and sober pieces of much gravity and great use, and thought by many to serve very commendably toward the end it pre­tends to aym at; the well regulating and ordering divers emergent cases that may arise and become doubtfull in the Catholike Church. See then there not far from the be­ginning, [Page 12] where we have, thatDiffert autem Ius naturale à [...]nsuetudine & Constitutione: Nam Iure naturali, Om­nia sunt communia omnibus; quod non solum inter eos sèrvatum creditur de quibus legitur, multitudinis autem Credentium erat cor unum & anima una, &c. verum etiam praecedente tempore â Philoso­phu traditū inve­nitur. Vnde apud Platonem illa civi­tas iustissimè ordi­nata traditur, in qua quis (que) proprios nes it affectus: Iure verò consuetudinis vel constitutionis, hoc meum est, illud alterius. Vnde Aug. Tract 6. in Ioan. Quo jure defendis villas Ecclesiae? & Dec. 1. dist. 8. The place is in Aug. tom. 9. p. 25. The Law naturall diffe­reth from Custome and (super-induced) constitution; for by nature All things are common to All, which was not only observed of those Act. 4. but formerly among the Philoso­phers: Whence Plato counts that City best governed where none covets property to himselfe: But by the Law of usage or agreement, This is mine, That anothers. And Gratian proves it by a place of Augustine, Jure Divino, omnia sunt communia omnibus, (Jure constitutionis, Hoc meum, illud al­terius, is the title of that proofe,) who speaking to those that thought themselves wronged by deprivation for Heresy, He askes: By what right they had their livings? of God, or Man? The one is in Scripture, the other in royall Lawes: Now whence, saith he, are (your) Possessions, but by the last? for by theEx hoc vide­tur quod tantum j ure humane ali­qua possideantur, [...]r non divine. With answer to an objection. Vid. Gloss. num Iure Divino. 16. first, (The Earth is the Lords, and the fulnesse thereof:) He made rich and poore alike, and preserves them alike: But by mans Law we say, This is my Farme, this is my House, this is myManebat an­tequam vinum in­veniretur, omnibus inconcussa libertas: Nemo sciebat a consorte natura suae obsequia servituris exigere. Non esset hodie servitus, si ebrietas non fuisset. As if a drunken mischance were the parent of this lasting inconve­nience. Dist. 35. Sect. 14. c. Sexto die. Sect. Manebat. Servant. And why are humane Laws the Emperours? Because by them God distributes their own to the people. Where the glosse is full, That Possessions are only founded in humane Lawes. And the Text againe, Take away Imperiall Constitutions, and who can say, This is my House, this is my Slave, this is my Living, &c: and to the Emperours Laws forbidding Possessi­on to Non-conformists, some answering, what have we to do with Emperours? Nay, and what have you to do with Pos­sessions? Replyes that Father, Quickly; for Possessions are by These: whom if yee renounce, your possessions are therein involved. This is full; somewhat dark is that be­fore ofDist. 1. c. Ius naturale. Communis omnium possessio: And before that, theGloss. Al. ad c. 1. [...]maes Leges. glosse makes a doubt upon the speech of invading anothers, Nonne Jure naturali omnia sunt Communia? How this? Is any thing anothers? And answers, True: as things are Now. Whereupon the note on the glosse; Omnia sunt And though Dominion be by Nature, at large, that all is mans: yet the distinction or partition of Dominions, that such or such things should belong to such or such a man, is from use or introduced civil compacts. Gloss. p [...]rrò sub [...]sse. Extrav. 1. de Maior. & Obed. c. 1. in fin. communia Jure Naturali: as plaine as can be.

[Page 13] This may be enough for one piece, pretending it self to be a necessary supplementall additament to the Law Christian, or drawing out the general rules thereof in particular expedi­ents (as severall cases require) for governing the Christian world: Next what sayes Justinian? He chiefly insists on one branch, indeed the matter of superinduced servitude, yet so as the length of his reason duely extended, will serve also well enough to hem in all other Dominion. In each part of his Compositions he hath somewhat tending this way. In his Institutions first, where servitude (heLib. 1. tit. 3. sect. 2. vide etiam Arist. Polit lib 1. cp. 3. sayes) is a Consti­tution of the Law of Nations, whereby, against nature, men are subject to the commands of others: (the very Syllables ofF. de statu hominum. L. libertas. And, Quod attinet ad jus civile, servi pro nullis haben­tur: non tamen & jure naturali: quia quod ad ju [...] naturale attinet omnes homines aequales sunt. De diversis reg. Iur. aut l. 32 Florentinus in the Pandects before) contra Naturam, id est, contra Jus naturale, cùm eo jure omnes homines liberi sunt, sayes the Glosser there: (for by Nature all are free) from divers Autorities. Nor are they impertinent: for in the nextQuae res (ma­numissio) à jure gentium originem sumpsit: utpotè cum jure naturali omnes homines liberi nasceren­tur: nec esset nota manumissio, cùm servitus esset incognita: sed postquam jure gentium servitus invasit, secutum est beneficium Manumissionis. Et cum uno com­muni nomine omnes homines appellarentur, jure gentium tria hominum genera esse coeperunt; Liberi, & his contrarium, Ser­vi, & tertium genus, Libertini, qui desierunt esse Servi. Instit lib. eodem tit 5. title but one, speaking of Manumissing, This freeing from power (saith he) derived it self (onely) from the Law of Nations, or agreement: for by the Law of Nature all men were born free, neither was releasing known, sith there was no such thing as Bondage. But after that by the Law of Na­tions this Bondage was brought in, then came there also along therewith possibility of Freeing. So now of one sort of men at first. there were thus made three; Servants, Born, and made free-men: (the very SyllablesF. de Iustitia & Iur [...]. L Manumissiones. of Ʋlpian in the Pandects again.) And tit. 8. de his qui sui vel alieni juris sunt: Servants are in the power of their Masters, which Instit. 1. tit. 8. Sect. 1. power is of the Law of Nations: AndInstit eod. tit. [...]. Sect. 3. & vid. F. de condict. indeb. L. Si id quod. before, Capti­vity and Slavery are contrary to the Law of Nature; for by this Law all were free from the beginning: And this continu­ed also to the Novels: For in that supplementall addition to all former provisions of Code, Pandects, and Institutions, The Law of Legitimation there tells us, thatNatura servum & liberum non discrevit, sed liberam hominis fecit prolem: and a little after; Ne (que) enim a principio, quando natura sola fanciebat, hominis (antequam scriptae provenirent leges) fuit quaedam differentia naturalis, at (que) legitimi, sed antiquis parentibus antiqui filii mox ut procedebant, fiebant legitimi. Et sicut in liberis natura quidem liberos fecit omnes, Bella vero servitutem adinvene­runt: sic etiam hinc natura quidem legitimas produxit soboles, attamen ad concupiscentìam diversio naturalis e [...]s im miscuit, Novell. 74. cap. 1. Nature made [Page 14] all children free at first, it was war brought in Bondage: Even so by Birth a [...]l were sons, and one as another at first, after-pro­visions made distinctions. And endeavouring soon after to collect and binde together all former resolutions on this great subject to be represented in our view, he bothNatura siquid [...] ab initio dum fi­ [...]orum procrea­tiones sanciret, scripsis nondum positis legibus, omnes similiter quidem liberos, similiter autem produxit ingenu­os. Primo nam (que) parentibus primi filii, similiter au­tem legitimi à natura [...]iebant: bella vero & lites atque libidines & con cupiscentiae causam deposue­runt ad aliud schema; serv tu­tem namque in­venit bellum, Naturales autem castitatis casus, &c. Novell. 89. cap. 1. repeats this Assertionlb. cap. 9. & be­fore. Liceat igitur (sicut praediximus) patri si legitimam non habeat sobolem, filios restituere naturae, & antiquae ingenuitati. Novel. 74. cap 1. &, offerre Imperatori precem, hoc ipsum dicentem, quia vult Naturales suos filios restituere naturae & antiquae ingenuitati, & legitimorum juri. cap. 2., and Phrases, to Liberty, to be a restoring to Nature. Now that what is thus dispersed of freedom and servitude onely, may be enlarged by like reason to all Com­munity and restraint, we are beholding to the Glosse on Bella, captivitates, servi [...]utes, postliminia, manumissiones, ut sacrosancti fint hostium legati, Regna, Dominia, Obligationes, Acceptilationes, Constitutiones, sunt juris Gentium. Gloss. 13. Bella. Instit. 1. tit. 2. which stretches out one place, as all other may, thus. Wars and servitude are contrary to the Law of Nature, said the text; and what is meant by Wars? Manu­mission, Restitution, Rule, Dominion, and such other things, sayes Cujacius on the place: And upon the other of tit. 3. §. 2. Slavery is by the Law of NationsGloss. Constitutio juris Gentium, a., therefore (he in­ferrs) Domination is from the same; and therefore, say I a­gain, not from Nature. Wherein the text also seems to bear him out (and me;) for thusEx hoc jure gentium introducta Bella, discretae Gentes, Regna condita, Dominia distincta, agris termini positi, aedificia collata, commercium, emptiones, venditiones▪ locationes, conductiones, obligationes institut [...]: exceptis quibusdam quae à jure civili introductae sunt. F. de Iustitia & Iure, L. 5 Nam Dominia rerum sunt de Iure Gentium, and that Text alledged for it. Glos. generali Iuri▪ ad Cod. 1. tit. 22. l. Omnes cujuscu [...]que. Hermogenian in the Pandects. By this Law of Nations (whereby Manumissions were possi­ble, as before) were Wars brought in also, Provinces distin­guished, Kingdoms erected, Dominions setled, Fields enclo­sed, and many such superinducements, which Nature in her Dictates never acquainted with: the good wisedom of Man having found them out for quiet of societies, and the great goodness of God and religion approving these humane inven­tions.

Yet farther, and from the same Volumns it is observable, that of that first universall freedom, some foot-steps are by the same Emperour allowed to remaine yet not cleane wiped [Page 15] out, and of that naturall liberty of things, never yet brought within the bondage of any accessary restraint, some evident both signs and instances: For,Instit. 2 de rerum divisione in Princ. & F. de divisione rerum. l. 2, 3, 4, 5. Quaedam naturali jure sunt communia omnium, (yet in despite of any offered in­closure) quaedam publica (id est,) popiclica, sc. omnium popu­lorum, as the glosse) quadam universitatis, quaedam nullius, quaedam singulorum, so and no more. And hee gives instance in Ayr, water, Sea, Shore: who has endeavored toVnderstand, in the Empire: for some kinde of appropriations of some of them has been with us made to the King, as shall be said. inclose and appropriate these, or not given to every man to make use of their bounty, as his occasions should bring him to need them? The River to row, the Haven to entertaine, the Bank to Land, Theaters, Temples &c. Hee might have added also High-wayes, which have never yet cast off their opennesse of former freedom, or come with­in the bonds of my private restraints; but in all Grants been still reserved and retaine to themselves yet what they were at first, and are, and ought to be, viae publicae, without any allowed restaint, and for every mans use that can use them Crafty appropriations have or can no more hedge in these and some other gifts of God and Nature, (or God by na­ture) then the rich can impale to their own use the Sun­beames, or cause the same light not to shine to their poore Neighbours comfort, as well as their own, or the inriching raine to fall upon Their own Land, and leave the poore mans barren.

Thus the current of Justinians works: That wise Law that kept the World in awe, durst never, never did declare against all Community. Plainely it speaks things left at first Common, Servitude is by after-inducement; Property as Servitude, and no such universall restraint yet; but some things remaine as free as the Wood for the Bird to come and sing on what branch she pleases, or as the Sun-beames for which the poore man payes no rent, or dreads no quarter day; or like the Fountaine to the wearyed Passenger, hee may drink what he will, and leave the rest, and no one que­stions, interupts or molests him.

Come we now nearer home; and what said here our Doctor Bracton? he was a great Civilian; and some say not [Page 16] only so, but such, a Doctor of the Civill Law, to bring home (as he has) and mixe many of the Effata of that more Civill Rule with our barbarous Customes. 'Tis true, he makes of­ten use of the Code and Pandects; and that which is more, many of his Rules are borrowed verbatim from them, and so does his Follower, and in most transcriber Fleta also; though I wil not enter much dispute of their Doctorships. They are to us a kinde ofScriptores hujusmodi apud nos, (as these, Thornton, Britton, &c.) inter eos quorum doctrina pro ornamentis tantum orationis, in disputationi­bus juris nostri forensibus scho­lasticisque esse▪ possiut, nec au­thoritatem in se ferant, vulgò cen­seri solent; ídque non sine authori­bus magnis. Quod meâ sententiâ (tantorum viro­rum pace dictum fit) non citra errorem ex inco­gitantia ingen­tem ortum pro­pagatumque. Tametsi enim ob vetustatem ac intervenientes quae insequutae sunt juris mutationes admodum multiplices; authoritatem in quamplurimis jam non praestent ejusmodi quae decisionibus, Iudiciis Consultationibusve per se solùm sufficiat, innumera nihilominùs continent, quae aut etiamnum manent integra nec omninò abrogata, (ut in materie maximè feudali, criminali, &c) aut quae mores majorum legesque avitas mu­tationibus ejusmodi priores copiofius ostendunt. At (que) ita certètam authoritatem è qua Iuris interpre­tatio pendeat eos habere manifestò in disputationibus forensibus scholasticis (que) est agnoscendum quam Ornamento esse. Selden. Dissect. ad Flet▪ cap 1. Sect. 3. p. 454. Oracles, and borrowing their In­spirations from where before (wherein they were at least well studyed, if not graduated,) wee are not to wonder if they wrote much the hand of that Copy according to which we see they did practice to write. The former first in very perfect imitation, instances chiefly, as Justinian did, in super­induced servitude, whichDe Rerum divisione. lib. 1. cap. 6. Sect. 3. he sayes, is by the Law of Na­tions, whereby against Nature, one man is subject to ano­ther: And the like assertion he lets fall (by the way) not longLib. eod cap. 9. sect. 3. after (potestas Dominorum in servos à Jure gentium est:) with the same enlargement to all restraints as the Ci­vilian taught:Lib. eod. cap. 12▪ Sect. 4, & 5. Add whereto what a little before: Manumissiones anima juris gen­tium sunt; Est autem Manumissio datio libertatis, i e, detectio secundum quosdam▪ quia libertas quae est de jure naturali per jus gentium auferri non potuit, licet per jus gentium fuerit obsuscata Iura enim naturalia sunt immutabilia.—Item ex hoc jure introducta sunt Bella, cum ad tuitionem patriae inducuntur à principe, uel propulsantur violentiae. Ex hoc etiam jure gentium discretae, i e. separatae vel divisae sunt gentes, Regna condita, & dominia distincta. Et non sunt dominia de novo inventa de jure gentium, sed ab antiquo, quia in veteri Testamento, aliquid erat meum & aliquid tuum, & unde tunc erat prohibitum ne furtum fieret, & etiam tunc praeceptum suit, ne quis mercenarii sui retineret mercedem. Ex hoc etiam Iure gentium agris sunt termini positi, aedificia sunt coliata & vicinata.—Et generaliter jus gentium se habet adomnes contractus, & ad alia plura, 16 cap. 5. sect. ult. Much to the mind and words of what was before from Rome. Some things are common, some publike, some Corporations, some no ones, and some every ones: And as by Right remaining yet Common, and according to Nature, he instances in Water, Ayre, Sea, and Shore: which retaine their primitive universall freedome, and were ne­ver yet in bonds to any.

[Page 17] Fleta treads for the most part his steps, and it may not be pleasing to lead the same dance over and over, or to re­present as a new Show, that which hath in it nothing of variety and novelty; wherefore I onlyVid. lib. 1. cap. 3. Sect. 1. & ca. 5. Sect 3. 6. referre to him. And so for Dr Cowell late of Cambride, who professing to mould our Laws according to the patern of the Imperiall (Institutiones Juris Anglicani ad methodum & seriem Insti­tutionum imperialium compositae & digestae, is the Title of his Book:) In the second, third, and fifth Titles of his first Book, and first of the second, has the same parallel things, and near words; shewing indeed, that the Laws were pa­rallels; and, which was his Plot, in these things both alike. I may not have omitted the Student to his Doctor; the Au­thour is both Grave and serious, and were he in transmitta­table Language, might gaine with time, and more Authority after some Centuries then he has in present: Besides other places, He delivers himselfe in hisDial. 2. cap. 3. fol. 64. Book thus: It is to be knowne, for satisfying the doubt how the property of a mans goods may be altered (as in an Out-lawry) without his consent; that, The property of Goods (he might have said, of Lands, the reason is the same; I beleeve he meant both,) be not given to the Owner by the Law of Reason, nor by the Law of God, but by the Law of man, and is suffered by the Law of Reason, and the Law of God so to be. For at the be­ginning All goods were in Common; but after they were brought by the Law of man into certaine Property, so that every man may know his own, then were conditions assigned; and so he proceeds to resolve his doubt, by that one condition (here) was then, that if a man were Out-lawed, he had no­thing as a man not to be trusted, or an enemy &c.

Many other such plaine Assertions are partly in This, and These, and partly in other our next to Oracle-Lawyers, which joyned to what before; give, if not assurance, much probabi­lity that the truth is, and the nature of things was at first, as I say, or else there would not have been such conspiring testi­mony. Agreeing Witnesses is among the strongest of proofes, and a likely evidence that they all speak the truth, who all speak the same; and as in neighbour Buildings [Page 18] their help and assistance is mutuall, and ones strength strengthens another; so here. The grave Rules these have been, and prevailing Mistresses, if I may so say, whose words have been obeyed to sway a good part of the past and present Christian World: and they should not have been empty Rat­tles, (Vox & praterea nihil, as he said of the Nightingale,) mear speeches or noyse that went for nothing: The Canon for the Church, the Civill for the Empire, and our Civill for our Monarchy; what can we look for more, or more Authorative, after so great and honourable attestations?

Neither hath the Realty of things been otherwise in ex­istence sometimes, then according to the matter held forth in these Rules: There have been and Are, that have lived and Doe live accordingly: persons so composing themselves that they remaine happy without inclosure or guard, home or own, and they never saw yet reason (which they obeyed) to remove them from the benefis, (esteemed such, with all incon­veniences) that they found and had in this they still thought their most expedient Community; some simple Indians re­taine it to this day; they will not exchange their Liberty for our Wealth, nor their native, as we count it barbarous free­dom; for whatsoever we esteeme better, richer, surer, and nearer, comming unto us under the name of our magnified Civility. They have not our advantages, so neither our in­conveniencies, our enriching Property, so neither our emer­gent vices and troubles. Take away this, there would be no place left for many of those we call Crimes that trouble the World, nor temptations to others, which it might be our happinesse to bee free from, and such as would perhaps goe much toward the balancing of the benefit of our Riches.

Besides, the Primitive Christians lived Thus too: Wee Vid. Act. 4. 34 & compare Eus. Hist. Eccles. lib. 2. cap. 16 pa. 27. know they did; and many principles of that Religion dispose thitherward. (Mark the just extent of my word and meaning; I doe not say, Thither; but, Thitherward, That way.) They began our religious pattern in aGlorifying God for your professed subjection to the Gospel of Christ, and what followes? [...]: for the simplicity of your Communion to the Macedonions and All, 2 Cor. 9. 13. Community, [Page 19] and did not build so evident certainty any where for awhile, as in a flat Level. Give us their simple Charity, we should do the better without our quieting boundaries, or inriching proper­ty; make us so meek, humble, gracious, & disposed to be help­full to one another,Malebant tenui contenti vivere cultu; as Cicero of his Aratus: quod est proprium no­strae religionis. Lactant. de Iusti­tia. lib. 5. cap. 5. vid. Luc. 3. 14. Phil. 4. 11. 1 Tim. 6. 6. 8. Heb. 13. 5. contented with any thing, charitable to All, as they were, we should the lesse misse, or perhaps not complaine of any misse at all of our troublesome wealth, nor the scale swaying to any sensible incommodity by that losse, taking in the amends of our then from many vices and trou­bles most certainly freeing Community. For,Nondum ve­sanos rabies nu­daverat enses: Nec consangui­neis fuerat di­scordia nota: This at first: but after, Tum Belli rabies, & amor suc [...]ss [...]t habendi, upon inclosures, and in Iupiters dayes, when Saturn was gone: Ille malum virus serpentibus addidit attis, Praedarique Iupos jussit &c. id est, odium & invidiam & delum insevit hominibus, Id ibid. Covetous­nesse would be a name, theft not in nature, wrangling Suites vanish, fraud remove, guile be a stranger, no injuries known or possible. Those many sprigs that shoot out of that accur­sed root, Amor sceleratus habendi, would not only be lopped off, but the root it selfe, the disorderly affection taken away, even to an impossibility; and with no riches, much innocency, great content, strange quiet, a banishment of many vices, and plenty and enough to every one, with our first primitive sim­plicity.

Though I confesse, this was either not generall, or lasted not long with those Primitive Christians neither, for by Act. 11. 29. we have private abilities fruitfull in beneficence; and Collections for the poore, which many wayes supposes propriety, 1 Cor. 16. & 2 Cor. 8. and reliefe even amongst brethrenIam enim cessarat illa com­munio & di­stributio donorum de qua dixi. Creverat enim numerus Christianorum ad plurima millia inter quae impossibilis erat hac communio. Cornel, a Lap. in Epist. Iacob. 1. ver. 27 pa 72. Jam. 2. 15. 16. 1 Joh. 3. 17.

But the meek Essenes continued so; whose precepts (ma­ny of them) hold much correspondency with the ancient Christians, and if they were not such, or their forefathers immediate, many have been deceivedSo St Ierom. expresly Catal. Illust. virorum in Philone. pa. 102. rom. 1. Euseb. Hister. Eccles. lib. 2▪ cap. 15. 16. Huic libro Philonis (de Essaeis▪) Suidas titulum tribuit▪ de vita Christianorum. Christophorson▪ annot. lb. who thought them so. Now these trod in the steps of Justinian [...] [Page 20] and from all servility at first, which they hated as unnaturall and unhumane, they went on to place in the same cause All dominion or domination. Two sorts of them there were; The Students, and the Practiques: (I compare them in some things, with the Secular and regular Priests; some are for Conversation, other should be more for Meditation and Contemplation;) but both of them went together in This same way: Take account of them of those are likelyest to en­form us. Philo an Alexandrian Natione A­lexandrinus, de genere Sacerdo­tum. Hieron. Catalog. V [...]i paulò supe­perius. So in the Pre­face to Philo's works. p 1. Jew, and I think Priest, tells of theIn lib. de vi­ta contemplat­pa. 696. former: That they are not served by Ser­vants, which they account quite besides natures intention, who made all Free: It was the greedy iniquity of some Very pathe­tically described by Lactan. Fi [...]m Non tantùm enim non part cipa­bant aliis [...]i quibus ali­q [...]id affluebat, sed aliena quo­que rapiebant, in privatum lu­crum trahentes omnia: & quae antea in ufus hominum etiam finguli labora­bant, in pauco­rum domus con­ferebantur. Vt enim serv [...]tio caeteros subjugarent, inprimis necessaria vitae subducere, & colligere caepe­runt, eaque [...]irmiter conclusa servare ut beneficia caelestia facerent sua, non prop er humanitatem quae nulla in ipsis erat, sed ut omnia cupiditatis & avaritiae instrumenta co [...]raderent. Leges sibi et [...]am justitiae nomine munitas, iniquissimas, in justissimasque sanxerunt, quibus rapinas & avaritiam suam con­tra vim multitudinis tuerentur. Tanttum igitur authoritate, quantum viribus aut opibus, aut malitia praevalebant. Et quoniam nullum in his justitiae vestigium fuit, cujus officia sunt humanitas, aequitas, mi­sericordia, jam fuperba & tumida iaenqualitate gaudebant, altioresque se caeteris hominibus satel­litum comitatu, & ferro, & insigni veste faciebant. Hinc honores sibi, & purpuras, & fasces invenerunt, ut securium, gladiorumque terrore subnixi, quasi jure dominorum perculsis nec paventibus imperarent. lib. eod. cap. 6. domineering Tyrants, who having gotten power into their hands (perhaps intrusted) changed their rods into Swords, and turned their own Canon given for defence against their own Subjects, and having gotten their fellows down, kept them (by strength only of their cruell clutches) and of no more right then force, continued the Usurpation over their subdued fellows. With them, no such thing; for no servant, but all free; any farther then they did in love serve one another: So the service was performed (mark, their servants then were in lower condition then ours; slaves or worse, which made the condition seem to soft and merci­full men so unreasonable and hard) but by no Tyrannicall constraint: the younger served the elder, they took care of the younger, each in love; and no feare, scarce awe: But every one made necessary Offices his voluntary duty, and thus service with no commandement. This is the substance; I stick not exactly to the words: And for the other sort, the same Author in another Book; Servants among them [Page 21] (saithIn lib Quòd omnis probus li­ber, p 678. he) they have none but they doas Gal. 5. 13. in love (as the other) serve one another. They hate dominion both as un­just and impious, as clean contrary to Natures law, who made all men equal, not onely in name, but in reality. Joseph the son of Matthias gives the sameAntiq. I [...]d. lib. 18. cap. 2. account; andMontagues Acts & Mon. cap. 7. sect. 73. &c. others: and for the inlarging this restraint from service to any Domi­nion else unlawful, as Cuiacius did, very pleasing is that the last named Hebrew Priestlib 2. cap. 7. recounts of them in his Histo­ry of the wars of the Jews: They contemne (saith he) riches, and all things with them are common, neither is any among them richer then other. They have a law among themselvs, that whosoever will follow their Sect (compare that of Christ with it, Luke 14. 33. Verily, verily, I say unto you, whosoever forsaketh not all that he hath cannot be my Disciple;) must make his goods common to them all; for so neither any a­mong them shall seem abject for Poverty, nor any great for Riches; but they have fitting equall Patrimonies as brethren. They hate Curiosity, &c. They have among them Procura­tors to oversee, (the very picture of the after-Coenobite, and according to the import of that word) and use all things a­mong them for their common benefit, and every one seeketh the good of all (compare Phil. 2. 4. Minde not every one his own things, but every man also the things of others:) and those (Procurators) are chosen from among themselvs by common consent. They have many Cities, and if any of their Sect come unto them from anotherPatent eo­rum sodalitia [...]o­minibus etiam advenis idem in­stitutum servanti­bus. Omnibus unum est prom­ptua ium, unde vestitus & mensa communis sumi­tur, &c. Philo lib. eod. pag 679. place, they give him any thing they have, as if he himself were owner there­of. (Let the Catechumene communicate with his Catechist so, [...], in all things. Gal. 6. 6.) And, in brief, they go in boldly to those whom they never saw before, as if they were familiarly acquainted with them: And therefore when they take a journey, they onely arm themselvs against thieves, car­rying nothing else for their journey. (Compare again that part of our Saviours directions to his Commissioned and Iti­nerary Sanhedrin, Luke 10. 4. Carry neither purse, nor scrip, nor shoos, and salute none: and into what house ye enter, first say, Peace, &c. and in the same house continue eating and drinking what they bring, &c. but more plainly to his Twelve, [Page 22] (heads of the Tribes, and each a resemblance of the Hebrews Policie,) Provide neither Gold, nor Silver, nor Brass in your purses, nor Scrip for your journey, nor two Coats, nor Shoos, nor Staves, Matth. 10. 10.) In every city one is appointed to take care of such guests, and see they want not cloaths or o­ther necessaries, which they never change till altogether un­usefull: (yet fear no want, for they have a Wardrobe every­where whither they come:) Amongst themselvs they nor buy nor sell, but he that hath what may pleasure another, imparts it, and so taketh without leave of him whatsover he needeth. Their labour is great to maintain this expence: their fare the same, eaten in publick, and with much reverence and devout thanksgiving: and though in all other things they are chiefly tyed in obedience to their Governours, yet in giving they may may be as open handed as they please, save to their kindred, where they must have leave of their Supervisors.

Is not this a strange happy life! beyond rich! obscuring the glory of Caesar and Crassus! if not what ever else is here among mortals! and like to last too, by their perpetually supplying industry. Are they not more admirable for this, saith Philo, then for any wealth and abundance? I confesse I was fain to stretch my patience much to go on so far reciting, being like to stop many times by the way, my affections indeed scarce suffering my intellectuals to make their orderly paces forward; for I never saw, me think, in all my life any thing more admirable, or so much toward the best on earth, and be­yond Royal and Imperial. And all this with little, with no­thing: as the Apostle speaks,2 C [...]r. [...]. 10. Having nothing, yet possessing all things. Give us, I say again, but gracious hearts, contented and humble mindes, lowly affections, and true Christian qua­lifications, fearing God and hating Covetousnesse, and we might be soon thus rich all, beyond the wealthy; All the poor in the world as their Lords, (and yet they never the worse) for, (no one greedily griping any thing) every one would shortly be Lord of all things. And to shew that this may last, (if we had but truely loving and not self-seeking hearts, such pliable and humane mindes, as men may have) the same Joseph tells us, that the same Essenes kept it from all [Page 23] Antiquity, being herein, faithGodw. An­tiq. Heb. lib 1. cap. 12. pag. 57. another, like the Pythago­reans, who held it also in their way, and yet wanted some good principles tending this way, that were both in the Essenes, and are in our Religion.

Behold here this speculation reduced to act, that what I said may then be, because it has been, and is: both hereto­fore and now the stage of this world represents examples in being to every ones veiw and consideration. Neither doth this contradict the Scripture: we shewed before thence some glimpses of light rather to countenance it, but there is no­thing sure that forbids Community, or commands that Sepa­ration which breeds propriety in either page of the Old or New Testament. For the Old first; where the Story of the Creation tells us indeed,Gen. 1. 28, 29. Deus humano ge­neri generaliter contulit jus in res hujus inferioris naturae statim à mundo condito, atque iterum mundo post di­luvium reparato. Hinc factum ut statim quisque hominum ad s [...]o [...] usus arripere pos­sit quod vellet, & quae consumi po­terant consum [...]re. Gr [...]t. de Iure Bel. lib. 2. cap 2 sect. 2. pag. 127. The earth was made, stablished, & adorned, and the Parent of the Donation (all that was) that God blessed Man, and bade him Multiply, and have Dominion over the Fish of the sea, the Fowls of the air, and every thing that moveth upon the earth, with Herb bearing seed for food, and Tree bearing fruit for meat; and Adam particularly put into Paradise: But what parted place any one should have, or the fruit or royalty of so much ground with exclusion of others; or that a partition should be made, One to have This, Another That, this we read nowhere. After when things were (as it appears after) separate, (for▪ Cain and A­bel had their severals, Gen. 4.) and after that again confound­ed by the Flood, the following restitution to former state, if we view the renewedGen 9. 3. Every moving thing that liveth shall be meat for you, even as the green her [...] have I given you all things &c. So far from giving any h [...]nt of Appropriations, that from things, so as they are here cast down in a heap, some fetch argument for a Community: as in Bellarmine de Bonis oper. in partic. lib. 3. c. 11. E [...] certè non ob­scura rerum pla­nè communionis vestigia occurrunt in donatione illâ Numinis, Gen. 9. 2. saies Mr Selden Mare Claus. lib. 1. cap. 4. patent of the supreme Lord, had not much more then the former, but spake much in the free and general language of the first donation: And if Noah's Posterity had after any Severals, (as we know they had) they were left to divide by humane discretion, and each to have no more then what by the Providence of God their own wise­dom could mutually asscribe to one another. Which was done, Gen. 10. (Hitherto we finde no Jus Divinum what eve­ry one should have:) for the Islands were divided, and 'tis shewed by whom, ver. 5. and in Pelegs time the land (which I take to be the terra firma) ver. 25. (and ver. 32.) whence he had his name of Peleg, that is, Division. After what was [Page 24] in the promise to Abraham, or Levitical Law, or execution in the Book of Joshuah, all know; but nothing to our pur­pose. Come we then to the New Testament: Is there required any such thing as this distribution, or bounds set, or ap­pointed they should be set, what should be whose? If it be, 'tis very obscure, and the lines so dim that mark it out, that they and it are by any ordinary eye very hardly discern­able. Our Saviour bids, give to the Poor, and to Caesar, and to every one his own, and many such things, supposing Pro­priety, but then the Propriety was before; He nowhere raised fence, but intimated and insinuated it should be kept. They would once haveIohn 6. 15. made him a King, whereby he might have grasped dominion into his own hands in gross, which he might have afterwards given out by retaile: But this he per­emptorily (if not scornfully) refused, becauseIohn 18. 36. his Kingdom was not of this world. The manner and course of his life we all know, and that we must make the best of it, to advance it above Indigency. He often complaineth he had not a house to put his head in, and was fain toMatth 17. 27. Observe: And this he did that he might be able to satisfie an un­just order: for the children were free, of whom he was: So far from countenancing the establishing of any new Power he might seem to set up, that meerly because his quiet­nesse should not give offence ( [...]) he readily submitted to the unjust power that was. Sure his King­dom is least of this world and worldly Do­minion As sure, his Religion rightly taught, or Power duely used, will have no opera­tion to hurt any Powers, if just, be they what they will: Be subject to humane Or­dinances as yee finde them, is the pith of the whole; Be contented and quiet, much of the duty of a Christian, as to the pub­lick. create as it were a doller to pay his tribute: so little he medled with wealth or worldly Possessi­ons. There was some of this very work brought unto him, anMan, who made me a Iudge, or a Divider over you, Luke 12 14. To decline what in the same expresse syllables, (as it is in the Septuagint) was objected to Moses, Exod. 2. 14. Contentus dare Praecepta genera­lia, quae ad res quasv [...] accomodari à vole [...]tibus facillimè possunt, singulorum negotiis me non im­miscebo. Grot. ad loc. Inheritance in gross, which he was requested to be so chari­table as to divide, to part strife between bre­thren; but he would not intermeddle for that reason which also constantly swayed with with him in his whole course, he would be no medler, no divider of Inheritances. He did not finde any fault with the thing done, for­bidding it should be put in practise by others, but rather approves of what he found, by the just measure of his Acts and Words heeded: for, (argue from his silence) he laid not the block of any prohibition in the way, having just occasion; permitting there by, no doubt, other persosn, Corporations, States, or Laws to do what they should think good, (which is enough against [Page 25] all Levellers) and he approves and ratifies what they shall do for their convenience, by the same reason for which he would not divide, for neither way would he meddle: Nor should the Court-Christian interpose in secular Affairs, or Religion disturb the quiet world, but leave things as they are found, and let worldly men dispose as they will their world­ly Inheritances. Considering (in our depraved estate) the Corruption of our Nature, it can hardly be conceived how we should do well, or frame to quiet (so many as therebe of us, and of manifold mindes and tempers) without partition, which might render it necessary he should (à posteriori) ap­prove those by Laws the Community of men shall make for quietnesse and stinting the Common, which he does in sub­mitting, and commanding to submit to the Powers that were: But that he should take the matter into his own hands to for­malize properties, or erect or give order for any set Courts to order or dispose of them: This I believe will never be made good from any thing He or his Apostles did, or 'tis said, that they either effected, or intended, or gave any necessary com­mand for any such thing, or so much as that Partitions or Pro­prieties must be, from any leaf or line of the Old and New Testament. They may be, as shall be said next, and these do not contradict but confirm; but that they should and ought, this is not shewed.

Wee see then, as to the first Propsiotion, that Propriety is not necessary, nor was it natural: The Canon, Civil, and Common Laws found all left in a Community: some simple Nations continue so still: the first Christians began in a level: The Essenes held it up long with great applause, nor is any thing in Scripture found in prohibition of continuance, if we had but gracious humility, and true love to make us capable of so great a happiness. But yet then we are in a wildernesse: And what must we needs stay there? Nature indeed made not, commanded not partitions, nor God (the revelation of whose will is wholly spent at utmost in toleration.) But may not the wisedom of man proceed further by Gods permissi­on? though not ex vi praecepti, by force and impulsion of any strict command, yet by taking the leave, seems given, in that [Page 26] it is not denyed: Questionless, yes, HumaneRatio nihil aliud est, quàm in corpus humanum pars divini Spiri­tûs mersa. Sen. ep. 66. Prudence is a ray from God, shining dimly in the bottom of mans earthly heart, and has not hitherto directed all men amiss that by the light thereof have found out any Good; their own, or that they had an own, or that an own was, or might be. God loves man so well, that he loves every Good of man: the Good of Society, the Good of Order, the Good of Peace, the Good of Benefit, even to that outward Bestial part, where­of yet the divine Soul is a blessing and sanctifying inmate. All which Goods being so nearly concerned and highly advanced by, This is Mine, we cannot look upon our good God as carelesly neglecting, or enviously nilling that man should reap any fruit or benefit of that wisedom (which is also his gift) whereby he is enabled to finde out any of these Goods so much for his glory; whence, with much likelyhood, ariseth this second Proposition, That although God and Nature left things at large, yet

CHAP. II.

Propos. 2.

THere may be impalingThough to necessity all is still l [...]ose positive, yet for Dominion, only negative, sc. that they are not actu­ally divided, sed tamen permissum est ut divideren­tur, si id ipsi ge­neri humano vi­deretu expediens. Quemadmodum cùm paterfami­lias moritur, & f [...]ios in commu­ne relinquit hae­redes. haereditas quidem est eis ex testamento Communis, sed negativè, non positivè: Et ideò nihil pro­hibet, quo mi­nus eam inter se dividant & una pars uni­us, altera alte­rius efficiatur propria. Bellarm. de b [...]n. oper. in partic. lib. 3. cap. 11. propriety; for else much of the Good even of Good things would be lost; the strong ('tis like) would tyrannize over the weak, the lazy partake as much fruit of his vice, as the industrious of his dilgence; at Harvest, he that laboured should reap no more then he that loytered; and supposing the most evidently seene corruption of our nature, that Minimè au­tem utile homi­nibus fuit quod hujusmodi habuerint in Omnia jus Commune. Nam effectus ejus juris idem paenè est, ac si nullum omnino jus extiterit. Quanquam enim quis de [...]e omni poterat dicere, Hoc meum est, Frui tamen ea non poterat propter vicinum. qui aequali jure & aequali vi praetendebat idem esse suum. Th Hobbius de Cive, cap. 1. Sect. 11. & vide cap. 2. Sect. 3. which should be Every ones, (to take care of and enjoy) would be No ones: Nor could confusion but be the fruitfull mother, bringing forth many daughters worthy her selfe. Besides, argue as Christians: The Law would be superfluous, the Commandement evacuated, Thou shalt not steale, No­thing; for there would be nothing to steale, or have. No poverty, no riches, no purloyning, no restoring, no fraud, no injury, no wrong, no right, which are all founded in Meum & Tuum, & would be taken away even beyond the very roots, to an impossibility, if these be taken away. No charity to Neighbours, no hospitality to Strangers, no bounty to Friends, no more then most magnificent Christian bounty in relieving Enemies, if &c. Yea, the exercise of all Christian and morall vertues, that act about giving and receiving, were not only suspended, but presently deprived of their very be­ing. No making bags which wax not old, which our Saviour [Page 28] counselled:Luke 12. 33. no collection for the poor Saints which are at Hierusalem, 1 Cor. 16. which the Corinthians used: no laying of a good foundation for the time to come by rich distribution, which Paul counselled;1 Tim 6. 17. & he was himself superfluously care­full of paying that of debt Onesimus to Philemon; Philem. v. 18, 19. he neither did, nor, as things were, could pay, because he, nor any body else, had any thing to pay. A hard word for Creditors, there could be no paying of debts: An impoverishing word for States, farewell all Tributes: The rich mans gold Ring and costly Apparell had been nothing else but a crime, or a gracing encroachment upon others Rights, which yet St James blames not,Iam. 2. 2. but preferment in Religion hereby: And, the poor man an impossibility, and empty name, a Nothing, for­asmuch as poverty is by comparisons, (felix nemo nisi com­paratus, nor yet miserable:) and this must be with the Rich, which yet is not, nor indeed One nor Other, not Any one that has Any thing. In a word, all Sentences, Admoni­tions, Exhortations, Rules, Decisions, suppositions of Scrip­ture everywhere could nowhere take place, unlesse the Community left by God and Nature, might be ascertained and severed by the following prudent constitutions of men, and after-Lawes; and a good part of the Book of God would bee but an empty Letter, without sentence or sence, if all those words stood voyd of meaning, which doe not require, but suppose appropriations. Take together what Mr Rogers has, plaine but substantiall upon the 38 Article of the Church: The Article it selfe, is in direct affirmation of what we say, That the riches & goods of Christians are not common, as to the right title and possession of them, as the Anabaptists vainely talk, though every man be bound to distribute largely: (agreeing herein with the 65 Article of the Church of Ire­land:) upon the first position, whereof thus he: Against Community of Goods & Riches be all those places (which are in­finite) of holy Scripture that either condemn the unlawful get­ting, keeping or desiring of Riches, which by If any that is called a brothrr be a fornicator, or covetous, &c. with such eat not, 1 Cor 5 11. Covetousnesse, let it not be once named among you, as becometh Saints, Eph. 5. 3. Beware of Covetousnesse, Luke 12. 15. which is Ido­latry, Col 3. 5. the root of all evil, 1 Tim. 6. 10. Let your Conversation be without it, Heb. 13. 5. Covetousnes, [Page 29] Let none of you suffer as a Th [...]ef, 1 Pet 4. 15. Servants, no pur­loyners, Tit 2 10. Theevery, With a brother extortio­ner eat not, Cor. 5. 11. Nor thieves, nor cove [...]ous nor extortione [...]s shall inheri [...]e Gods Kingdom, 1 Cor 6. 12. extortion, and the like wicked means many do attain: or doe commend Blessed to give, rather then to receive, Acts 20. 35. yea and that thing ye doe to all the Bre­thren throughout Macedonia, 1 Thes. 4. 10. If a Bro­ther or a Sister be naked and desti­tute of daily food &c. and yee give them not th [...]se things are need­full for the body, what profiteth? Iames 2. 15, 16. & Vide 1 Corinth. 9▪ 6. liberality, If there be any that provide not for his own, and namely those of his own houshold, he denyeth the faith, and is worse then an Infidel, 1 Tim. 5. 8. f [...]ugality, From him that would borrow of thee turn not away, Matth. 5. 42. Lend, looking for nothing again, Luke 6. 35. free and friendly lending, Let him that stole steal no more, but rather labour that he may have to give, Ephes. 4 28. Wee warned you, that if any would not work, hee should not eat, 2 Thes. 3. 8. honest labour, and lawfull vocations to live and These hands have ministred to my necessities, and those that were with me, Acts 20 34. Wee laboured day and night, that we might not be chargeable unto any of you, 1 Thes 2. 9. thrive by: All which do shew that Christians are to have goods of their own. Thus far Mr Rogers according to his Text, of which thing there was so much regard that a little before the composition of those Articles, it was intended to have been marked for an Heresy to be of a contrary opinion: sc. in the intended Canon Law by vertue of some Statutes in Hen. 8. & Edw. 6. time: where if the 32. had proceeded, as in part they did, and their conceptions received life, and quickning power by setting to the Seale of due and lawful Authority, it had been thenExcludatur etiam ab eisdem Anabaptistis inducta bonor [...]m & possessionum commun [...]as, quam tanto [...]ere urgent, ut nemini quicquam relinquant proprium & suum: In quo mirabiliter loquuntur, cùm furta prohibere divina s [...]riptura cernant, &c. Reform. Legum Eccles tit. de Haeresibu [...], cap. 14 pag 14. the 14th of the heresies there to be condemned, to maintain Community. But those Canons were onely cast, not mounted, not ever yet of power to do any Execution in this Church or State: But others have plainly, fully, and actuallyIn his Sermon called, The righteous Mammon, not far from the Beginning. spoke it out both heterodox and heretical. Bishop Hall long since preached with applause enough upon 1 Tim. 6. 17. that certain Hereticks, called the Vide Epiphan. haeres. 6 [...]. pag. 506. August. ha [...]es. 20. Apostolicks, before St. Austines time, in his time our Country-manAugust Epist. 89. contra Pelag. & Manich. Q [...]ast. 4. tom. 2. pag. 15 [...]. & Epist. [...]06. contra Pelag. page [...]85. Pelagius (orNam Mor aequor, pelagus; [...]an apud vel juxta significat. Spelman Concil pag 46. So Pelagius in Latine gives and is given by Morgan in We [...]sh, or, as wee would call him, [...]t Sea▪ in English: which name is contracted and used frequently enough at our Sea Coasts. Morgan, for that was his true name here, because he dwelt by the Sea, at least the name imports so much) and since divers Separatists have maintained Community, al-sufficiently confuted by the word of his Text, Charge the Rich. 'Tis also laid to the charge of the Manichees by S. Austin Lib. de Moribus Eccles. cap. 35. tom. 1. pag. 331. of Julian the Apostate, by [Page 30] Gregory Orat. 1. contra Iulian. Nazianzene, of Dulcinus and Margarita a­mong the Novatienses, byIn the Life of Clem. 5. f [...]l. 432. Caranza, and the Familists and Th. Muncer cryed it up strongly in Germany, Schl. Comment. lib. 5. in Princip. Anabaptists, all Sects, or names of hatred and aversation enough that they would down with all Fences, remove all Boundaries, unsettle the Land-marks, and restore all Inclo­sures again to their first and natural Community: which cer­tainly they could nor can others ever do without bringing themselves within the compasse of those [...], ungoverned men, 1 Tim. 1. 9. [...], meerly cross to lawfull power, Rom. 13. 2. [...], in By whom they are also sti­led Dreamers, (whose great pre­tence of quicker reason then ordi­nary is scarce yet half awake) that defile the Flesh, (and yet pretend the Spirit) sleighting not onely Dominum, but Dominium, the civil Magistrate, and the Magi­stracy, blasphe­ming Dignities, and yet Moses did not raile at the Devil, ver. 8, 9 So notoriously bad that as a great Mountane that is onely visible at a distance Enoch the seventh from Adam could fore-see, and did fore-shew of them then: [...] discontented men, alwaies finding fault with their lot or portion, (be it what it will) walking after their own lusts, or greedy covetousnesse, and yet confident, that will speak any thing, &c. ver. 16. St. Jude's phrase, that regard not Authority a rush: yea, [...], men out of their wits, as well as out of their duty, as St. Paul to Titus That the corrupt, self-loving, deceitful, unjust world keeps it self either safe, honest, or quiet, refers it self chiefly to these binding, and to every man his own bounding laws and appropriations, and, by consequent, to remove and tear them up, can be no­thing else but to betray the world to misery and unquietness, and all the effects of, worse then Poverty, Desolation and Confusion.

Thus are we advanced two steps, and 'tis hoped on firm ground: that partitions or proprieties are not of nature, yet (of much need, and by Religion) they may be: How? is the next enquiry; and this makes way to a third Proposition, scil. that

CHAP. III.

Proposition 3.

THat which boundeth and severeth humane Properties is humane Law: which, for the ending of Strife, preservation of Peace, maintenance of Societies, and bettering that we call Humane Good, the wisedom of man hath found out, and the wisedome of God in his Laws (whether divine or na­tural) does not disallow but confirm, for the bettering the condition of our humane frailty, and making our troublesom earthly life more quiet, calm, and comfortable amid all our infirmities and tempest-breeding corruptions. This is that Chymists fire that sets the several forms in compounded bo­dies on work to excite and raise themselvs up to cause division, and thereby separation, that the potential parts may come in single out of the heap, and that which might be distinct, may be. The fan that separates one thing from another, this from that, which were before in the common heap; the Calamus mensurae, or mete-wand wherewithChap. 40 Ezekiel was to measure and fit the several proportions of the Sanctuary; and wherewith are measured out unto us every ones propriety, and limited and proportioned: The square, rule, fence, mea­sure that helps to cut out properties and divide them, parts the common, and encloses it, appoints of the whole how much every man must have, imprinting the Characters of Meum and Tuum upon the divided parcels, and circumscri­bing each withEx dom [...] ­nio ad modum jam dictum pri­vato introducto evenit, ut terri­torii seu agri, cu­jus usus universis pariter erat in a­rando, aedifican­do, depascendo, arbores caedendo, fructus pe [...]cipi­endo, transeundo liber, proprietas ità possidenti, sive per distributio­nem, sive per oc­cupationem, pri­vatim acquirere­tur, ut is liberum ejusmodi usum jure posset impe­dire, nec ejus injussu al us lici­tè uti posset. At­que ab hac origine manavit omnium rerum proprietas seu dominium, quod sive al enatione, sive quacunque aliâ cessione in al [...]os tran [...]fertur, sive possessione re [...]netur, Seld. Mare Claus. lib 1. cap. 5. Noli me tangere, meddle not with an­others, [Page 32] others, touch not pitch least thou be defiled, lay not a gree­dy and unjust hand upon anothers, least it burn thy fingers. Would we have that which resembles Di [...]o's Thong, where­by she parted that which was hers, from his she bought her little plat of ground of, calling This, City; That, Countrey? This is it. Would we behold that Sea-banck, that bounds the raging and impetuous Waves, speaking in the word as 'twere of an Almighty Creator, Hither shall you come, and no fur­ther; Here shall your proud Waves be stayed; That re­strains, I mean, the raging, ravenous, impetuous, insatiable desires of mans greedy, restless, covetous minde, telling him, He shall have This, and no more, It is enough. He must and ought be therewith contented. The Law, the Law doth this alone, setting up every one his Hercules Pillars, how far he shall come and no farther; His bounds that he cannot passe, nor turn again to any of that community he has thus by his own Act excluded himself from, and may not re-invade though he never so much desire it. Tolle Jura Imperatorum, & quis audet dicere, Mea est illa villa, aut Meus est ille Ser­vus, &c. as replyed S. Augustine to some wo asked him, what they had to do with Emperours? And a little after: Per Ju­ra P [...]um possidentur Possesiones, The Laws of Kings give us our Lands: (which was worth remembring, having been laid down at large before:) And so the Student to his Doctor: The Law of Man gives man what is his, and therefore may re­gulate, and therefore may make conditions, one of which is such as there resolvs the doubt in hand: And Mr Selden, speaking of Right, and Civil Right, and the particular Right of these Dues we call Tithes, makes their strength here imme­diately founded in humane law. page 14. of the Preface to his History.

And this is very reasonable: for the Law is supposed every ones Act; what is thereby impaled, Every one to have an hand in the enclosing thereof, even he that would claim Re­entry, but has hereby excluded himself from any such just hope of: For,Reg. Iur. Can. 29. Quod tangit omnes, ab omnibus debet ap­probari, and supposed so done, that what is past in Law, is past by [...]

[Page 33] NOw I come to Matth. Matth. 28. 20. 28. 20. Lo I am with yon al­ways to the end of the world.

Sir,Answ. from the scope of your Paper it is easily seen what you would inferr hence; but as yet the Reason of your inference lies in the dark: the meaning of this phrase, I am with you al­ways unto the end of the World; is no more then this, I will do you good, whilest ye remain imploy'd in my work. My Authour in this Exposition is old Jacob, no bad Interpreter, Gen. 31. 3. the Lord commanded Jacob to return into the Land of his Fathers, and to his kindred, and for his encou­ragement adds to the promise thus, I will be with thee: which Jacob in chap. 32. 9. thus expounds, I will deal well with thee, or I will do thee good. Jesus Christ is present with his Messen­gers, or deals well with them, when he doth instruct, com­fort, strengthen, or protect them: and all these works he doth in his absence by his spirit, whom the Father hath sent in his Name, Joh. 14. 26. Let me only (for brevity sake) instance in the work of instruction. Christ instructed his Apostles, but not immediately; for the spirit which came in Christs Name, and received of his, was the Instrument, by which Jesus Christ did the work, John 16. 13, 14, 15. When he the spirit of truth is come, he will guide you into all truth; for he shall not speak of himself: but whatsoever he shall hear that shall he speak, and he will shew you things things to come. He shall glorifie me: for he shall receive of mine, Hic locus de mo­do praesentiae spi­ritus quo se sua­que nobis com­municat: caete­rum corpore ab­est. Beza in loc. and shall shew it unto you, all things that the Father hath are mine: therefore said I, he shall take of mine, and shall shew it unto you. Christ is now in Heaven, sitting at the right hand of God, and is present with the Saints in Earth by the spirit, and glorious influences of grace and mercy, John 14. 16, 17, 18. This kinde of presence by the spirit Beza and others understand to be intended in Matth. 28. 20.

REv. Rev. 2. 2. 2. 2. is now to be minded, whether it doth joyn with the fore-going Texts, in speaking any thing by way of Justification to your Assertion or not.

Answ. Christ could not (say you) at so great a distance know all the works of the Churches as meer man.

[Page 34] What could he not? Is any thing too hard for the Lord? What could the Prophet Elisha know at a very great distance, what the King of Syria said in his bed-chamber? And yet cannot Christ know at a distance? He hath the spirit (to wit wisedom, power, &c.) given him without measure, John 3. 34.

And therefore can know beyond what we can conceive: And yet is not the most high God, for his knowledge is of another, John 5. 30. I can of mine own self do nothing; as I hear, I Judge; and my judgement is just, because I seek not mine own will, but the will of the Father which hath sent me. Though he always knew all things necessary for the perfect discharge of his Offices; yet there was a time when he was excluded from the knowledge of the hour and day of judge­ment, Mark 13. 32. The words from the Greek are these: But of that day and hour no one knoweth, neither the Angels which are in Heaven. Nor the Son, unless the Father. Hence it is plain, that the Father onely knew the day and hour of Judgement, and that the Son himself was at that time exclu­ded from the knowledge of it; therefore this knowledge was not originally of himself nor always perfect.

COl. Col. 1. 15. 1. 15. I finde next in your Paper, but have already spoken to it; yet was willing here to mention it; least you should think I had forgot it. Sir, this Text you say, holds forth the Eternal Generation of Jesus Christ. I pray consider it again, and by your next let me hear what part thereof it is in which Christs Eternal Generation may be seen.

THe next Scripture is Col.Col. 1. 16. with John 1. 3. 1. 16. To which I shall add John 1. 3. being reserv'd for this place.

Answ. Sir, here you harp upon two other strings, and think they sound that alowd in your ears which you have entertained in your thoughts, to wit, that Jesus Christ is the most high God. But pray Sir, consider whether your Conclu­sion be the Eccho of those Texts, or else of your own thoughts onely. But you seem to gather this Argument from the words to manifest the verity of your thoughts.

He by whom all things were made is the most high God. But [Page 35] all things were made by Jesus Christ.

Therefore Iesus Christ is the most High God.

I shall answer to your Major by distinguishing betwixt the Agent Principall and Instrumental. That there may be in one and the same work, one Principal and another Instrumen­tall Agent none will deny. But whether there were in the work of Creation one Principall, and another Instrumentall, is a thing to be proved. That the Father was Principall therein, and so the most high God, comes not under debate. But whether the Son was onely Instrumental in that great work of Creation, is the Controversie, and must be the subject of our present inquiry. I affirm, that Iesus Christ was onely an Instrumentall Agent in the Creation of the worlds.

The Reasons by which, I shall at this time guard mine assertion from suspition of errour, are these that follow.

The first is drawn from the silence of all creatures. The book of the Creatures,Ex Creatione agnoscitur De­us, sed non Deus pater fil. & spir. fi quoniam vis illa efficiens quia mundus fuit creatus, per­tinet ad Essen­tiam Dei, non ad subsistentiam ejus personalem, Amesius. as well as the book of the Scriptures, speak forth with open mouth, this sacred truth that there is one first cause, and Principall Agent of all things. Of a Trinity of Persons in Unity of Essence, as Principal Agents in the work of Creation; the whole Creation is wholly si­lent: Wherefore our Divines acknowledg, that God is known from the Creation, but not God the Father, Son, and Holy Spirit, because that efficient power, by which the world was created, belongs to the Essence of God, not to his personall subsistence.

Yet by their leave, God is a Person, all actions being pro­per unto persons; and therefore by their grant, the works of Creation hold forth but one Agent, who must needs be the Principall (if not the only) Agent therein; for it is not imaginable, that if there were then one Principall Agent, they should not all be equally discovered by the work, being equally concerned in it: Therefore if Christ were an Agent, he was but an instrumental one.

The Second Reason proceeds from the verdict of pure Reason. If Reason may obtain credit, she will tell us, that there could be in the work of Creation but one Princi­pall [Page 36] Agent, because there is by nature and in way of emi­nency but one God: For if there were two Principall A­gents, there must be two Gods in way of eminency, (the terms being convertible) which to affirm would be absurd, and easi­ly disproved. And therefore if Jesus Christ were any, he was but an Instrumentall Agent in that work of Creation.

The Third Reason issues from the nature of Christs being. That whole Christ is a creature, hath been already proved: yet let me adde a word from Col. 1. 15. which doth immedi­ately precede the Text now in question. Christ is there cal­led the image of the invisible God; and so is distinguished from God, because the image and the thing whereof it is an image are not the same; in that nothing can be the image of its self

Now he is called the image of the invisible God, in that God through him did principally manifest and declare his Di­vine Glory, and in that the chiefest Dominion of the creature was by the Father committed to him; in this sense man is called the image and glory of God, 1 Cor. 11. 7.

He is also called the first-born of every creature; where­by he is ranked among the creatures, yet so as that he is the Head of them.

Now if whole Christ be a creature, then will it unavoida­bly follow, that he was but an Instrument in the work of Creation: for God and creatures are contradistinct, and he could not be, unless he were God, a Principall Agent.

The fourth Reason doth spring from the manner of Christs working.

1. Though he had an hand in the Creation of the world, yet was it not originally of him, 1 Cor. 8. 6. where the Apo­stle doth plainly shew us, that all things are of God, even the Father, and that all things are by, not of Jesus Christ, and so the Son is distinguished from the Father in the work of Creation; the Father being the first cause, and originall of all things, and Christ the instrument of the Father, by whom he did manifest his Divine Glory in producing creatures.

2.Instrumentum & Minist. Ter. [...] Just. [...]. Theoph. [...]. Origin. In that in the work of Creation the Scripture tells us, that God acted by him, Ephes. 3. 9. where 'tis said, That [Page 37] God created all things by Jesus Christ: So in Heb. 1. 2. which openly hold forth Jesus Christ as Gods instrument in cre­ating the world.

He is frequently called by the Fathers the Instrument and Servant of God.

But you endeavour to strengthen your Proposition by a Reason (such as 'tis) drawn from impossibility; God could (say you) make use of no instrument in the work of Creati­on. But Sir, this assertion derogates from Gods All-suffici­ency. Is any thing impossible with God? Is any thing too hard for the Lord?

2. It contradicts your own testimony. I remember that in a Conference (where I exercised both silence and pati­ence, to the Glory of God,) since I received your paper, you did affirm in the hearing of not few, that God might at first have made an Angel, or some other creature, and by it have made all things.

How to reconcile one with the other is a thing unfeasi­ble; and therefore you must confess, that you are not al­ways infallible: yea, that sometimes you differ from your self; and so 'tis no wonder, if you disagree with others. But what shall I take from your present judgement? Must your last words stand? If so, then you have weakned your cause; and I may save a labour in returning an answer to that, which follows in your paper: If the former, then you must recant what you last said, and I must not here make an end of my Reply to your Major. The truth is, I honour Reason so much, that I should rather prostrate my self to its shadow and appearance, then to the best mans testimony and asser­tion: wherefore I shall honour Reason so much as not to pass by without examination that which appears in your pa­per, with Reasons dress on it. Your Reason thus runs,

Now because Creation is a making of all things out of no­thing, and required an infinite power, God can make use of no Instrument: inasmuch as God cannot derive and give an infinite power to any creature, because no creature is capable of such a Divine Attribute, for it would make him God, to be Almighty, or to be infinite in power.

[Page 38] Answ. I shall not answer to all in this Reason which seems not to be sound doctrine, but only so far as the matter in hand requires.

1. Though it be true that Gods infinite power was mani­fested in the work of Creation: yet was not the Infinity of his Power manifested fully in that, or any other work; for he hath more power then ever yet he had need to use, or then could in any work be fully declared.

2. Your assertion plainly denies the man Christ Jesus to be God; Almighty, or Infinite in power; for you say that God could not give or derive an infinite power to any creature, and that a creature cannot be God, Almighty, &c. The man Christ Jesus was a creature, how then can that Person be God?

3. The ground of your Argument is straw and stubble; For infinite power may be manifested by them, to whom 'tis not communicated, and so their proper power; As is evi­dent in those that wrought miracles and raised the dead, in which infinite power was manifested, and yet the instru­ments thereof were not in power infinite. The like might be said of Gospel-Preachers, whom God makes his Instru­ments in mens conversion, as great a work as the worlds Creation. The same might be said of Christ in his work of our Redemption.

But enough of this.

I shall now examine your Minor, which was, That all things were made by Iesus Christ.

This is true, Christ being excepted, of whose Creatural be­ing I have already spoken.

Obj. But you will say, that in Iohn 1. 3. it is said, That all things were made by him, and without him was nothing Made, that was Made.

Sol. The words are to be restrained to all those things which by the use of an instrument were made and created. In the first verse of this Chapter, the creation of Jesus Christ is included, and in this third verse he is spoken of as the in­strument of God in creating all things, and therefore is here to be excepted. As when John the Baptist speaking of Christ, (John 3. 32.) said, What he hath seen and heard that he testi­fieth, [Page 39] and no man receiveth his testimony; it is evident that Iohn was to be excepted. Persons are sometimes segregated from others of the same kinde, in way of eminency, being chief amongst them. Thus in Psal. 18. 1. where 'tis said, that David sang that song, when the Lord delivered him from the hand of all his enemies, and from the hand of Saul. What, was Saul none of Davide enemies? he was the chiefest, and therefore segregated from the rest.

Thus having taken off the Charet wheels of your Argu­ment, the Conclusion cannot advance up by its assistance.

I Come now to Heb. Heb. 7. 3. 7. 3.

I perceive you are willing to gather from this Text the Eternity of Iesus Christ; Answ. (but on this tree grows no such fruit,) You say that Christ is here resembled, in reference to his Eternity, to Melchisedek, without beginning of days, or end of life. Pray Sir, was Melchisedek Eternal? If so, then he was God. But he was neither the Father, nor the Son, nor the Holy Ghost, whatever some have conceived, I hope you will not allow a quaternity of Persons in Unity of Essence. And therefore will allow that the words be taken in a figu­rative sense.Quod non nar­ratur ponitur quasi non sit. Melchisedek was without beginning of days or end of life, in that there is no mention made either of his birth or death, in the History of Moses: or especially in reference to his Priesthood, the time of its beginning and en­ding being not certainly known. So our High Priest Jesus Christ is without beginning of days, or end of life.

YOur next Scripture is Prov. Prov. 8. 22. 8. 22.

Answ. The Lord possessed me in the beginning of his way, before his works of old: I was set up from Everlast­ing, from the Beginning, or ever the Earth was.

The meaning is this, [...], &c. Sept. The Lord who is Possessour of Hea­ven and Earth, obtained or created me when he began to work, before all his ancient works. And I was set up, or anointed to have the dominion of all things, and that from Everlasting, that is, from the Beginning, before the Earth was.

The Septuagint have the words thus: The Lord created [Page 40] me the beginning of his ways for his works.Dominus acqui­sivit me princi­pium viae suae, ante opera ex tunc, A saeculo principatum ha­bui à capite, ab initiis terrae. Mont. He founded me in the Beginning before the Earth was made. Montanus thus: The Lord obtained me the beginning of his way, before his works from thence; I had dominion from Everlasting from the Be­ginning, from the beginning of the Earth.

The thirtieth verse speaks of Christ as having a being be­fore Gods works of old; yet so as that it was created one.

THE Scripture which follows next in your Paper, is, Zach. Zach. 13. 7. 13. 7.

Awake, O Sword, against my Shepheard, against the man that is my fellow, saith the Lord of Hosts.

Answ. I suppose that you would infer hence the coe­quality of Jesus Christ with the Lord of Hosts, whose words those are. But doubtless when you drew up this Conclusion, you hearkned to the sound, not the sense of our English word Fellow, which doth not always note equality, as from Psalm 45. 7. and Heb. 1. 9. you may be informed, where the Saints are called the Fellows of Christ; from which none ac­quainted with Reason or Scripture will conclude their co­equality with him. Had you consulted with the Hebrew word used in the Text, you would have been a stranger to so strange an inference. For the words translated, My Fel­low, might be rendred, My Citizen, my Neighbour, my Second, Hebraea vox proximum aut amicum sonat qui stat è regio­ne alterius. Et praesto est à o­mnia amici of­ficia compara­tus quamobrem idem in sinu pa­tris esse, & ad dexteram illius sedere dicitur intercedens pro nobis. Trem. in Locum. my Lievtenant, my Vicar, my Friend; So the Septuagint [ [...]] the man, my Citizen, or Neighbour. Tremelius, thus: [Virum proximum meum] The man my Second, my Lievetenant, my Neighbour, my Vicar, or the like.

Tremellius and Iunius in their Marginal Notes speak thus. The Hebrew word (say they) signifies one that is very near, or a friend, who stands over against another, and is ready at hand for all friendly offices; wherefore the same, to wit, Jesus Christ) is said to be in the bosome of the Father, and to sit at his right hand, interceding for us. And so the words acquaint us with these two things especially,

1. That Christ is the Principall object of Gods dearest af­fection. The man my fellow, quem maxime amo, saith Gro­ti us, whom I most of all love.

CHAP. VI.

Proposition 6.

HHere in England, that which gives me right or title to any thing, is Lex hujus Terrae, or Our Law. This is the Basis of all Eng­lish property, and grand Charter by which every man holds his estate with us: The Fortune-teller, yea, the Fortune-giver, and Maker, and Creatour of all Right and Title among us, which lets in first light of possibility of fraud, injustice, or any wrong, and that alone gives place to the 8th Comman­dement, ever to take any place, Thou shalt not steal; for, where is no Law, is no transgression: if we had no right, we could have no wrong; and in bare taking how could I be ac­cused to steal that which is no mans, but is now by law indeed anothers?

By Law here I understand that which under sundry beads has been of such force with us:Doctor & Stud. As the Law of Scripture first, which is not here a Law onely,Dial. 1. cap 6. but a Law of Laws; whatsoe­ver is here done against it, is [...], as against the Law of the Land: and farther, if any Law be made against it, that Law is a grievance and an offence, and thereby both unlawful to obey it, and the order it self null, as more then revocable re­voked, as if it were made against the great Charter. (Upon which ground also Dismes are here due, saiesid. ibid. fol. 11 a very good Lawyer.

Then have we the Law ofRep 7. Cal­vins Case. Doct. & Student. Dial. 1. cap. 5. Reason, or Nature, or Na­tions, taken in likewise into our Code or Canon, so that whatsoever is done against the same (generally received) is against Our Law, as was said of the imbraced Scriptures [Page 42] to us Christians; andBecause it is written in the heart, it is never changeable by no diversity of Time or Place, and therefore against this law, Prescription, Statute or Custome may not prevaile; and if any be brought against it, they be not Prescriptions, Statutes, nor Customes, but things void and against lustice. id cap. 2. fol. 4. as a crocked Rule, made by a streight, to make right lines by. As in the Empire: Omnes cujuscun (que) majoris vel minoris administration is universae nostrae Reipublicae Iudices mone­mus, ut nullū rescriptum, nullam pragmaticā Sanctionem, nullam sacram Annotationem, quae generali Iuri, vel utilita­ti publicae adversa esse videatur, in disceptationem cujus­libet l [...]tigii patiantur proferri: sed generales sacras con­stitutiones modis omnibus non dubitent observandas. Dat. Kal. Iul. Constantinopol. So the Emperour Anaestasius. Cod. lib. 1. tit. 22. l. ult. this likewise, as that, a Rule of Laws. Also that law of Reason, spun out into certain, as it were deri­vative branches, which are so ma­ny sorts of that wee call positive Law; as, General: whereof the Student to the Doctor, Dial. 1. cap. 7. as the third ground of the Law of England: or particu­lar, whereof cap. 10, 16. Bract. lib. 1. Sect. 2. Law Customary, Whereof the Body given by Bracton, Fleta, &c from times before. Law Common. Vide Doct. & Stud. Dial. eod. cap. 11. Law Statute. Cook Instit. 1 fol. 11. b. Law Maritime, or that of Oleron, published by our Rich. 1. there, but of English mint, though there cast and named; the English Sea Law it is made at Oleron: TheCook ibid & Instit. 4. cap. 22. pag. 134, &c. of the Court of Admiralty proceeding according to the Civil Law. Civil Law also, as in our Courts of Admi­ralty, and Marshalsey, and gene­rally supplyingAtqui interea, è locis superiùs ex Iure Caesareo ab Iurisconsultis Nostratibus? Fletâ utpote aucore, Bracto­nio, Thorntonio celeberrimis ac Iudiclis cum primariis (quantum ad posteriores binos attiner) Praefectis, ita allatis expressímque indicatis, atque in rerum quas tractârunt probationem & argumenta sic adhibitis, idque velut au­thoritatem aut saltem rationem cogentem prae se ferenti­bus, manifestum fit, Vsum qualemcunque neque cum adeò obscurum apud Majores nostros [...]o in seculo juris ejusdem, a [...] (que) illius librorum in discussionibus nostris etiam ex jure Anglicano definiendis invaluisse. Not with intent to sub­mit this Kingdome to Caesar or his Laws, or relinquish our own,—sed ut, tum ubid effct nostri Iuris praescriptum expressius ad rationem etiam Iuris Caesarei ratione sufful­tam recurreretur, tum ubi Ius ntrumque consonum, etiam Caesarei quasi firmarecur, explicareturve res verbis. Seld. ad Flet dissert. cap. 3. Sect. 4. pag 472. the defects, and eeking out the imperfecti­ons thereof by its larger spread body, eztending thereby to ma­ny particular either determina­tions or reservations, helpfull where the brevity of our shorter Rules and Maximes of Prudence could not reach.

Lastly, the several pieces of allowedCook on Littleton, Sect. 648. fol. 344. & of the Iu­risdiction of Courts, cap. 74 p. 321. Canon, fitly called the Kings Ecclesiastical Laws:Doctor & Student, Dial. 1. cap. 6. fol. 11. which though ministred by Church-men,Artic. Cleri 9 Edw. 2. is, or was, one of the Kings arms of Justice,Cricumspectè aga [...]is. 13. Edw. 1. where­by he reached out his helping power,Stat. of 24. Hen. 8. 12. and exercised some part of his Ecclesiastical Jurisdiction to some persons,Sr Th. Smith de Repub. Anglican. lib. 3 cap. ult. and in those Cases it concerned him to have both ended, and thus ended, and accordingly was.

All these are so many Oracles of Justice, Pillars of Right, [Page 43] Distributioners of property, and Umpires of strife, autho­rized sufficiently so to do, and to give me any thing that they do give me, and what is so done or given is lawfully; and if any thing be so setled upon me it is questionlessAnd of such a Law of Ma [...] that is consonant to the Law of God, it appeareth who hath Right to lands and goods, and who not: for whatsoever a man hath by such [...]aws of man, he hath righteously; And whatsoever is had against such laws, is unrighteously had. Dr. & Stud. Dial. cod. cap. 4. fol. 8. mine. And as by these, so generally by writing, or custome, by statute, or canon, whatsoever in the true judgment of Courts, and com­mon reception of those that are not mistaken, is Law; That is the same pillar of property, assertour of Rights, foundati­on of dominion, strength of title, and giver, maintainer, pre­server, defender, assurer, and protector of a man in that he so has: as an oracle it tels him truly what is his, as more then a Prince he gives it him, and makes it wrong, injury, fraud, theft, usurpation, injustice, (and these things only possible this way) if it be taken away from him.

And for this purpose all these are equally and alike suffici­ently operative.In every Law posi­tive well made is something of the Law of Reason, and of the Law of God. Id. fol. 7. There is no choice; for where all are the same, and have the like cause of power, one must needs be as good as another.

All our law is in some sort, (derivatively, mediately, at se­cond hand) the voice of God approving all just pactions, and humane positive lawes, and so his stamp is upon every part; and he that resisteth, in any, resisteth the Ordinance of God. Neither have we any other: These are the alone limitations, banks, and boundaries, that hedge in, and hedge out, giving certain admeasurement, as the law-word is in some case, of pro­perties, to so very many as there be among us, making us know our home, and giving our home, which none but they can do in this various world. For the Divine Law immediatly is of no force; the severing by Tribes, or cutting by Joshuah's thread served but once, unless for example, (and so I beleeve much use hath been made of it here, more then we are aware of or do readily understand, ourAluredus Rex (who as all grant made our politicall division) ubi cum Guthruno Daco­foedus inierat, prudentissimum illud olim à le­trone Moysi datsi secutus consili­um, Angliam primus in Satra­pias, Centurias, & Decurias partitus est. Satrapiam. scyre, à [...]scyran, quod partiri significat, Lominavit: Centuriam hunðreð: & Decuriam teoþung, sive tienmantale, id est, Decemvirale Colleg ū appellavit, at (que) eisdem nominibus vel hodie vocitantur. Hence our Tythingmen, &c. And a little after: Decrevit tum po [...]ro Aluredus liberae ut condition is quas (que) in Centuriam ascriberetur aliquam, ut (que) in Decemvirale aliquod conjiceretur Collegium: De minoribus negotiis Decuriones ut ju­dicarent, ac si qua res esset dissicilior, ad Ceuturiam deferrent: (like the steps of Appeal, Exod 18. 210. Deut. 1. 6 17.) Disficillimas deni (que) & maximi momenti lites Senator & praepositus in frequenti illo ex omni Satrapia conventu componerent. Gloss. ad Lambard. Archaion. pag. 217. in vocab, Centuria. Approved by Dr. Cowell in his Interpreter, in vocab. Hundred. And compare farther Ioseph Antiq. l. 3. c. 3. and 2 Chron. 25. 5. Some glimpse hereof appeared to the publishar of Sir H. Spelmans late larger work of Tythes. pag. 41. Shires, Hundreds, Tithings, &c. [Page 44] Coming I verily beleeve at first from the patern of Judah, Le­vi, Simeon and Benjamin, by exemplification:) If any man should attempt it, he might be partial; if none, the thing not done: so that supposing a partition needful, and some to doe it, and no revelation from heaven, (save in paterne or general rules,) we can lay hold of no other umpire or Judge like to be fit to do it, then that voice of wisedome (implying all mens consents) which is in the Law; the gracious goodness of God assisting the grave wisdom of man, yea, inabling and authorising it to set bounds hereby to our appetites, & master our unreasonable, proud, headstrong desires; giving lust a law, covetousness a law, the hand a law, nay, the eye a law, that it may not so much hereafter as greedily covet what is a­nothers. This is that which bindes the Bear and shackles the wolf, lays fetters upon our wilde and forrest desires, that else would make us very apt to hearken to temptation to be preying one upon another. But this restraines our fury, and locks up the Lion in the grate, bidding, yea forcing all to goe home and be content with their own; Sorte tua contentus abi, and cast not a fruitless, sinful, greedy glance up­on the inclosure of thy neighbour.

To give instance in some particulars: From this law thus received amongst us it is, that I am to succeed in my fathers fee: I have right to succeed, I may claim my right; and I have wrong if I be kept out of my due & lawful inheritance. For our Law hath divided much land into such tenures, (upon reasons of profound wisdom not discernable to every comon apprehension,) that hath willed I should succeed my father, if his heir; I am his heir, nay, though a daughter, and there­fore I must and ought to succeed.

It is not so inAs in the Ottoman Empire where the Timars are much the same with our military. Benefi­ces, obliging estates for life, upon death the State disposes, as of our. Ecclesia­sticall Benefices; that falling not by inheritance, there may be still choice of fitting men, vide. Knoll. Turk. Hist. in his Appendix of the Turkish kingdom fol Aaaaaa: and that learned and judicious ob­server, Sir Henry Blount has also the same, who was lately among them, p. 65, 66 and before them Mr Selden in his Titles of Honor, par. 2. c. 12. So 'tis also in the G [...]eat Mogols State, lately ere­cted and suppor­ted by them: vide Pvrch. Pilgrim l 5. Append. ad c. 6. p. 543, 544, 545. Edit. 1614. And Scanderbeg used the same policy also in Epirus. Now all this might have been well enough here, for the same thing hath continued, and is yet well enough in the Ecclesiasticall State, nor wrong thought by the ruling Constitution, if when the man dye, the widow and children are presently strangers: Nay, even in some nearer parts of Christendom as to secular succession too: for the Glosse on the Feudall Law, speaking of the old way for life onely: Et hoc adhuc obtinet secundum rigorem consuetudinis in feudo Marchis, Ducatus, Comitatus, vel alterius regalu dignitatis ab Imperatore datae, quoniam illud foudum finitur c [...]m persona acctpientu; quia hares in eo non succedit, nisi ab Imperatore investiatur, Gloss, ad vitam, ad seud. l 1. tit. 1. sect. 1. And 'tu true, it use in the Text. De Marchia vel Ducatu, vel Comitatu, vel alia regali dignitate si quis investitus fuerit per beneficium ab Imperatore, ille tantum debet habere, haeres enim non succedit ullo modo, nisi ab Imperatore per investituram acquisierit: lib, eod. tit 14. Though perhaps it be not strictly executed: But this, it seems, the Law. other States, nor was it in ours if it be [Page 45] right feodal, where the fee was either forOr not so long, but dum bene se gesserit, at first, as an eccle­siasticall man keeps his Bene­fice, or as Tenants at the will of the Lord, to be outed upon distaste, as a stipendary servant from his ten pounds a year. For the Fee was nothing but so much land given for observance: To sup­presse outrages, maintain the Lords title, and help keep the rest in awe. Take the best anthority, Antiquissime enim tempore sic erat in dominorum potestate connexum, ut qvando vellent, possent auferre rem in feudum a se datam, (retained to this day in Castleguard, saith the Glosse, as a Generall discharges a Captain at pleasure) postea vere eò ventum est, ut per annum tantum firmitatem haberent: deinde statutum est ut usque ad vitam Fidelu produceret [...]r: (so an involved condition of Loyalty.) sed cum hoc j [...]re suc­cessionis ad filios non pertineret, sic progressum est, ut ad filios deven [...]ret: in quem sc. dominus hoc vellet bene­ficium confirmare; (so now to a man and his son, no more:) uòd hodie ita stabilitum est ut ad omnes aequaliter filios pertineat: (not, as in Gavelkinde, divisible, which was unusuall in Fees: as Sir Henry Spelman in Gloss. p. 257. but to one and all successively, (for so many lives he had, the father and all his sons, that All might succeed in All:) for before onely one was taken in, ad quem, &c.) After­ward (about the year 1025) the favour was inlarged: 2. Cum verò Corradus Romam proficisceretur, petitum est a fidelibus, qui in eius erant servitio, ut l [...]go ab eo premulgata hoc etiam ad nepotes ex filio produ­cere dignaretur: (Now Grand children taken in; understand immediately to succeed their Grand-Father, their Father dead:) & ut frater fratri sine legitimo haerede defuncto, vel filius in beneficio quod eorum patris fuit succedat: (now to his father immediately, so here in a second succession a third possession secured, to a man, his son, and that sons Brother; or to a man, his son, and that sonnes son: But this held not unlesse the first Donee were in the line ascendant:) Sin autem unus ex fratribus à domino foudum acceperit, eo defuncto sine legitimo harede, frater ejus in feudum non succed it; and so goes on to regulate and limit other remoter, or collaterall successions, ending at last in, In masculis descen­dentibus hodie nove jure usque in infinitum extenditur. Gerardus Niger. Feud. lib. 1. tit. 1. By these de­grees things crept up. Sr. The Ridley acknoledgeth two sorts of Feuds, Temporall, and Perpetuall: View of the Laws, par. 1. chap 4. sect. 2. life, so long as the known Miles lived, or for his son after him, (excluding his daughter,) though since the daughter was admitted because she might marry a Souldier, and so both she and the son new admitted: It was not so (and the law just while it was) but a military Benifice, as to succession, as an Eccle­siastical.For the Lumbards, from whom the Feuds first came, or at the least were chiefly derived from them, directing all their policy, as the Lacedaemons did, to matters of warre, had no feminine Feuds, among them; But after by processe of time, there were created as well feminine Feuds, as mascu­line, &c. So goes on Sir Thomas Ridley in the same Section. And the reason is given more explicite by P Rob [...]ff Qum foemina non potest ita bene defendere dominum its Bello, vel aliás servire sicut vir: ergo nec feudum habebit, cùm dr [...]r ob servitium: (though by custome it be in France otherwise:) Feud. Decl. p. 3. Septimo. The bottem of all is that of the Ruling Law: Hoc autem notandum est, quod licet filiae ut Masculi pa­tribus succedant, legibus tamen à successione feudi removentur: similiter & earum filii, nisi specialiter dictum fuerit ut ad eas pertineat, Gerardus Nig-lib, & tit. eisdem, sect. 3. And so 'twas in the Salike law: wherein inter caeteros spectatissimus est iste paragrophus: In terram Salicam Mulieres ne succedant: or as others more fully; de terra vero Solica nulla portio haereditatis mulieri veniat: sed ad virilem sexum tota terrae haereditas perveni [...]t: apud D. Spelman. Glossa. page 442. in vocab. Lex Salica. The meaning whereof has been expostulated at the cost of Armies of men, and Millions of treasure between us and FRANCE: a few lines are not fit to interpose for umpirage, after so many and horrible contestations.

[Page 46] Again it is somewhat special here, that if I have a wife, and she be an inheritrix, and I have a child by her whose life is discernable by crying, thatLex quidem Angliae est, ut si quis uxorem bae­reditatem haben­tem duxerit, vel aliam terram ha­buerit in feodo ratione maritagii vel alia causa donationis, quod feodum habeat & liberum tene­mentum, si libe­ros [...]inter se ha­buerint ex justis nuptiis procreatos; si ipsa praemoriatur, remanebit viro terra mulieris tota vita ipsius viri, sive superstites fuerint liberi sive mortui, dum tamen sonum emiserint aut clamorem, qui audiatur inter quatuor parietes, si hoc probetur. Flet. lib. 6. cap. ult. sect 4. But this is only of the first Husband Vid. Bracton de Except. cap. 30. sect. 7. Littleton. lib. 1. cap. 4. sect. 35. Dr. & Stud. Dial. 1. cap.7. fol. 14. child shall give me the land, (otherwise a stranger) for term of my life, and it is per legem Angliae, or per curialitatem Angliae, by the law or curtesie of this place, (favouring no doubt marriage and fruitfulness) which if it were elsewhere and common, what meansEt est appel tenant per le Curtefie D [...]engleterre, par [...]ceo que ceo est use en nul auter Realme forsque tant solement en Engleterre. Littletou. lib. 1. cap. 4, sect. 35. saith Littleton, the appropriating title, that this is done by that favour hath denomination from England? And in some pla­ces the husband shall haveDr. & Stud. Dial. 1. cap. 10. fol. 21. half the wives inheritance with us, he superviveing, though he have no issue, this also giving a right by the place which is not elsewhere.

Further the widow relict here shall have theRationabilis autem Dos est cujuftibes mulie­ris de quocunque tenemento tertia pars omnium [...]errarum & rene­me ntorum, quae virsuus tenuit in dominico suo, & ita in feodo quod cam inde dotare poterat die quo cam desponsavit. Bracton. lib: 2. cap. 39. fect. 2. sol. 92. Vid. Flet. lib. 5. cap. 23. sect. 11 pag. 341. Glanvrll. lib. 6. cap. 1. & cap 17. Littleton. lib. 1. cap. 5. Mag. Chart c. 7. & Chart. R Ioan. apud Matt Paris. ad ann. 1215. pag. 247. third part of those lands had been her husbands ordinarily, and by the custome in some CountyDr. & Stud. Dial. 1. cap. 10. fol. 21. Littleton. lib. 1. sect. 37. half, and in some Town or Bur­rough the whole for life: It is not so inRomanis non in usu fuit uxoribus dotes retribuere: ideo verbo genuino carent quo hoc dignosci­tur: & rem ipsam in Germanorum moribus miratur Tacitus, &c. Spel. Gloss. in vocab. Doarium p. 216. col. 1 other places, and yet their wives are women. And this with that assureance that the law allows her a knownNat Brev. fol. 6. Bract. de actione dotis, c. 1. sect. 2. Flet. lib. 5. cap. 25. Glanvill. lib. 6. cap. 5. writ to recourt by, and de jure dotium, is a head enlarging into much of our law, whereof others have little. This I take it, is in special favour of women here, and this the best reason I have met with: and while it is so, there is as much right in this (the like not elsewhere appearing) as there is here for any thing in this Kingdom.

[Page 47] Escheates also, and strayes, Fines, and Herriots (against which some keep now a grumbling that are worthy onely their own low thoughts, as if all were too deep their shallow capacities cannot reach, and justice folly because fools under­stand not wisdome) the Landlords relieve, the Church-mans mortuary, a quitrent, a days work, Eschuage,Faldagium est privilegiū eri­gendi & circum­agendi faldae seu ovilis per cer­tam camporum [...]xtensionem, corum stercoran­di gratia, & gre­gis fovendi: Spelman. Gloss. In voc. Falda. p 248. It seems a privi­ledge the Lord had to pen upon bî [...] land all the sheep fed in his Mannor. foldage,A kinde of tribute paid to the Lord as head or chief, in token of acknowledgment of him. Chevagium dici­tur recognitio in signum subjectionis & dominii de capite suo: Et quamdiu Chevagium solverint servi, dicuntur esse sub potestate dominorum, nee solvitur dominica potestas. Bract. lib. 1. cap. 10 sect 3. Fugitivi esse incipiunt nisi Chevagium annuum Domino suo solverint in signum servitutis. Flet. lib. 1 cap 7. Sect. 7. Chevage,Atribute that Woodmongers and others, paid to the Fee-farmers of the forrest toward the wayes. They were called Chemini, from the french word Chemin, for a way. Volumus & statuimus etiam quod decima de foenis ubicun (que) crescant, five in magnis pratis [...]ive in parvis, [...]ive in Cheminis exigantur. Lyndewood Constit. Provinc. cap. 1. Quoniam propter. Et, pax quatuor Chiminorum:—& Chimini minores de Civitate in Civitatem, leg. Edvardi Confess. cap. 12. It was four pence a year for a Cart, and a penny for a horse: due and so limited by Chart. Forest. cap. 14. in Pultons abridg. pa, 8. & vid. Matth. Paris. Hist. in Charta. R. Iohan. p. 250. Chiminage, I doubt not all these are as due to those can claim then by law, as mony lent, the publike tribute, the landlors half year, or any thing is out of ones own possession; though whither other states have the like I know not, or what is equivalent to them, we are to walk by our own rules not by theirs, and that which here with us gives right, is enough though in other places it do not. We may say as well as the Empire, why not? having equal power within our selves to chuse our own rules, (changing but a few necessary names:) Jus Quiritum est propriè Romanorum, quod nulli tenent nisi Quirites id est Romani. In quo agitur de legi­timis haereditatibus, de cretionibus, de tutelis, de usuc apioni­bus, quae jura apud nullum alium populum reperiuntur, sed propria sunt Romanorum, et in eosdem solos constituta. Dist. 1. cap. 12.

I might farther instance in some other, (proper rules of right for our clime) but I fear the porch too big, (which yet if it be, may serve for other uses then to be onely here an in­troduction;) wherefore but to point.

[Page 48] Abroad the use of havens,De divisione rerum. 1. riparum. Instit. 2. tit. 1. sect 4. Bracton lib. 1. ca. 12. sect. 6. banks, rivers, &c. is publike and unrestrained, but with usSed publica haec quae totius populi atiquando fuerunt, jure no­stro ad regem transferantur: quippe qui universi populi at (que) adeo ipsius Reipublicae personam sustinet. Qui itaque in ripas fluminum publicorum naves hodie exonerant, vectigal Regi, aut jus cjus habentibus solvunt. Et in flumine pub­lico, nemo, piscatur, qui à Rege hanc libertatem non obtinuit Cowell. Instit. Iur, Anglic. lib. 2. tit. 1. sect. 4. vide Bracton. lib 2. cap. 1. sect. 2. the Kings, (whence he requires new impost.)

ThingsInstit. 2. tit. 1. sect. 47. lost and found the finders, but our sea-wracks Cowell ib. sect. 7. Bracton de Corona cap. 3. soct 4. fol. 120. Fleta lib. 1. c. 43 sect 2 pa. 61. the Kings.

Treasure trove,Acquiritur dominium per inventionem, ut si Thesaurus inveniatur, Bracton. lib. 2. cap 3. sect. 3. but to whom? Cum in nullius bonis sit & antiquitus inventoris, nunc de jure gentium efficitur Domini Regis, Id, d [...] Coron. cap. 3. sect. 4. fol. 120. Flera, ubi supra. the guift of fortune, meant for the finder, but with us the Kings.

That was no ones, theQuod enim nullius est id ratione naturali occupanti conce­ditur, F▪ de acquir­rerum dom. l. 3. Takers, (as fish, foul, wilde beasts, &c,) but with us againBracton lib. 2. cap. 1. sect. 2. & cap 24. sect 1. Fleta lib. 3. cap. 2. sect. 1. Cowell Institut. loco citat: sect 12. De feris, piscibus, avibus illud notandum est: Qui imperium habet in terras & aquas ejus lege impedici posse aliquos, ne feras, pisces: aves capere, & capiendo acquitere eis liceat: atque hac lege etiam teneri exteros. Ratio est, &c. Nec obstat quod saepe in jure Romano legimus, jure naturae aut gentium liberum esse talia animalia venari: hoc eim verum est quamdiu nulla lex civilis inter­cedit; sicut lex Romana res multas relin [...]uebat in illo primaevo statu, de quibus alia gentes aliud con­stituerunt. Cum autem lex civilis aliud constituit a eam observari debere jus ipsum naturae dictat: Grot. de jur. Bell. 2, 2. sect. 5. the Kings; and so gene­rally we are ruled by our selves: Our own law is the measure of our own right; we have that, and that alone, but that firm, and it is injury, and that injury alone to dispossess us of, that our own nationall, home-binding Laws have setled as they have; That, is Here nothing else, right or wrong.

Some seem to go farther, in requiring to property in the Common-wealth a right in Religion; to have a right in Christ or none in the Creature, for whose sakes is that que­stion cut. out: An dominium temporale fundetur in gratia? or as others, An gratia sit fundamentum dominii temporalis? but (besides that, the discussion hereof moves properly in ano­ther sphere,) I beleeve if they be understood aright, their desires may not be altogether irregular: for of that Civill Right we speak of, they require and seem to have enough in [Page 49] Civill determinations. To purifie so the conscience in the sight of God, they may say perhaps we must have more; our nature amended, by Christ sanctified, and by ap­plication of him himself owned, and so only to the Pure are all things Thus pure: But to peace and order and right among men, here the determinations of the lower scene are enough; and he breaks humane laws that couzens or steals what is but so setled by them; and by consequent Gods, be­cause Mans.

It were hard to say, that, as on the one side a sanctified man should finde no more sweet in Gods blessings of the same kinde then a heathen or a publican; so on the other, that any should be so vain to think that a wicked man is thereby an out-law, having no faster seat in his possessions, then that a godly neighbor may turn him our of doors to morrow, and by vertue of his share in Christ (the heir of all things) create himself a principality in present of all the wicked mens wealth in the world. The Indian is sure master of his own gold and spices; the King of Spain of his Indies; and a Jew or Turk of their severall Owns; nor can the most deboist Ruffian amongst us (worse in some regard then Turk, Spaniard, or Indian) but be so true and rightfull a Master of his own wealth, that his most hellish wickedness cannot turn him out of it in this world, (unless his prodigality do) that he should be henceforth a thief of his own wine or cates, or so meer an usurper that any of Gods servants may usurp from him in­deed, and rob him as the Israelites did the Egyptians in equity and conscience. Far be this from every one has truly learned Christ so to think or do. 'Tis fit every swine have his own stye, every dog be let alone in own kennell: The grace of Christ teaches us to use our own, not censure others; to be thankfull for what we have, not covet what is other mens. There were that it hath been laid to their charge they have endevoured to subvert those laws, to bring in the Civill, and do some such things as Stephen was accused to say Jesus of Nazareth meant, To change the Ordinances that Moses gave them, Acts 6. 14. & vid. Cap. 21. 21. So these, what K. Alured, St Edward, King Edward, Henry, Elizabeth, [Page 50] James, and other Law-founders have with much bounty of wisdome distributed out unto us: But if, this would have been such a transcendent attempt both of folly and tyranny that it would have ushered in more injury then ever the Con­queror could, who changed the Governor, but could not the Laws, kept and was forced to keep that body intire, only he set himself a new head at top, and would have rendred them questionless guilty of that Crimen laesae Majestatis, or highest offence, whereof Glanvill speaks in the very beginning of his Book, De nece vel seditione domini Regis vel Regni, leaving little else for a foraign Enemy to do, sith the taking off these would consequentially have taken away all things. For pretend they to amend hereby what they would, bring in the twelve Tables, the politicall part of the wise Alco­ran, the Partidaes of Spain, Arrests of France, or whole voluminous bulk of Justinian and Accursius, there could have followed nothing else with us but unsetledness of all mens estates, (which are the gift of our Law alone, and by that alone guarded and preserved) disorder, ignorance, mul­tiplicity, uncertainty, and to those that had any thing the worst undoing even by law, and that this should settle them besides their own, all they are now owners of: For new instruments, must have a new work, a new-fashioned rule draw a new-formed line, a new Law have a new Righteousnesse, and so our Fees, Socages, Burgages, Claims, Entries, &c. would all have been put out of their old course, into another, that new, and perhaps not consistent with our Government, perhaps, not with our selves; and in a word, a New right, and what were then become of the old, and All, as many as had any thing by it? Some would have stuck to this; others to that; another parcell to neither; a fourth (only to the right) that we had and is best because fittest, and used, loath to stay in Babylon when they saw hopes of Sion, while in the mean time all vary, and Sion is made no better then Babylon. No whole part can tell whither to take, and unity being gone, thereby a new sad way paved in division, to war, poverty, ruine, desolation, and by Anarchy extreme disorder and very confusion. Let them bear their rebuke whosoever they be [Page 51] that should have attempted things so monstrously exorbitant, and full of sin as well as injustice; All 'tis like would have been hereby at stake, if not All lost: for our Law gives and preserves us All, and the taking away this, or changing, must needs then have taken away or indangered All: According to what a Lord Chief Justice said not long since, The Law is the most common birth-right that the Subject hath for the safeguard and defence not only of Goods, Lands, and Revenue, but of Wife and Children, body, fame, and life, Cook Instit. 1. and Bracton before, Justitiu dat unicuique quod suum est, lib. 1. cap. 4. All is the bequest of Justice, and the parent and guide thereof is the Law.

And thus my Porch or preparatory Preface seems well nigh finished, raised upon six Pillars, as I take it, of firmnesse enough, touching the nature, ground, rise, growth, strength, and perfection of ours and all Civill Rights. There may have been some mistake in tempering the morter, disordering the materials, or blemishing the whole by unskilfull hand­ling, but the truths howsoever seem solid, and their use e­nough, chiefly in this, relating (for which they were given) to all follows, That, if this be the nature of Civill Right, and All mens best, and tythes have This, in any ones disturbing them, he must needs disturb what hath the common founda­tion, in with-holding them he with-holds what is due by as good Right, as any man claimes any thing by, he undermines that which is the stay and support of his own house or wealth, and does what if the like should be done to him, would leave him Nothing, because He destroys that preserves and gives to him and All others Every thing. If we all rest upon one strength, and this be it, imbarque in one bottom, stand upon one leg, and settle upon one and the same bough, let any Englishman take heed how he meddle with this common support, lest he infirm his own, and not be too venturous of the strokes of his Axe, for fear of danger to himself, by cutting the bough himself in his greatnesse, stands upon. He may think to pare about craftily, and with such prudent cau­tion and an eye to himself, weaken the whole, that there be [Page 52] strength enough left to support his Own Right: But this is neither safe nor honest: Not safe to tamper with a common foundation, to sprinkle fire in the next thatch, that may catch home; to bore a hole at the other end of the vessel where a neighbours wealth lyes, thinking his own safe. Not honest, to designe any other mens equally Just and Due rights to be fed and preyed upon, to increase ones own heap, by taking (or with-holding) from anothers, or to wish the next house pulled down, and the inhabitants turned to the Common, that one may take as much as he needs of the spoil to multi­ply or strengthen the Studds of ones own building.

That which is just and Right shalt thou do, is the rule of the holy Law, This is neither: That thy Brother may live as well as Thou, a mercifull and conscionable rule in Israel; This takes away Brother Levi's life, and leaves him a Beggar with others plenty. A Beggar is not uncapable of bounty, nor unfurnished with a hand to take what another shall arbi­trarily give: But we are not so unacquainted with the holy Law of God, as not to know what heavy censures are there registred against those whose oppression, covetousnesse, or with-holding what is due shall make beggars. Now Levi's an owner, as well as Judah, and by the same right as Simeon or Benjamin. The same equal universal all-giving, all-preser­ving Rule of Right, the Sacred common law gives Him his, and others Theirs: 'Tis the pillar of the temple upon mount Mo [...]iah, as well as the palace upon mount Sion, stablishes the Church-house, as well as the farm or Cottage, and gi­ving every one his own, gives the Tenth part out of the Nine, as well as the Nine whereout was taken the tenth. Quod restat demonstrandum: But first it may not be unprofitable to recapitulate, and shew how one and the same thing may drive it self through all the fore-going considerations: Take for instance a piece of gold, or Anything, and see how those truths take place, or in this manner have their severall operations, Thus.

I. In absolute consideration it is no ones: no more pro­perty of it by God or nature, then of the moon and stars: 'Tis mine, thine, his, every ones, no ones.

[Page 53] II, Yet it may be owned, or else much of the good of it would be lost, and the Courteous intents even of smiling for­tune rejected by a sullen neglect of her proffered cheap fa­vors. But,

III. Who shall make this division? I may not, nor another, nor another, nor any Man; Therefore 'tis fit, the Law.

IV. Which varying, yet all have agreed in some things, and that wherein they all agree is the best rule of partition and possession in the world.

V. But if severall States have fancies and wayes by them­selves, not finding what is commonly good to be best for them, they May, and their severall Owns be, what they by their select rules shall have chosen.

VI. And particularly in England, that under severall forms we have agreed to make severall parts of our one Rule, the English Law. So that then the gold above was

  • 1. No ones: Yet
  • 2. Might be some ones.
  • 3. Whose, not Man, but the Law gives it to. The Law, I say
  • 4. Universall in the world.
  • 5. Particular (over-ruling) in any place.
  • 6. With us, Ours.

Or cast an eye upon a piece of ground

I. That is certainly no ones by God or Nature; for shew me the text or clear reason that says 'tis, whose?

II.Do not all man­kinde know, that severall men may have several rights and inte­rests in the self­same house and land, and yet neither destroy the other? Is not the interest of the Lord paramount consistent with that of the Mesne, and his with that of the Tenant; and yet their properties and interest not at all confounded? King Charles his answer to the Remonstrance touching HVLL. 26. Maii, 1642. pag. 5. Yet it may be inclosed, (God forbid else!) For, are all possessors usurpers? or the word of God without meaning, that says, Enter not into the field of the fatherless? sure, he may have a field.

[Page 54] III. Who hath inclosed? who might? Surely, no Man. Therefore the Law.

IV. According to what Effata, or oracular determinations thereof? In the world by the rules of the world: 'Tis his who hath most need, who first entred, who does possess, &c.

V. In a region who hath bought, inherited, succeeded, obtained, by descent, donation, exchange, purchase, &c. accor­ding to the forms of that Region.

VI. In Our nation, who by the just, pertinent, and impar­tiall sentence and application of those all-giving forms with us it is setled upon, which also admits of some further varia­tion: For,

  • 1. By unquestioned maxime the whole originally was the Kings. He was Directus Dominus totius, though the Dominium Ʋtile might be transferred to others. No Alodyes left amongst us: Inde­pendency (of all and absolute) a Monster. All the beams that shine below in the lower world come first from the sun, and what is in private stock from the publick store.
  • 2. Yet all is not his now pleno jure, in full possession, and round about every ways: for he hath parted with Fees, Feefarms, Serjeanties, Socages, &c. to intrusted Lords.
  • 3. His honours have Mannors, as Chips of the great block, whereof the Masters think they are to have some subordinate right.
  • 4. And those Mannors also their sub-subordinate de­pendencies of free and copy-holders.
  • 5. Either of which may have also their under-tenants, for term of years, life, will, &c.
  • 6. And these also let out the fruit to one degree lower, him that dwels in the house, manures the land, and immediatly, actually uses and possesses what so many others have their distinct superior rights and titles in.

[Page 55] Thus we see what may be by supra and substitution, how many considerations the same thing may passe through (each of which gives a new face,) before it settle any where: and how many things we must have considera­tion of, before we can distinctly know what is whose, and what Right, and no more, any one hath in any thing. Of all which the Basis is still the Law, wherein what footing, or rather rooting TYTHES have, is our work chiefly intended, and now next to be set about.

CHAP. VII.

WHat right then have Tythes? I answer briefly, Manifold. It often comes to passe it is so, and that one and the same thing hath many firm bottoms to settle on: Two feet for the more strength, two strings to the same bow, though one be enough, and four bet­ter then two; for a surplusage of strength does no way tend to weak­ness, nor an accumulation of titles mutually weaken or de­stroy: Now at least three distinct Rights, and each strong enough are here:

  • I. Of Donation.
  • II. Possession.
  • III. Prescription.

Tythes were

  • 1. Given.
  • 2. Are possessed.
  • 3. May be prescribed for.

Nothing they say is more free then gift; 'tis naturall, that what I have is mine own; 'tis strong if a long time I have had it, and All these conspire and meet to settle Tythes where they are. 1. One limb of everybody of the Law is, de Do­nationibus, and after many rules and cautions,I [...]em acquiritur nobis dominium jure civili ex causa donationis. the result is, an undoubted Right thereby. 2. What I have is mine own, it is so, I know it, and till the contrary be evinced, the world will judge on my behalf.Fleta lib. 3. cap. 2. sect. 17. 3. Continuance of posses­sion (just or unjust) shall create a Right.Bracton. 2. 4. 1. Cowell Institut. lib 2. tit. 7. sect. 1. Hen. 8. He that once had title to the house I dwel in, let him come after a hundred yeer pos­session (in my self and ancestors) I dare now joyn issue with [Page 57] him, it is Mine and not His, because I have Kept it. These things are known enough, and I aver they all meet here, that Tythes Were given, Are possessed, and Long enough to create prescription; A threefold cord is not easily broken, and here is that complication of 1. Donation sufficient. 2. Posses­sion undoubted. 3. And Prescription for time over and over. To which adde, that each of these pillars hath also another strong stay by, to support the weight laid on it: Donation is bettered by Confirmation: Possession secured by him in whose right the possession is; Dedimus Deo was the form of grant, and is the ground so claim: Prescription is lengthened through more then half twenty times over so much as would simply serve the turn: And if these things be so, and they are, and all, and known, by the Law, be this supposed, and me thinks we may sing victoria almost already.

But they remain to be proved; by Gods blessing they shall: There is neither of them but lies clear in view to those are acquainted in those regions of knowledge (whether of Books or Experience) where a likely information of any of them is to be looked for; and I shall yet add one thing more as a Coronis at top, the opinion of the Learned in their own pro­fession. One single self may have been deceived not inex­cusably; 'Tis hard for a stander by to be acquainted in all the rooms of a neighbors house; some sparks of true light have sometimes (by their not right use) but led private men to Errour; But as witnesses produced go for proof usually, and their agreement strengthens their testimony, and a conspira­tion of them professing to know, is the fairest of all presum­ptions against mistake.

If therefore the Lawyers themselves have apprehended thus with me, if they have combined and conjoyned to say so, if there have bin that combination and consent that they All have said so, and till within these few years no One would have been Fee'd to the contrary; nor, if he understands him­self, will yet: from All these I shall not doubt to inferr a strength of presumption, that what men have said, the lear­ned have said, the Lawyers have said, and All of them both have and doe, (no one to be hired to the contrary, whereas [Page 58] they come in gratis on the other part,) hath much more then likelihood that it may be true which they aver, and for their assertion sake. From whence may we expect Credi­bility, if not from the voice of men, of All men, and they agreeing, and the Seers themselves giving their vote? In ore duorum vel trium stabit omne verbum, says the Divine Law, 2 Cor. 13. 1. Num. 35. 30. Deut. 17. 6. cap. 19. 15. Mat. 18. 16. John 8. 17. Heb. 10. 28. How much more, In assensu & con­sensu omnium & singulorum? That is a bad case which ad­mits no plea, that no one will be hired to undertake, or can colour for, that neither hath substance nor shew. If there­fore the grave and learned Judges (the Oracles of the Law) have gone this way, if the other reverend Sages (I compre­hend all graduated professors) take in along with them, if it be the painfull knowledg of the Student, the costly know­ledg of the Country-man, the experienced knowledg of most men, the generall allowance of All men; Doubtless that must be so which one says, and another says, and a third says, and a fourth says, and every body says is so; and most likely when the professing too, know, joyn in, and say so like­wise.

We have made room enough, a large field to expatiate in: God be our guide, as Truth our aim, and success but as the righteousness of our Cause shall deserve for us: The first part of the plea was Donation: Which, because it is like to be large, the fast Corner stone whereupon to settle the chief­est of what follows, something would be said what it is, who may give, what, to whom, &c. It may not be safe to go on of our own heads. Here therefore again for the help of the Sages,

Donation then (saysEst autem Donatio quaedam insti [...]u [...]io quae ex mera l [...]eralitate, & voluntate, nullo jure cogente, procedit, ut rem transfer at ad alium. De acquir, rerum dom, cap. 2. sect. 2. fol. 11. Bracton) is a certain Institution that proceeds from meer bounty and will, no law forcing, to transferr a thing to another. Or, To give, (saysDare autem est rem accipientis facere cum effectu. Flot. lib. 3. cap. 3. sect 1. Fleta) [Page 59] is to make any thing his that receives it. ButEt est propriè don [...]tio alienatio rei quae liberali­tatis causa fit, hac mente, ut nullo casu recipi­atur. Parotit-ad F. de donationibus. Cuiacius lately thinks he hath hit it better then both, making it Pro­perly the free alienation of any thing, with this minde that it shall not revert to the Donor. The first of these may leave a rub in the way to hinder that we would by no means oppose in all this Tract, the free progress of that opinion, that Tythes are due Jure Divino: As if they be, how can we say they were Given in the sense there, ex mera liberalitate, nullo jure cogente: Or if theDonari vide­tur quod nullo jure cogente conceditur. F. de diversis reg. II 82. Divine law did inforce, then how are they in this sense clearly given? I answer, well enough; as well as a man may give that which God had said before he should give; or do that freely, which the scripture yet irre­versibly commands he should do: Give an Alms to a poor man, says the Scripture: which man does of himself, (the rather for that command) freely, and yet the divine Law was inforce, and obeyed, to part with that a man was not bound to part with.

Give the seventh part of thy time, says the fourth Com­mandment; yet 'twas a voluntaryQuarto deci­mo statuitur loco, ut Dominicus d es legitima ve­neratione à cunctis celebretur, sit (que) Divino tantum cultui dedicatus;—Omissis (que) exterioribus negotiis, atque secularium conventibus, atque it [...]neribus: nisi inexcusabilis quaelibet causa urgeat, religiosae con­versationis ac benè vivendi normulam de sacrae scripturae eloquiis subjectis famulis praedicando insinuene. Sed & hoc quoque dece [...]nitur quod eo die sive per alias festivitates majores, populus per Sacerdotes Dei ad ecclesiam saepiùs inv [...]tatus, ad audiendum verbum Dei conveniat, missarumque sacramentis, ac doctrinae sermonibus frequentiùs adsit. Concil. Cloves. an Chr. 747. cap. 14. apud D. S [...]elman, concil Britan. pag. 2 [...]9 Die dominico nihil aliud agendum est, nisi Deo vacandum, in hymnis & psalmis & canticis spiritalibus. Excerpt. Egbert. 104. circa an. Chr 750. th pag. 268. And for the forbearing of working, hunting, mercating, impleading, &c. are other fuller Laws: How the master should be punished, how the servant, &c. which by de­grees brought off men from their accustomed common employments. vid. L. Inae Regni 3. circa ann 710. in Lambard. Archaion. pa 1. & Spel n Concil. p 183. Concil. Bergamsted. ad ann. 697. can. 10, 11, 12 ib. pag. 195. Excerp. Egbert. 36. pag. 262. Foedus Edvardi & Gutharin regum. cap. 7 & 9. apud Lambard. Arch. pag 43. agreeing with those under the title of, Leges Eccles. ab Alured & Guth. R. L. latae cap 10, 11. apud Spelm. pag. 3 [...]7. L Ecclesiast. Ae [...]helstani R. circa an. 928. cap. 6. ib. pag. 400. Constit. Odonis circa ann 943. cap. 9. ib. pag 417. Leg. Eccles. Edgari R. ad an. 967. cap. 5. ib. pag. 445. & cap. 6. pag. 446. Canones dati sub Edgar. cap. 19. ib. pag. 4 [...]0. Concil. Aenham. circa ann. 1009. K. 30. L. Eccles. Canuti R. circa ann. 1032 cap. 14, 15 apud Lambard. pag. 103. L. Eccles. Canuti, cap 14 & Capitulare inversi temporis & authoris: cap. 14. in Spelman. pag. 600. All which things and the re-inforcement of so many, do shew how hardly men were drawn off their own wayes: what need the Commandment of God hath of the abetting law of man that it may take place; and how clearly and fully that may be after given by man, which God appointed to be given: And this, 'tis like, a that alone, which gave the due Sabbath day to God here with us. Act of our State, that in obedience to that command, but freely in it self, set aside this part here with us; They might, or they might not, else [Page 60] they had not been free: but now, besides the fourth Com­mand: it is secondly due to humane Justice (appointing it,) to have the Sabbath sanctified: So, Give the Lord the Tenth with a good eye, is interpreted to us the heavenly Oracle; yet when the believers came to obey, they did it freely, which they might not have done: Nullo jure cogente, that is, none of the same sort, none on the same floor, no humane lower posi­tive law having set aside any thing, or commanded, though the higher Divine law had bound it to be more then expedient, which yet might not have been obeyed. The summe is, God may have said, the Tenth should be paid, Man have not o­beyed; but he did, and gave by the perswasive influence of Divine command, that which was his own, and he was bound by no humane Law before to have given: and so here is a a commanded, obeyed, and yet free and voluntary Do­nation.

But, to go on, Donation, which was as before, is divided intoDonationum alia simplex & pura, sc. quae nullo jure civili vel naturali cogente, nullo pretio, metu, vel vi interveniente, ex mera & gra­tuita liberalitate donantis, proce­dit: Item alia fit ob causam, vbi sc. causa interponitur, ut aliquid fiat vel non fiat, &c. Et hoc genus donationis impropriè dicitur donat [...]o [...] Bract. lib. 2. cap. 5. sect. 3. free, absolute, illimited, and meerly voluntary, or sub modo, under limitation or Condition, as, Do ut des, or Do ut faciat, &c. Now although this be in it self more avoidable, as letting out into more ways of evasion, yet if the thing conditioned be of evident necessity, as, I give that thou shouldst preserve this man from starving, to do such a thing necessary in publick, or for the service of God, which is most necessary, or the like; Now in this case the necessity of performance mounts up with the needfulness of the thing depending, for it is more expedient that such necessary things in themselves should not be left undone, then any ones simple, declared, single will thrung in to take place, which yet in Justice ought, though in this necessity (comparatively) it ought not.

Further, who may give? and 'tis answered, All, that are under no prohibition: As, areDare autem non poterunt illi, qui generalem rerum sua [...]ū non habent administrationem, sicut sunt minores, incarcera [...], surdi & muti, & naturaliter furiosi, &c. Fleta. Iob. 3. cap. 3. sect. 10. those that have no [Page 61] power of themselves, as Pupils, who are like to make their conditionVid. Bract. de acquirend. rerum dom. fol. 12. worse, (though they may contract to benefit, though not to loss;) and for this reason the Church also, Vice autem minoris fungitur Ecclesia Dei: id. ib. & fo. 32. & Cook Instis. 1. fol 34 sect. 644. Agreeing with the like favour of the Civill law. which is alwayes as a Minor: likewise the deaf and dumb, &c. nor theIdem dicendum erit in rectoribus Ecclesiarum qui nihil possident nisi nomine Ecclesiae suae, unde nihil dare possunt, alienare vel permutare, nisi de consensu episcopi vel patroni, nisi inde melioretur conditio Ecclesiae: Si autem deterioretur non valet, quia sit eis donatio secundario, sicut maximè patet in ipsa dedicatione, & etiam post dedicationem, Do Deo & Ecclesiae tali, &c. Bracton, ubi supra. person of a Church, because he is in possession, but in right of his Church, and so hath nothing to give, for what he hath was given Deo & Ecclesiae, who are the proprietaries, he but the usu-fructuary, and so cannot dispose of anothers.

For, to whom;Flet. lib. 3. c. 4. sect. 1. pag. 179. Bracton. ubi supra. To any one: Bond or free, Minor, or of full age, Jew or Christian, But not to a wife, notQuibus dare inhibetur: Fleta lib. eod cap. 5. & Magn. Chart. c. 36. to the Church in Mort-maine, except by license, (for every thing is to be kept within its due bounds; and a proportio­nable equality is like to be the Mother of longest duration: A monstrous growth tends to the sooner ruine, of it self or the whole; and therefore in its favour it is provided, the Church may not spread too big, lest pondere pressa suo, it fall with its own unweildiness.

Lastly, What may be given? what is Corporall or in visi­ble, a possession or a right, a whole or a part, but not what isNullius au­tem sunt res sa­crae & religiosae & sanctae. Quod enim divini juris est, id nullius in bonis est. Instit. 2. de rerum divisione. sect 7. F. [...]ib. 1. tit. 8. lib 2. sect. sacrae. Bracton. lib. 1. cap. 12. sect. 8. Extra patrimonium verò res sacrae & Communes: Fet. lib. 3. cap. 1. sect. 3. no ones, as is every thing sacred: This is supposed out of every ones reach; 'tis no bodies (on earth) and so none can layItem donari non poterit res quae possideri non potest, sicut res sacra vel religiosa vel quasi qua­lis est res fisci: Bracton fol. 14 hand of it to give it forth to another.

CHAP. VIII.

THese things may seem needfull to have been pre-considered of gifts, to the intent what follows may not seem to have crossed the generall Doctrine. Among particular in­stances whereof to our purpose,A little before the year after Christ, 600. begin first with the head, that which was to Augustine, or in that Augustines time whom some love to call the Apostle of the English men: who found most of this English part of the Isle as Barbarous, as the whole is like to be when covetous men may save this expence. We censure not what the grace or power of God can do, but in likelyhood what he will. Miracles are not to be multiplyed without cause, nor he to be put out of his ordinary course of By-causes; according to which we are likewise to expect and judge that will be, in humane probability is by them Like to be. He then found here the land dark as Sodome, the souls of men over-spread with Atheism and Idolatry, and no truth or knowledg of God, which he divulged successfully, and took care, (or the blessed Providence of God brought to pass) that the Vine and the Elm were planted and have grown com­fortably together, Christian Religion and this acknowledged good support thereof being by one and the same Hand here planted and rooted; and as they were born, and have lived, if any be, God grant as Twins they be not taken away toge­ther also.

But whence does this appear? we should gladly have ta­ken it up from Bede or Malmsbury, or any other creditable story, but we have it from what was more authentick, the most substantiall credit of a solemn law: By all mens leave, This [Page 63] shall be more creditable then any private Mans words; what is planted and shining in any publick past law, being less sub­ject to forgery and subornation then any single simple mans Testimony whatsoever. In King Edward the Confessors Laws then thus we finde.

Of allDe omni annona, &c. The Latin is after transcribed, pa. 79. Corn the Tenth sheaf is due unto God, and so to be paid. And if any keep Mares, the Tenth Colt; but if he have but one or two, so many pence. So if any keep kine, the Tenth Calf; or if one or two, so many half pence. He that makes Cheeses, the Tenth; or if not, the Tenth days milk. In like manner, Lamb, Wooll, Sheep, Butter, Pigs, of all the Tenth. The tenth also of the commodity of Bees, and of Wood, Medow, Waters, Mils, Parks, Ponds, &c. the Tenth to him that gives both Nine and the Tenth. He that detain­eth, let him be forced by publick Justice, (so I interpret that called there the Kings and the Bishops, because their powers were then represented together to confirm both ways, Civilly and Ecclesiastically:) for so preached and taught blessed Augustine, and so was granted by the King, the Lords, and the People.

Thus far that solemn Law, the authority of whose testi­mony we shallVid. pa 90, 91, &c. hereafter more fully set forth, when, for the sake thereof, we shall shew the whole collection to be one of the ancientest pieces of the Common law, so often called for by the people, confirmed by the King, and entred into the Coronation Oath, &c. In the mean while, by all the credit this testimony can give, Augustine preached Tythes, the People believed, the King and Parliament granted; for what can be less meant by, Concessa sunt à Rege, Baronibus, & Populo? and under the specification of Colt, Lambs, Fleece, Corn, Milk, Honey, and most particulars claimed.

Let no man take advantage, by thinking me so unadvised as to suppose Parliaments so early under that name, which I know came in long after, and whatsoever should carry that title applyed in strictness to any thing beyond a good way in the Norman times, I should suspect it for Counterfeit: but that Publick meeting which had the power and vote of the Land, consisting of the Head and its subordinate Members, [Page 64] call it Senate, Gemote, Court, Councell, or whatsoever else, the Collection and Congregation of the Land granted this.

Object. I know well what may be said to the contrary: as that Bede who lived soon after, and reports that story of Conversion at large,Vid. Hist. Eccles. lib. 1. cap. 26. in fiu. & cap. 27. Interog. 1. and is most authentick for those times and the following, sayes nothing of any such thing: not when he had just occasion so to doe: for he speaks both of Augustines entertainment (a few lands) and his sending back to Rome about Church-maintenance in gene­rall, and how it should be divided, but not a word of TYTHES.

Whereunto I answer, True this: but, what then?

Answ. 1. Negative testimonies are the weakest of proofs, upon the matter no proof at all; as silent witnesses that say nothing.

If Bede had said any thing we should have much listened, and that whether he had spoke against or for us; but saying nothing he is but a mute, and no more to be regarded strictly, then he that is called, comes in, and is silent.

2. As to his yet mentioning other things neer, the time of both was but when yet things were raw: when he had not preached, nor the people beleeved, or in reward setled what they may have afterwards. Time does much, nothing is be­gun and perfected at once; the story is plain, the questions sent to Rome, of which we have account, were, the first re­turn of Austines success: and petition for supply of Councel thence, and so might prevent what was after done, and it be too soon there to mention what was not till after, granted.

3. And the first of those questions was onely of oblations, as a part, and whereof might be the greatest doubt, not exclusive of other things.

4. Neither were those oblations all that was, positively: for Austine had then other things, & so that expression not so full and comprehensive as to infer any thing from it as compleat. For the King had given himDedit ergo eis mansionem in Civitate Doro­vernenst (quae imperii sui to­tius erat Metropolis) Eisque ut promiserat, cum administratione victus temporalis licentiam quoque prae­dicandi non abstulit. cap. 25. good intertainment at first, [Page 65] (no doubt continued) andNee distulit quin ipsis suis doctor bu [...] locum sedis eorum gra­dui congruum, in Dorovernia Me­tropoli sua dona­ret, simul & ne­cessarias in diver­sis speciebus possessiones con­serret, id. cap. 26. afterward, befitting his degree, as one to whom he had intrusted his soul, another placeDonatusque à Regeurbe regia Cantuaria in Episcopalem fedem, & aula Regia in Ecclesiam Ca­thedralem Christo erigendam: sic ut aemulari Rex videtur quod ab Imperatore Constantino Magno fa­ctum perhibent. Vita sancti August. apud D. Spelman. Concil. p. 91. I think his own palace in Canterbury, with needful accom­modations of severall sorts. What those Necessariae in di­versis speciebus possessiones, were, I know not: I beleeve they could not be comprehended within the oblations in the que­stion mentioned, and so that not comprehensive of all was allowed.

5. 'Tis yet liker they were Tythes, in specie, for King Alured seems to have borrowed such a law from this King. My rea­son is, because when after he composed a body, with a preface as from Leviticus, wherof one branch is for Tythes, he says of the whole, that he thought itHas ego Aluredus Rex sanctiones in u­num Collegi, atque easdem literis mandavi, quarum bonam certè partem ma­jures nostri Re­l [...]giosè colue­runt, multa etiam &c. Ac quo­niam temeritatis videatur exsuis ipsius decretis quenquam plura literarum monumentis consignare, tum etiam incertum sit qualem apud posteros habitura sint fidem quae nos magni facimus, quaecunque in Actis Inae gentilis Mei, Offae Merciorum regis, vel Etheiberti, (qui primus Anglorum sacro tinctus est baptismate) observatu digna deprehendi, ca collegi omnia, reliqua planè omisi: Lamb. Arch. p 22. Spelm. Concil. p. 363. too great presumption for him to attempt any such thing first anew, and therefore he modestly borrowed, with the advice of his Councell, from his Ancestors Ina, Offa, and this Ethelbert, Qui primus Anglorum sacro tinctus est Baptismate, the first of Christians. Now for Ina we are sure enough of him, by the laws extant, he had none such; if Offa had, then either this was that Alfred related to, or it was not. If it were, then has Offa's Law much confirmation in this of Alfred: If it were not, there could be no other to relate to, but this of Ethelbert.

6. Yet more likely, for that before Any other Act passed (this of Offa or any other, that we read of) here were tythes said to be paid: ForIn an Epistle to Cuthbert Arch­bishop of Canter­bury, de corri­gendis vitiis Anglorum, about the year 745. id pag. 240. Boniface Archbishop of Mentz, blames the then Clergy here for neglecting their Cures, yet Lac & la­nam ovium Christi oblationibus cotidianis ac decimis fidelium accipiunt. Now he lived about the year 745. and before Offa, or any other Act we read of but that of Ethelbert.

[Page 66] This sure: we have here a plain affirmation, in a clear law, and so not rashly to be left for any private conjectures, or blinde presumptions, and that in such a place, that, save in Domus-Dei book, or a few other, we might not look for more authentick from the tendryes of that age. Some cre­dit uses to be given to places; we least suspect forgery in a Church-window, or Palace-Inscription; and an histori­cal truth shall never shine with that evidence, light and credibility to my soul from Tacitus or Tranquillus, as casually let fall or ingraven in the face of a Roman-law, or publikly inscribed in the commanding Pandects or Novells. Especially sith, here was said to be a consent of King and peo­ple: which last if they had not consented, here would have been worke enough: every simple man would have been a single ac­cuser, & every neighbour at hand a ready witness: Kings Acts may have many eyes upon them; but to father any thing up­on the people undone or untrue, were to create a Commonal­ty of enemies at once, every one with his accusation ready to clamor loud enough against the forgery.

We will say then, Austine preached tythes; and the King, Barons, and people beleeved, and obeyed and conferred them: And observe thereon, their date began with the Bi­bles entertainment; tything and preaching went together at the first, from the first and alwayes. 'Tis uncourteous to part old friends, hard to slope the skin from the flesh, dange­rous what hath long gone and grown together. Accustom­ed food proves lightly wholsomest, they that change for better often fall sick of their remedy, and to be weaned from that an aged man hath been accustomed to, and found wholesome from infancy, cannot but create much danger to the body by change, if not utter dissolution. Which 'tis easie to apply here; and sith, minister to Christ, and live by Tythes, are so intwined together among us as they are, and alwayes have been, God grant the event extend not beyond good mens de­sires, intents, doubts, or fears, that the whole frame of the long continued Church, sink and fayle, upon stirring (if they should be stirred) this united and neer co-incorporate pillar [Page 67] that hath hitherto outwardly sustained it. If it be charge or trouble, it may be born by the experience of a thousand years: If men love their ease now, so they did heretofore: If they are now wise, they were not then altogether desti­tute of wisdom: Lay together, that the clear policy of the Old-Testament went thus all along, the generall practise of the New-Testament hath been according; Here with us ever since the bright shine of the Gospel dispelled heathenish darkness, and from the very day-break of Christianity to this instant, it hath been judged best, and is; what new plots would do is uncertain, and may have the accompanying dan­ger of experiment upon sick or sound bodies to disturb what is strong, or ruine what is decaying.

CHAP. IX.

BUt to proceed: and in what follows we may perhaps light on more clearness and particu­larity: At the darkness of this remote di­stance we may not look to see every Mote, but as things draw nearer, so shall we see clearer. This of Augustines time may have been only in Kent, for there he setled and Chiefly lived; the next will look to the cold Climate, and in the next Missive, (which was about 200 years after,) see what took effect more Northernly: sc. The account of these meetings in these and more cir­cumstances is re­turned in an Epi­stle to Rome about the year 786. when the things were done by one of the Com­missioners, and published by Illy­ricus in his Centu­ries: Vid. Cent. 8. cap 9. col. 316. edit. 1624. In an Embassage directed to Offa King of Mercenland, and Aelfwald K. of Northumberland with their Archbishops, where the Commissioners were Gregory bishop of Ostia, The­ophylact of Todi (in Italy both) and they came first to Offa, (it seems because nearest) and he, (because the business might concern him) sent and called to councel Kenwolfe, (or Kynewlfe) King of the West Saxons. There the work was di­stributed: Theophylact stays about Mercenland and Wales; Gregory and his assistants go to Aelfwald (or Osward King of Northumberland and Eanbal his Arch-bishop, where a Parliament was summoned, or that which had the nature thereof, a meeting of both States, (Convenerunt omnes princi­pes regionis tàm Ecclesiastici quàm seculares,) and the 17 of their decisions this; Decimum Septimum caput: Ib. col. 320. de decimis dandis sicut in lege scriptum est: of setling tythes according to the Law.Decimam partem ex omni­bus frugibus tuis, seu primitiis de­feras in domum Domini Dei tui. Rursum per pro­phetam: Adserte inquit, omnem decimam, &c. ib. The tenth part of all thy fruit, or thy first fruits thou shalt bring into the house of the Lord. And a­gain by the prophet, Bring all the tythes into my barn, that there may be meat in my house, and prove me in this, if I will not open the windows of Heaven, and pour out blessing [Page 69] abundantly: and I will rebuke the Devourer for your sakes that destroys the fruit of your land, and there shall not be a vine barren in your field; the Lord saith it. As the wise man speakes, no man can give his own alms of his own, unless he first separate to the Lord what from the beginning he hath re­quired to be his. And hence often it cometh that he that will not give the tenth, is reduced to the tenth. Whence with all earnestness we command, that All study to give the tenth of all they possess, because it is the Lords peculiar, (or reserve) and live of the nine, and be bountiful as they can.

This was proposed in the Assembly, and besides the King and Clergy, confirmed with the assent and subcription of all the Elders, Captains, and people of the land;His quoque saluberrimis ad­monitionibus, Presbyteri, Dia­coni Ecclesiarum, & Abbates Mo­nasteriorum, Iu­dices, Optimates, & Nobiles uno opere, uno ore consentimus & subscripsimus. Ib. consenting the Judges, Peers, and Nobles: And so to King Offa and his Elders (or Senators, or Councellors, Senatores is the word) who did the like, his Princes and Clergy setting their markes: Brorda Dux signo sanctae crucis subscripsi. Faxwald us Dux subscripsi. Beroaldus Dux subscripsi. Othbaldus Dux subscripsi: with a cross as the manner then was in their se­rious and religious confirmations.

A most observable Law, says Mr. Selden, if it be genuine, (as why should it not?) being made by both States, and of two Kingdoms: It is not like Illyricus forged it, or would venture it to light, without some Authentick authority, con­sidering who he was; and what he is there a doing: the phrase, stile, and forme speake much the tone of that age: OurVid. Concil. Brit. pa 291. & pag. 298. Sir Henry Spelman followes him in the substance, though not in the circumstance, giving it due place in our Councels since published; and unless we will question every thing, why should we this? He hath added the name of the place, Concilium Calchuthense, that is either Chalchuth, or Calchuth, or Celchyth, or Cealtide: for these several varia­tions I find; which Camden places in Northumberland, though he had rather finde it in the higher Climate of some part of Mercia: I should seek for it between York and Durham.

CHAP. X.

ONe thing more is observable, that although Kenulph King of West-Saxon-rie were present at the first de­livery of the Letters, we hear no more of him afterwards, the approbations and subscriptions having onely the countenance of the more Northern parts; for Tythes may not yet have been generally setled, save in Kent, by Ethelbert; and Mer­cia and Northwards, as but now; which yet was after done ere long, and namely by that Celebris donatio Ethelwlphi, so much spoken of. This clapped the severe and absolute injunction upon all the Kingdom, (having power so to do, as the other had not) infolding every part that was under his power, (and all was) under the same constraint, so that now to Tythe was as generall as to reap, and by a Catholick command from sea to sea, and from the flood to this worlds end, Gods Ministers had now an appointed and setled liveli­hood wheresoever man had.

For the better understanding whereof, this of story would be taken in by the way: ThatCognoscen­dum igiturest, quòd eodem hic titulo utitur E­thelwulphus Rex, quo Egbertus pa­ter suus bellico­sissimmus acquie­vit, cum univer­sam Heptarchiā suae subjugasset ditioni: and how, Vid. Spelm. Concil. pag. 351, 352. Speed. Cbron. lib. 7. chap. 31. Polyd Virgil. li 5. pag 89, 90. Egbert, this King Ethelwlphs father had gathered together (no longer before) the dispersed pieces of petty-Royalties here, into one grea­ter Monarchy, and bruising and battering the Coronets of seven (at the remainder of seven) lesser Kings, had cast them all into one greater Crown, moulded for his own head, and left the power to this his son, under the Title of Monarch of the Nation, or King of England. A fit time to do any great work, and make or perfect such a change, as should be Catholick and uniform; not now, This and That, [Page 71] but one and the same throughout the Nation. Before him, it was King, (or Kings) of Britain till the Caesars came: Then, Aulus Plancius, Ostorius, or others, Lieutenants of Britain: after, the fell Saxons gave denomination to their severall shares of a conquered Heptarchy and we had South, East and West-Saxons, besides Kent, East-Angles, Mercia, and Northumberland: But this Egbert mastered All, brake Stow. Chron. in the life of this Egbricht, pag 99. & Speed. ubi s [...]pr. sect. 6. the image of Cadwaline last King but one of the Britains triumphantly placed over Ludgate, crushed the power, and obliterated the partiall names of his own Countrymen, and made all stoop to his sole Command, under the new name of The Kingdom of England, (whereof he was sole Monarch) which ever since through ages hath to this present re­mained.

These things prepared, as was said, for the uniformity of any work to have its extent and operation upon All, and be­ing remembred, makes way for that Donation, which heed, is Hire given under that name: Other before may have had the substance, but they had not the proper term, this both name and thing, under the title of, Celebris illa Donatio E­thelwlphi. Which what it was, take information first from him that had a great hand in preserving the Common-law from the spoiles at the Conquest, and lived neer those times, Ingulphus.

The most noble King of the West-Saxons (saith he) Ethel­walph, Inclytus Rex Westsaxonum Ethelwulphus, cum de Roma ut limina Apostolorum Petri & Pauli, ac sanctissimum ipsum Leonem multa devotione, una cum juniore filio suo Alfredo peregrè visita­verat, noviter revertisset, omnium praelatorum ac principium suorum, qui sub ipso variis pro­vinciis totius Angliae praeerant, gratuito con­sensu, tunc primo cum decimis omnium terra­rum, ac bonorum aliorum sive catallorum uni­versam dotaverat Ecclesiam Anglicanam per suum Regium Chirographum confectum inde in hunc modum. when he had returned from Rome visiting, with his son Alfred, the habitations of Peter and Paul, &c. by the willing assent of all his Prelates and chiefes, that under him were over all the Provinces of Eng­land, had then first indowed All the English-Church (for some peices had been before, but there wanted a Soveraing power, or the union of the parts [Page 72] to extend this good work over All) with the Tythes of All lands (mark the extent again) and o­ther goods or cattles,Regnante domino nostro in perpetuum, dum in nostris temporibus, per bellorum incendia, & direptiones opum nostrarum, nee non & vastan­tium crudelissimas hostium depraedationes, bar­bararum paganarumque nationum multiplices tribulationes ad affligendum nos pro peccatis no­stris usque ad internecionem, tempora cernimus incumbere periculosa. which he did by his Royal Patent, thus:

Our Lord Christ raigning, but we tossed up and down &c. wherefore I Ethelwlph King of the West-Saxons with the advice of my Bishops and Princes,Quamobrem ego Ethelvulphus Rex Westsaxo­num cum consilio Episcoporum ac principum meorum consilium salubre ac uniforme remedi­um affirmantes, consensimus, ut aliquam portio­nem terrarum haereditariam, antea possidentibus omnibus gradibus, sive famulis & famulabus Dei Deo servientibus, sive laicis miseris semper decimam mansionem, ubi minimum sit, tum de­cimam partem omnium bonorum in libertatem perpetuam donari sanctae Ecclesiae dijudicavi, ut sit tuta & munita ab omnibus secularibus servi­tutibus, imo regalibus tributis majoribus & mi­noribus, sive taxationibus quae nos dicimus Winterden, sitque libera omnium rerum, pro remissione animarum, & peccatorum nostrorum ad serviendum Deo soli, sine expeditione & pon­tis extructione, & arcis munitione, ut eo dili­gentius pro nobis ad Deum sine cessatione preces fundant, quo eorum servitutem in aliqua parte levigamus. Ingulph. re­solving on some wholsome reme­dy, have agreed that some porti­on of my lands formerly inheri­table by whosoever, should now as to the tenth of the whole be set aside (for th [...]s I conceive to be the sence, the words scarce af­foording any, but by compa­ring other accounts, this seems the thing meant) for the ser­vants of God, and a like tenth part of my goods for the Church; so free that it yeeld no secular service, nor tribute (more nor less) nor Winterdene (or Witterdene, a kind of im­position) but that it be devoted to Gods service alone, that the possessors may pray so much the more diligently for us, as they have fewer occasions to disturb them. This was done at Winchester in S. Peter's-Church, Anno Dom. 855. pre­sent and subscribing all the Arch-Bishops, and Bishops of England, and Beorred King of Mercland, Edmund King of the East-Angles, and a numberless number of Ab­bats, Abbesses, Dukes, Earls, and Chiefs of the Land, and other approving beleevers: And theRex verò Ethelvulphus pro firmitate am­pliore obtulit hanc chartulam scriptam super Altare sancti Pe­tri Apostoli: & Episcopi pro fide Dei illam acce­perunt, & per omnes Ecclesias posteà transmise­runt in suis paro­chiis publicandā. Ingulph. ubi sup. sect. 6. Charter was offred upon the Altar, and there received for more religious confir­mation. [Page 73] This I take to be the sence of what was there done:Ad anno. 855. Mat­thew Westminster, Gest. Reg. Ang. lib. 2. cap. 2. William Malmesbury, Ethelward, and others give several accounts, but tending this way, and so great consent is in substance, though variation in expression, that no one can doubt some such thing was done, men so much varying yet agreeing to report. No one undertakes to make good all of every thing he makes use of, and here was interspersion of Abbots and Abesses, offering at the altar, with Saints and Angels interessed and the Virgine Mary: but such commixtures do, we know, no more invalid the strength is adjoyning good and sound, then the like in Magna Charta, or the most of all ancient Parliaments, or some dispersed spots in the Common Law. He that shall once give his busie humor leave to work, and question things sufficiently done by some infirming circumstances, will soon leave little enough of approved firmness (by the same strict rule of estimation) any­where, no not of those foundations whereon are raised and stands the stability of the chief worldly things we here injoy. This is sure, the grant was made, and let the injoyed benefit speake the fruit to our time, the providing for a helpless Church, and it should seem so firm it needed not be again, nor was after; for 'tis observeable the stile henceforth chang­ed, and men do now no more Grant, but Confirm; nor had they need Part with so much as Assure, nor voluntarily Give, but yeeld to Pay.

Which we shall observe as we go along: In the mean while as to the doubtful words, various hath been the con­struction, and learned revisors have not all found the same thing in them.

Chronic. in the life of K. Ethel­wolph, pa. 99. Jo. Stow takes it to be a parcel of land:Animadver­sions on M. Seldens History of Tythes. cap 8. pag. 173. Doctor Tildesley contends for it by six reasons: Sir Henry Concil. Britan. tom. 1. pag 352. Spel­man (inclining thitherward) knows not where to finde the be­nefit save in the parsonage house and glebe (though it may be well enough thought how they came in afterward, and o­therwayes.) In his History of England, in the life of this King. R. Hollingshead slubbers it over with a right or liberty (from burdens) to tythes, (soHe ordained that Tythes and Lands due to holy Church, should be free from all Tributes and regall services. Speed hist. lib. 7. cap. 32. sect. 6. tythes Then in his [Page 74] acknowledgement were.)Martyrolog. lib. 3. pa. 136. ad an. 844 in the life of Ethelwlph. Mr. Foxe somewhat faintly; the tythe of the Kings lands and goods in West-Saxon-rick: (with freedom from Servage.) But aIer. Stephens in pag. 132. of Sir Henry Spelman of Tythes. late setter forth of a very learned and pious tract of this argument alledgeth it for a perpetual right of tythes: and above All,Mr Selden in his Hist. of Tythe, cap 8. pag. 206. he that had compared most accounts and was as well able to judge as any; and now after neer thirty yeers of painful and succesful study is yet living, and ready no doubt to make good his constancy, and justifie his opinion, then published, and not appearing yet revoked, makes it out clearly for a right and law of tythes: His words are these.

If we well consider the words of the chiefest of those anci­ents, that is, Ingulphus, we may conjecture that the purpose of the Charter was to make a general grant of tyths payable free­ly, and discharged from all kinde of exactions used in that time, according as the Monk of Malmesbury, and John Pike in his subplement of the History of England express it. Decimam (say they) omnium hidarum infra regnum suum a tributis et exacti­onibus Regis liberam Deo donavit: that is, granted the tythe of the profits of all lands, free from all exactions. For the granting of the tenth part of the Hides or Plowlands, denotes the tenth of all profits growing in them as well as Decima acra sicut aratrum peragrabit, which is used for the tything of the profits, in the Laws of King Edgar, Ethelred, &c. and doubtless Ingulphus no otherwise understood it then of perpe­tual right of tythes given to the Church, where he remem­bers it with tunc primo cum decimis, &c. So that the tythe of prediall or mixt profits was given, it seems, perpetually by the King with consent of his States both Secular and Ecclesi­astick, and the tyth of every mans personal possessions were at that time also expresly included in the guift, because (it seems) before that, (hitherto that learned man) the payment of all tythes had commonly been omitted. Not so neither; for what was then the operation of those weak, and yet intend­ed strong and powerful Canons before mentioned, made with so good advice, and strengthened with the twisted powers of both States in Mercia and Northumberland, besides what in Kent, a Rege, Baronibus & Populo? But for All the land, [Page 75] it seems none before had power of imposition; and for West-Saxony none had attempted; (for the King that was present at opening of the letters, we found not there at the con­clusion of the businesse Pag. 70. before:) So that Tunc primùm for this and for All together, the decree might go forth here successefully, and the liker it did, for that (as before) we read of no more Donation, but Confirmation, no need to Set­tle after, but order, as was said, to Pay.

So that considering the power was then vested in the Mo­narch-granter, and also the consent of Tributary, and, as it were, pupil-Kings, with Nobles, Peers, and all their people: Consider likewise the interpretation of dark words by those whose inspection was like to pierce deepest into the meaning of what was delivered (or is perplexed) with obscure expres­sion, And after interpretation fairly setting of such a pur­pose, we need not doubt to conclude: That so long agoe as those remote times, about 800 years since, above 200 before the Conquest, even then when the Common Law was but in her swadling-clothes, whereof little hitherto, (if she were then born, as I beleeve she was,) Even then, and as soon and fast as we may believe the power of Christian Religion to have had its work in the bosome of beleevers to make them contrive a continuall and setled support for their soul-saving new-come Gospel, Tythes had a publick vote, which crea­ted a legall Right; And, though I will not say All was done accordingly, and the objection of after Arbitrary consecra­tions possible in some sense, may take place in their way not­withstanding; yet as farre as Law may create a right, Then were Tythes no longer a part of Benevolence and Bounty, but of distributive or retributive Justice, every one living within the compasse of the Church being bound to pay back this support for the Ministery thereof, in fulfilling those generall Canons of the New-Testament, that call for main­tenance, and would not have the labourer uncertain of his reward, but the Oxes mouth unmuzzled (to take thus much) and the Catechist to partake with the Catechumene in all his goods.

[Page 76] For we are not to look upon Regall and Legall commands; as empty Cracks, fit onely to fill the world with noise and clamour, and exercise the chat of the busie multitude, or learned mens discourses, but Canons well mounted, which being discreetly levelled also, are able to make their way through whole squadrons of opposing Rebels to Law and Justice, of that irresistible power, that though private men would, they cannot contradict, evade, or gainsay; As being those words of publick vote and highest authority, that if they say, Yes, will have no Nay, The most serious disputes and results of Reason that are extant amongst men, and that have this soveraign property always annexed to them, That they of all other look not to be Disputed but Obeyed. Lex est sententia, qua bona tum praecipiuntur, tum mala pro­hibentur, (sayes Jo. Lexie Iurisprud. pa. 526. in vocab, Lex. Calvin) Jus est authoritas seu facultas agendi secundum legem. Justitia est virtus perducens ista ad exercitationem. Proinde quoties audis has voces, Lex, Jus, Justitia, statim cogita, monente Oldenb. te di­vinum aliquid atque excelsum audire, hoc est, veram & à Deo ipso dictatam honestatis formulam. Almost the voice of God, and not of man, as if they were.

Neither is one thing more to be omitted, who was pre­sent and assistant at this great work, Him I take the world to have since owned and remembred by the reverencing name ofVid Spelm. Con­cil. [...]om Eod. pa. 349. St Swithune: formerly the Kings Christian Tutour, now his Chaplain, Bishop of Winchester, andFor the King was committed first to the Care of Helmestan Bishop of Winchester, and by him consigned over to Swithune: Heimestan dying, he was made a Deacon, and elect, if not Consecrate Bishop of Winchester, and thence resumed to the Crown. Speed Hist. lib. 7. cap. 32. sect. 1. —subdiaconatus ordine initiatus. Polyd Virg. Hist. lib 5. pa 91. Vid▪ Stow. Chron▪ ad an. 829. & Hen. Hun­tingdon. lib. 5. pag. 348. successor of the King himself in that See, blessed by God to keep the Kings heart, and the state of the Re-publick firm to Christ in that tottering age, when it was hard to keep all from reclining and relapsing to flat Idolatry. For they had lately worshipped stocks and stones, and given the imme­diate issues of their soules in their thanks, praise, and All devotions to the works of [Page 77] their own hands,The names of sundry Idols here worshipped be­fore the Gospel enlightened: And as the Pagan Romans made theirs praeside over the daves of the week, whence Dies Solis, Dies Luna, Mercurit, Martis, &c. So here they called the dayes from them, if not more, and we yet re­tain the memoriall thereof in Sunday, Moonday, Tuisco [...]day, (or Tuesday) Wodensday, Thorsday, Freaday, & Seaterday. More appearance of truly evil, then in some other things in jea­lousie branded for Idolatrous: See Verstegan. Antiq. pag. 10, 11. & pa 68, 69, &c. Tuisco, Woden, Thor, Frea, Seater, Herthus,) Suevorum, & Borealium Germanorum Dea, perinde & corum Anglorum qui cum Saxonibus Britan­niam nostram applicantes, nomen nostratibus reliquerunt. Cultum & immanitatem Deae refert Tacitus, in Mor. Germ. Rendigni deinde, & Aviones, & Angli, & Varint,—in commune Hertum id est, Terram matrem colunt, camque inter­venire rebus hominum, invehi populis arbitrantur: Stoneheng in Wilishire thought to have been a Temple to this Goddesse, in plain English, The Earth: Vid. Spelm. Gloss. pa 350 in Herthus. Herthus, Flint, Verstegan. pa 79, 80 Er­mensewl, The Goddesse of Hunters and Falconers, wor­shipped at Rihall in the edge of Rutlandshire, near Stanford: vid. Ca [...]den. Britan. in Rutlandshire. Another place of note for like worship whereto was God [...]an­ham (in Bede's time Godmundingham) near Beverley in Yorkshire, by the priest thereof Coyefi profaued and deli­vered over to Christian worship: id. pag 702 S. Pauls in London was dedicate to Diana; (some Houses adjoyning are called Dianaes Chambers yet.) The Church of West­minster to Apollo. id. in Middlesex. God blesse u [...] I shal we ever live to fear the return of these Banished and for­gotten Idols to their native homes? Or the removall of what fast kept them out (being banished,) give cause of that Fear! Tibba, Or Oster: a Goddesse giving denomination to the Month of April, called by the Saxons, Oster monat: we yet retain the name of Easter thence, hapning usually in that month. Eoster, and such other sometimes wor­shipped for Gods and God­desses here, whose names are now either almost happily for­gotten, or if remembred, not very easie to be understood. But it seems the Holy Christi­an Swithune joyned in with his formerly pupill, now Lord and King to keep him close, (& in him vertually and poten­tially All,) to the heavenly tea­ching of the Bible; and that the doctrine thereof might conti­nue, they added this pillar of worldly maintenance (the ha­ving a hand wherein might procure Swithune so reverend an estimation in Christians memories ever since,) (accord­ing to the patern in the mount, their guide, Levi of the Old Testament,) To sustain and provide for the Preachers and Ministers thereof: And God so blessed, that as that gift has remained sacred and invio­lable hitherto, so by it the ministration and Ministers of sacred Christian Mysteries have had a subsistence ever since, and endowed preachers been as so many Candlesticks then set up, which resting on this pillar, have held forth that light of hea­ven which yet we enjoy to this present day. Future super­stitions may have made unnecessary additions, and the ho­nour justly given to the memory of this good man, for a work so gloriously deserving, in the name and reputation of [Page 78] a Christian Saint, have contracted after rust and blemish by the zealous ignorance of times and men; who not content save to overdoe, nor esteeming reverence any thing without worship and adoration, thought the Saint not enough, un­lesse he were advanced higher to the name and reputation of a Divus, or petty-God, and so partaking now in nearnesse of kinde as well as name with his Soveraign, must not wait any longer about the footsteps of the Throne, but be lifted up to sit higher on some lower seats of honour with his maker; which cast a blemish on the very Purity of heaven, and as one said, made the Christian world begin to be asha­med of nothing more then of her Saints, which were indeed the honour and glory of the world.

But howsoever the work was gracious and glorious, of wonderfull influence to the piety of all following times, such as may speak it self accessory to much of the practised publick Worship that hath been exercised ever since to Christ his honour, in our land, and hardly to be parallelled by any act of equal dimensions, save perhaps the contrary work of dark­nesse, (if mens covetousnesse should be so far hearkened to,) in with-drawing this support in order and preparation to the destruction of Religion it self, and bringing Apostasie to that we had before Tythes were paid, Tuisco, Woden, Thor, Frea, &c. or if these be forgot, taking up that is nearer hand and known, the sensuall dreams of Mahomet, (though suchWhich they may have from the Mosaical law, Selden. Hist. of Tythes c. 3 sect ult. Ioan. Baptista Alfaqui who had been a Mahome­tan priest, sayes, 'tis one of the [...]reat sins whereof the two inquisitour An­gels examine souls after death, Whether they have paid Tythes duly? [Paget. Haeresiogr. in the Postscript. The dreadfull manner is set forth by M. P [...]r­chas. lib 3. cap. 12. p. 304. Edit. 1614 worshippers pay their Tythes duly,) or indeed no one can foresee probably what. And if these be not the dreames of some troubled minde, but the sober and well­advised thoughts of one jealous for the honour of His God, not the melancholick muses of some distempered fancy, but the calm and well-composed serious consultations of one ten­derly carefull, and tremblingly fearfull about the honour of his beleeved Saviour and Redeemer, prudently casting what may be, yet providently fore-casting it may not be, and yet but reasonably doubting too what is like to be; grounded onely on rationall conjectures, and accompanied with manly feares, lest Christ his name should be wiped off from the earth, His honour disparaged, His worship undermined, [Page 79] His faith destroyed, and Himself forgotten where he hath been worshipped for a God; It would then be thought on again and again by all those who pretending to worship Christ can think of undoing his Ministers, and in (or with) love of the Master, give themselves leave to doubt whether they may strip of their Own his Servants that doe his Publick work, leaving Religion as naked as in the day she was born here, to be covered by meer Charity of the Parish, or provided for by some slack and slender weekly allowance: And (then which cannot come a worse mischief) intrusting the Religion of the most High God, and its stability, to the tottering contribu­tions of fickle Men, who if they be of one minde to day, may be of another to morrow; what now they love, then loathing; and always esteeming their wealth dearly, cannot but be continually loth to part with what they love: (which if it should be,Josh. 7. 9. O Jesu, (As Joshuah fometime threw up complaint to heaven upon a pang of zeal, in like danger,) What shall be then done to thy Great Name!) But ere this be, more stones must be stirred, 'tis like, then we are aware of, or are yet thought on for motion: intwisted estates doe not use to decay single; nor that sink alone of it self, that settles on the same floor or bottom with others: The strength of property it self must grow weak, ere these dues can be shaken, and the owner of the nine parts be left little enough by the Same reason, (unlesse by arbitrary dispo­sition, because 'tis fit he should have it,) before This Tenth setled with them, and by equal strength of right can be taken away. Think of ransacking the Tenth rafter out of the roof, or the Tenth stone out of the foundation, and then compare and Judg. But think withall, that rafter, that stone was there placed in Swithunes dayes.

CHAP. XI.

WE have done with Donation; A thing can be given but once, and this hath been here all over; now next, as annexed thereto or a part thereof should follow, Tradi­tion, without which theItem non valet Donatio nisi sub­sequatur Trad­tio, quia non transfertur per homagium res data, nec per chartam vel in­strumentorum confectionem, quamvis in pub­lico fuerint reci­tata. Bracton. de aquir. rerum dom cap. 18 sect. 1. Lawyers say Donation is invalid, forasmuch as this in actVidendum est primò quid sit Traditio: Et est Traditio de re corporali propria vel aliena, de perso­na in personam, de manu propria vel aliena, (sicut procuratoris, dum tamen de voluntate Domini,) in alterius manum gratuita translatio. Et n [...]hil aliud est Traditio in uno sensu, nisi in possessionem in­ductio. id. ibid Sect. 2. vid Flet. lib. 3. cap 15. Sect. 4. parts with the thing, and till it be, even a guift remaines with the Giver: but the expectati­on hereof may well be superseded here, forasmuch as the right of tythes is a Right, and so not capable of delivery: For it is a Right, and notDe re corporali ideò dicitur, qùod res in corporalis non patitur traditionem, sicut ipsum jus, quod rei sive corporl inhaeret: et quia non possunt res incorporales possideri, sed quasi, ideo traditionem non pati­untur sed quasi, nec adquiruntur nec retinentur nisi per patie [...]tiam et usum. Bract. ubi supra fol. 39. Iura siquidem, cum sint in corporalia, videri non poterunt, nec tangi, et ideò traditionem non pati­untur, sicut res corporales. id. cap 23. Sect. 1. fol. 52 Item acquiruntur nobis temporalia (corporalia I beleeve, it should be,) per traditionem: res enim corporales patiuntur traditionem: secus verò de incorporalibus, ut sunt jura, advocationes ecclesiarum, &c F [...]et. lib. 3. cap. 2. Sect. fin. a body, which can nor give, nor take; and the rules of the law must not think to alter the nature of things, or make that required, which to be cannot.

Tradition is here therefore set aside, in other cases neces­sary, and this Guift being perfect without it, our next must be of Ratihabition or Confirmation, under which head march all the following allegations to our times, toConfirmare est enim id quod ptius infirmum fuit simul firma­re. id. lib. Eod. cap. 14 sect 5. strengthen the frame that is now built, and inforce from time to time to part with and give out what was here set a­side and appointed to be given; What those acts in law are [Page 81] shall not praeviously take up much inquiry fromVid. F. Ratam rem haberi, & de ratihabi [...]ione: lib. 46 tit, 8. Justi­nian orVid Cook Inst. 1. on Littleton. sect. 515. fol. 295. Westminster, I content my self with theirGeneraliter effectus ratiha­bitionis est, ut voluntatem nostram declaremus, & negotium, quod alioqui ad nos nihil pertineret, no­strum faciamus, Cahl. Lex [...]c. Iurispr [...]d. pa. 789. general nature, to settle what has beenRatihabitio est consensus, qui negotium perfectum insequitur: Id. ib. Rati enim habitio ad confirmationem prioris postulati pertinet: F. de bonorum possesseo­nibus: l. Quotiens. placed; Rem ratam ha [...]beri, that that which is, they do, as theVidendum est igitur quid sit Confirmatio: & est confirmatio prioris juris & dominii adepti firma­tio, cum prima firmitate donationis; nihil enim novi attribuit, sed jus ve [...]us consolidat & confirmat: Bracton. lib. 2. cap. 25. sict. 2. fol. 58. word is, Confirme.

Men, no doubt, were loth to part with their own, to weaken their worldly estates, though it were to stablish the Religion of the most high God, to make them baggs which as our SaviourLuke 12. 33. says wax not old, toMatth. 6. 20. Cap. 19. 21. lay up treasure in Heaven (1 Tim. 6. 19. [...],) for another world, and to make Luke 10 6. Sermone etiam admonemur di­vino, terrenis coelestia, & ca­ducis his nostris aeterna illa pro­mereri: Aethelst. in prafat. ad leg. speaking of Tythes. friends of this Mammon of unrighteous­ness, that when need is, they may receive into everlasting ha­bitations: This made the lawes frequent, the repetitions ma­ny, the reinforcement earnest, the transgression poenal, and each continued in and through every age; that so, if might be, Ananias might be met with at every turn, and his wife Sap­phira kept back that neither should venture again to pluck back what onely true piety and the love and fear of God had prompted them at first to give forth. And now behold the laws are not to pay, but be punished if men paid not.

CHAP. XII.

THe first that occurs, (in time and so in our order) is that of K. Alfred and is in the preface to his laws, (re­member we are now in the dawning of the common-law, and this allowance shall grow up with it,) which, before, he out of modesty acknowledged to borrow from the tables of his Ancestors; and speakes in brief, thus:Pra [...]fat. in leges Alfred. c 38. Lamb. Arch p. 19. Spelman. Concil. tom. 1. pa 360. Thy tything porti­on, or thy tythes give thou to God. If any did not, it was af­ter agreed betweenVid. Leg. Eccl. ab Alured & G [...]thurno ib. pag. 377. cap. 9. him and Guthrun the Dane, that the stranger should pay lahslite, that is, as 'tis commonly inter­preted, twelve Ores, and the English his forfeiture, and with out this, no peace: which League and Law was after confirmed byHaec ea sunt senatusconsultaac instituta, qu [...]e primò Alfredus & Guthrunus re­ges, deinde Edo­vardus & Gu­thrunus reges, illis ipsis tempo­ribus tulere. cum pacis foedus Daci & Angli ferie, runt, ac sese mu­tuo amplexi sunt, (a part of the soder that combined them together was a law of Tythes, which they agreed both should pay-) quaeque postea à sapienti [...]us reci­tata saepius, atque ad communem regni utilitatem aucta, at (que) amplificata sunt: vid. foedus Edovardi & Guthurni. apud Lamb. Arch. p. 41. et Spelm. Concil. p. 390. & 39 [...]. K. Edward (Alfred's son) and the same Guthrun, and oftentimes after repeated and established to the common profit of the Kingdom

K. Aethelstane is after very earnest about the year 930. by all that is sacred Leg. Eccles. Aethelsta [...]i apud eund. p. 402. c. 1. Lambard. Archaion. p. 45. & Fox Acts and Monum, lib 3. p. 149. conjuring al under his Jurisdiction to pay all: tam vivorum animalium, quàm annuorum terrae proven­tuum decimas, both of Cattle and fruit: His Aldermen and Reves he commands to do the same, and seriously advises to consider what Jacob vowed, my tythes and peace-offering will I offer unto thee, and what is elsewhere with severity enough; If we will not give the tenth, the nine other parts may be taken away, and nothing left but the Tenth. Re­member he was not a Church-man but a King, and so spake no doubt as seeing expediency enough of what he spake thus, and for his people.

[Page 83] Edmond his successor followed him, andLeg. Edmundi &c. Lamb Arch. pa. 57. cap. 2. Spe [...] ­man. Conc. adan. 944. pag. 420. cap. 2. in a frequent Synod held at London about the yeer 944. as well of Lay as Ecclesiastical persons, (a Micelne Synod it was, a Parlia­ment, no doubt) chargeth every Christen man to pay his tythes duly, and upon his Christendom. I omitted an Ecclesiastical Constitution made byDecimo capi­tulo mandamus, & fideliter obse­cramus, de de­cimis dandis, sicut in lege scri­ptum est: De­cimam partem ex omnibus fru­gibus, &c. ib ad an. 943. p. 418. cap. 10. Odo Arch-bishop of Canterbury about these times, because it may be judged not binding; not doubting yet the common law, as then, to consist of such rules, (as they were after, of the Consistory) as well as the secular: For if this were not, there should have been no rule brought along with the Ecclesiastical Judge, for him to Judge by. 'Tis known how till the Conquerors days, when the Courts were parted, This Supervisor sate in the County Court, (as over a Provincial Presbytery,) to Judge with the Kings Reve, or the Reve of the Shire, or Shire-Reve (since Sheriffe,) the one to see Gods right done, as the other to see the Worlds; and what could be more ex­pedient then that they should bring their several rules along with them, the Church-man his Canons to rule there in fit­ting things, as the other his secular lawes? So that till the jurisdictions were parted, I doubt not to think without haesi­tation, this and such Canons, The Canon in general, was a part of the Common-County law, and so used, and after digested into a form by it self for the Consistory; whereto adding the way of tryal, sc. according to the Civil law, by citation, proctor, libel, &c. and such after superinducements, made the Court, as it was late found and left: But this by the way.

CHAP. XIII.

GO on to K. Edgar: and he was not far of, (within the same Century [...]ll:) which pious KingLamb. Arch p 62. ca. 3. Spelm. Concil. ad. an. 967. pa. 444. strengthened all that was before by adding to law and punishment a course how the one should be inflicted to further the Execution of the other. And, He that will not pay his Tythe of Cattle before Whitsuntide, his tythe fruit before the Equinoctial (or Church-seet, (or Scot, or portion) before S. Martins day) let him pay his forfeiture, saith he, as in the Doom-book. What? Let the Reve, Bishop and Church-Priest meet; and compel him, if he be unwilling to pay his tenth to the Church that he ought leaving to him but Nosti, quia Dei sunt cuncta quae percipis, & de suo non ac­commodas rerum omnium condi­tori? non eget Dominus tuus, non praemium po­stulat sed hono­rem, non de tuo aliquid exigit quo [...] refundas. Primitias rer [...]m & decimas dig­natur petere, & negas avare. the ninth: as for the other eight, let the Lord have the one half, the Bishop the other; and this without respect of person, whether he be the Kings man, or Thanes. Which very course and penalty is after approved and stamped for currant by theLeg. Canut. Lambard. Arch. pa. 101. sect. 8. Spelman. Concil. ad ann. 1032. pa 544. cap. 8. & pag. 563 cap. 15. Danish K. Knout in assembly of his wise men at Winchester, about the year 1032. with some inconsiderable alterations, And in substance continued to ourLeg. Hen. 1. apud Lambard. pag. 182. cap. 11. Hen. 1. time, since the Con­quest, as appears by his laws lately published.Quid faceres, si novem partibus sibi sumptis tibi decimam reliquisset? Quod certè jam factum est, cùm messis tua pluviarum subtracta benedictione jejuna defecit, & vindemiam tuam aut grando percussit, aut pruina decoxit. Quid avidè supputas? Novem tibi partes retractae sunt, quia decimam dare noluisti. Constat qu [...]dem quod ipse non dederis, sed tamen Deus exigit. Haec enim est Domini justissima consuetudo, ut si tu illi decimam non dederis, tu ad decimam revoceris.—Dabis impio militi, quid non vis dare sacerdoti: Aug. se [...]m. 219. de temp. tom. 10. pa. 370.

Something of the Church intercurres more about this time, which, from the nature of the thing, it may be expedient but [Page 85] to name; as an Ecclesiastical Constitution made under the same Edgar, That Docemus eti­am, ut Sacerdotes populū instruant, de his quae jure Deo sunt red­denda: decimae scilicet, & res aliae, &c. Canones dati sub Edgaro: apud Lambard. pa. 71. Can. 54. Spel [...]. ad an 967. pag. 454. the people should be taught to pay to God that which of Right they ought, (which mark was Then a Right, whether Humane or Divine, I inquire not; If this, it was the stronger; if but that, 'tis it I contend for: but a Right:) as Tythes and other things: And another calculated for the Northerne Latitude, (for the collection is stiled,Si decimas qui Thanus est regis detinuerit, 10. p [...]nd to semi­marcas, possessor praediorum 6, & Cyrliscus seu Pa­ganus 12. [...]ras. id. pag 501. Leges Presbyterorum Northumbrensium) and bound up with K. Edgars lawes, where is penalty for every of the Kings Thanes (or lords) that detaynes, ten half markes; for every land-owner six; for every Ceorle or Husband-man twelve Ores: And another written by Aelfrike Aelfric. Can. ib. [...]a. 578 ca. 24. & Lamb. pa. 132. to Wulfine of the same general nature, thought not unworthy to be preserved among the undoubted monuments of that Age: All which I yet so slightly pass over, as that my judgment remaines the same both one way and other as before; and for what was stampt with the authority of the Church, that it had no doubt the Countenance of the Sate, to be then a ruling part of the Common All-ruling Law; which consisted both of Canon and Statute, (as they were after Called,) and each was a rule for what they did concern in the same Court, where both Jurisdictions were then Combined, and both their Lawes executed.

CHAP. XIV.

THe next Century gives us theConcilium Aenhamen [...]e ge­nerale, seu Pan­anglicum hor­tatu Aelfeagi Dorobernensis & Wulstani Ebora­censis A chiprae­sulum, ab Aethelredo Rege edictum [...] acce [...]sitisq Episcopis, & universis Anglorum optimatibus, in die S. Pentecostes celebratum. Circa on 1009 Spelm. p 510. Parliament of Aenham, made up of both States, as well Church as Peers under King Ethelred: in the contraction whereof is commanded, that,Iura Deo debita unusquis (que) annuatim rectè pendito, &c. Id. p 517. K 10. Gods dues be paid yeerly, Tythe of young at Whit­suntide, of fruits at Allhallondtide: but in the larger latine, [Page 86] and a coppy of the same date of writing, Thus: Let Id. pag. 527. cap. 10. the tythe of fruits (saith the Kingdom,) and Calves, and Lamb, and other Ecclesiastical duties be paid yeerly to the Lord at fitting seasons: Sulh, vel po­tius Sullow (ver­bo paulùm im­mutato) plurimis in locis etiam nunc aratrum sig­nificat: aelmess not [...]oris est sig­nificationis quam ut interprete in­dige [...]t ullo. Ego me legisse memi­ni in vetustissimo quodam legum Ethelredi Regis libello imposi­tum tunc tempo­ris in singula ara­tra Denarium unum. Ea fortas­se pensio est quam illi Sulh­aelmess appella­bant. Glossar. ad Lambard. Arch. pa. 217. in vocab. Arationis eleemo­syna. Eleemosynae aratrales, or Sulh aelmes (as I am informed, a penny a yeers pention upon every plough,) 15. days after Ester: Calf and lamb at Whitsuntide: tythe corn about Allhallondtide; and all these to God, and by order of Par­liament. Dubitaverit fortè quispiā, &c. Spelm. pa. 529. It may breed some doubt of the universality of this power, because it is called a Councel or Synod, which use to be the titles of Ecclesiastical meetings: But this is satis­fied in part by a learned Kinght, that it 1.Beside what before: Quodam tempore contigit ut Regis Aethelredi edicto concrepante, Archipraesulumque Aelfeagi & Wul [...]stani ho: tatu instigante, universi Anglorum optimates Die sancto Pentecostes ad locum ab indigenis Eanham nominatum, acciti sunt conven [...]re: Id. pa. 525. And in the close; Haec itaque legalia statuta vel decreta in nostro con­ventu Synodal [...] à Rege N. magnoperè edicta cuncti tunc temporis optimates se observaturos fide [...]iter sponde bant: Ib pag. 529. consisted of both States. 2. was convened by the Kings power. 3. trea­ted of things not of the Church. and 4. met atSc at Whitsuntide, as K Edmunds was at Easter: In quibus celebritatibus, (sicuti & in illa Nati­vitatis Domini nostri) convocare Reges, ex antiqua consuetudine, soliti erant proceres suos utriusque Ordinis ad fastum Regium adornandum, & Consilia regni ineunda, quod latius al [...]b [...] declaravimus: Ib. K Knouts great Councell at Winchester, was after at Midwinters tide, or in Natalitiis Domini nostri: id. p 539. & p. 560. K. Bertulphs before at Easter; (and a very Parliament:) id. p. 344. Ex more enim & obsequii vinculo antiqu [...]ssimo tenebantur proceres in tribus maximis festivitatibus; Christi sc. Nata­litiis, sancti Paschatis, & Pentecostes, Regi annuatim adesse, cùm ad Cur [...]am & personam ipsius exor­nandum, tùm at consulendum de negotiis regni, statuendumque prout fuerat necessarium. Prodire igitur in diebus illis Rex solebat coronâ redimitus, & pro Fastu Regio se in omnibus exh [...]bere: donec morem labefactav it Henricus 2. &c. Id. p. 347. Parlia­ment time: which as times then were, was thrice a year.

For in those dayes at the three great feasts both the King expected his Nobles to come unto him for greater solemnity of the time, and being met they used to consult, de arduis rei-publicae negotiis, which was Parliament work: (which also continued long after, as appears through the course of Mat­thew Paris his History, who wrot to Henry the third.) So that I doubt not to affirm both that this was a Parliament, and that one such meeting in three yeers is no such news in England; for of old (beside the law, and observation there­of in practise about Edward the third's time, for one) before that they had usually three Parliaments every year.

[Page 87] In the same Kings time was also another general meeting at Habam; Haec instituerunt Ethelredus et sapientes ejus a­pud Habam, is the title, and part of the text (from theHistor. Iornal. fol. 65. apud Seld. de decim: p. 225. since Published by Spelman: Concil. circa Ann. 1012. p 531. Abbot of Jorneaux,) thus:

Omnis Thai­nus decimet to­tum quod habet. Ib. c. 1. Let every Thane (or lord) Tithe all that he hath: And Et praecipi­mus, ut omnis homo super d le­ctionem Dei & omnium sancto­rum det Cyrisce­atum, & rectam decimam suam, sicut in diebus antecessorum nostrorum quando melius fecit; hoc est, sicut aratrum peragrabit decimam acram: Et omnis con [...]uetudo reddatur super amicitiam Dei ad matrem Ecclesiam cui adjacet, & nemo auferat Deo quod ad Deum pertinet, & praedecessores nostri concesserunt: pag. 531 ca 4. we command that every man upon his love to God and all Saints give his Church Scot and true tythe, as in the dayes of our ancestors, (it was no new usage, then, but inherited from the days before) that is, his tenth Acre, as the plough shall goe: and let every custome be made good, super amiciti­am Dei, for Gods love to the Mother Church to whom it be­longeth, and let no one take from God (mark the weighty in­gagements still) that which belongs to God and our Predecessors (again) granted.

CHAP. XV.

BUt none did more in this kinde then the Conquering Dane. First, heVid Episto­lam Canuti Re­gis ad Anglorum proceres anno Regni sui 15. Domini nostri 1031. in eod. pag. 535. sends from Rome, mindeful of Ju­stice here, to all his Officers and Ministers, threatening if all dues were not paid, particularly Tythes, the disobedient should smart from the sharpest edge of his severest laws. Secondly, when he came, (Nec dicto fuit deterius factum, as saith the Historian) he caused all theOmnes enim leges ab antiquis regibus & m [...]xi­mè ab anteces­sore suo Aethel­redo latas, sub interminatione regiae mulctae perpetuis tempo [...]ibus observari praecipit. Mal [...]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,Quotannis quis (que) Deo jura justasque debitiones ritè persolv [...]to: Arationis quidem eleemosynam ad decimum quintam á Paschate diem pendito: foetuum decimas ad Pentecosten solvito; rerrae denique fruct [...]m decimas reddito ad fest [...] 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 [...]: p. 545. by more assurance and past all conjecture he re­vived [Page 88] & awakened that notable past law of K.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 'twere 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 [Page 89] 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 [Page 90] 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 reddat decimum: qui unam tantùm vel duas habuerit, de singulis pullis singu­los [Page 91] denarios: similiter qui vaccas plures habnerit, decimum vitulum: qui unam vel duas, de vitulis singulis obolos singulos. Et qui caseum fecerit, det Deo decimum: Si vero non fecerit, lac decimo die. Similiter agnum decimum, vellus deci­mum, caseum decimum, butyrum decimum, porcellum deci­mum.

De Apibus.

De apibus vero similiter decima commodi.CAP. 9. Quin et de bosco, de prato, et aquis, et molendinis, porcis, vivariis, pis­cariis, virgultis, & hortis, et negotiationibus, et omnibus rebus quas dederit Dominus, decima pars ei reddenda est qui novem partes simul cum decima largitur. Qui eam detinu­erit per Justiciam Episcopi et Regis (si necesse fuerit) ad red­ditionem arguatur: (perhaps righter, adigatur.) Haec enim praedicavit Beatus Augustinus, et concessa sunt a Rege, Ba­ronibus et populo. Sed postea instinctu Diaboli multi eam deti­nuerunt, e [...] Sacerdotes locupletes negligentes non cur abant ini­re laborem ad perquirendas eas, eò quod sufficienter habebant suae vitae necessaria, &c. Leg. Edward. Regis. apud Lam­bard. Archaion. pa. 139 & Spelman. Concil. pag. 620.

Behold here a plaine law: as full as if it had been made in Consistory, as clear as evident and open words could ex­press, as authoritative as might proceed from the King and his people, and as much to be reverenced as King S. Edwards Law: consenting much to what went before, and for what followed after, we know (and shall be made appear) has had as many after, successive, supreme confirmations as any publick act of this State ever had: Except the great Charter: nay, not except the great Charter; into whose confirmation this was also by implication involved, and with it had life, strength, and fruit, even to the Petition of Right, as shall be hereafter shown.

It usually passes that this devout and wonder-working King was the father of the Common-Law, (which if, we see what shined from its morning beames,) and that he gave it first life and being of no praexistent materials, as I beleeve he did, as it was common: for he, (a little to step aside,) disliking the several ways of tryal that had been to his time, [Page 92] That one should be tryed byCantiani suas aliquando habuerunt leges, sed coeuntibus iis & Saxonibus om­nibus sub West-Saxonum ditio­ne, horum lege vivitur. Angli le­ge usi sunt (quam vocant) Mercia donec [...]rruentes Dani East Ang­liae & Northum­briae provinciis, suas inducunt consuetudines, à prioribus non in complurimis discrepantes. Hinc majoribus nostris triplex legum distinctio ƿestseaxna-laga, Myrcna-lega, & [...]ene-laga id est, lex Occiduorum Saxonum, Lex Merciorum, & Lex Danorum. Spelman. Glossar. pag. 445. in vocab. Lex Anglorum. Saxon-Lage, another by Dane-Lage, a third after the Mercian: one punished by Severall punishments or forfeitures for the same crime, among severall here then living Nations. The former was the English mans, the other the Danes: (12 Ores, I finde it guessed.) Vid. Glossar: ad Lam­bard. Archa [...]on. p. ult. Selden of Tithes, cap. 8 sect. 10 Spelman. Gloss. pag. 423. & Foedus Edovar­di & Guth. a pud Lamb. Arch. c. 3. & 6 pa 42. And compare with them Spelm. Gloss. in vocab. Engle­cheria, pa. 231. gildwit, another by lawslite; neighbours, for the same offences, several ways, Amassed all both precept and penalty together under one general rule, and from the composition, indifferency, & use called the result by a fitting name (relating to whence it had come) the [...]now Post Aluredam suas promunt leges Edovardus senior, Aethelstanus, Edmundus, Edgarus, E­thelredus Saxones, & Canutus Danus, generales plerunque singulas quoad prohibition's Canonem, sed in irregandis mulctis Danos respicientes juxta coniuetudinem Danicam (quam Laslit vocant;) Anglos juxta Anglicam; & Mercios interdum juxta Mercianam. Noluit verò Rex Edovardus Con­fessor in uno regno triplicem hanc justitiae lancem, sed recensens denuò Anglorum, Danorum, & Mer­ciorum leges. suam dedit parem omnibus, & Communem, quae a Re, Lex Communis; ab Authore, Lex Sancti Edovardi nuncupata est. Ranulph. Ceftrensis: Ex tribus his legibus (inquit) Sanctus Edwardus tertius unam legem Communem edidit, quae Leges Edwardi usque hodiè vocantur. Spel­man Gloss pag. 436 in vocab. Lex Anglorum. Though Gervase of Tilbury refer the work to a little after, as done by the Conquerour. Porrò liber de quo quaeris sigilli Regii individuus est comes; (that is, Domus-Dei Booke:) Hujus autem institutionis causam ab Henrico quondam Wintoniensi Episcopo (son to the Conquerours daughter) sic accepi. Cum insignis Angliae subactor Rex Wilhelmus, ejusdem Pontificis sanguine ptopinquus ulteriores Insulae fines suo subjugasset imperio, & rebellium mentes terribilium perdomuisset exemplis, Ne libera de caetero datetur erroris facultas, decrevit subjectum fibi populum juri scripto legibusque subjice re. Propositis igitur legibus Anglicanis secundum triparti­tam earum distinctionem, hoc est, Me [...]chen-lage, Dene-lage, West Sexen-lage, quasdam repro­bavit, quasdam autem reprobans, transmarinas Neustriae leges, quae ad regni pacem tuendam effi­cacissimae videbantur, adjecit. Glossat. ad Lambard. Arch. pa. 219. in vocab. Ius Danorum Agreement in substance for the Originall, Derivation, and composition of these Laws, though the circumstances a little vary Common-Law: not but that the parts had been before, but he collected and imbody­ed them thus, and from the composition and derivation gave this name. Just as the famous Justinian before, by help of Tribonian, Constantine, Theophilus, and others, winnowed the greatSed com omnia percontabamur, à praefato viro excelso (Triboniano) suggestum est, duo penè millia librorum esse conscripta & [...]plusquam trecentics decem millia versuum à Veteribus effusa, quae necesse esset omnia & legere, & perscrutari, & ex h [...]s, si qu [...]d optimum fuisset, e [...]igere. De Confirmat. Digest. in Princ. heaps of the former Romane Civil-Law and of the near two thousand volumnes that had been 1400.Erat enim mirabile Romanam Sanctionem ab urbe condita usque ad nostri Imperii tem­pora quae penè in mille & quadringentos annos concuriunt—in unam reducere consonan­tiam, ut nihil neque contrarium, neque idem, neque simile in ea inveniatur, & ne geminae legespro rebus singuli; positae usquam appareant. Ibid. [Page 93] years a laying together, sifted out some little for his use, that greed with the Genius of his time and affairs, calling the Collection, his New Digests or Pandects, a general Receipt, or All-receiving composition; And as was intended, (and in part perfomed) here at the purging of the Canon-Law in the time of Henry the eighth, (upon the striking of the Pope, the Head,) where it seemed good to the then wisdom of the state to limit by the prudent fishermen in the Gospel, who collected and saved the good into vessels, onely they cast the bad away: Or as lastly law-makers have almost a law to them­selves, to cull out no more then needs they must for rejecti­on, the weeds and refuse; reserving all the good slips, and picking their posie as near as they can of new flowers growing on old stocks formerly planted, and hitherto preserved; so was done here. Our English Justinian (Edward) made his new Digests (the Common-Law) out of those as it were Praetorian Edicts, Senatus consulta, Decreta Sapientum, &c. of British, English, Saxon, and Danish pieces which had been before, and was easier to order then to new make, and usurping to himself the power of a father, having digested it into his new forme, called the product his new Common-Law. Whence or from how far came those pieces he thus made use of, would I beleeve prove a very hard question and not to be satisfied fully, unless we could recover sundry things utterly lost; Caput inter nubila condit, as he said of that river, their original is far among the clouds, and not to be revealed to us in any degree but from the things of Mulmutius, Dun­wallo, Qu. Martia and such other as being thought of no­where else in the world but here, are yet with us wrapped up under very hard names. Yet for an Essay, and because it hath not been attempted purposely by any, for varietyes sake, Take as followeth,

First, for granted, that, as before, the Confessour was but—Anglicarum legum legitimus restitutor, asGemeticens. lib. 6. cap 9. an old book stiles him, the restorer, not the contriver of them; and a little more, that he had them from his Grandfather [Page 94] Exillo die (from the fourth of the Conquerours Reign) multa au­thoritate vene­ratae, & per uni­versum regnum corroboratae & observatae sunt prae caeteris pa­triae legibus leges Edwardi Regis Sancti, quae prius inventae & con­stitutae fuerunt tempore Regis Edgari; Verum post mortem ipsi­us dimissae sunt annis circiter 68. — Sed postquam Rex Edwardus venit ad Regnum, Con­silio Baronum Angliae legem 68 annis sopitam excitavit, excita­tam reparavit, reparatam deco­ravit, decoratam confirmavit; Con­firmata verò vo­cata est Lex Re­gis Edwardi, non quòd ipse primus adinvenisset eam, sed cum praetermissa fuisset, & oblivioni penitus dedita à diebus avi sui Regis Ed­gari, qui 17 annos regnavit, & qui primus ejus inventor dicitur, usque ad sua tempora, videlicet ut praedictum est 68 annos post dies ipsius Edgari, ipse Edward us, quia justa erat, & honesta, à pro­funda abysso extraxit eam, & renovavit, & ut suam observandam contradidit. Leg. Edovardi R. tit. Lex Novicorum, apud Lambard. Archaion, pa. 129. & vid. Chron. Vetust. Ecclesiae Licbfelden. 16. pa 158. & apud Seldon. ad Eadmer Histor. pa. 171. Edgar; from whose time they having been laid asleep (for 68. yeers) and buried as it were under the spoiles of war, long silenced by the Danish tumults, He, by the advise of his Eng­lish Barons, revived, awakened, quickned, and gave new life and vigour to their dull and fainting power, and from the of­fice of a friend, Guardian or protector got himself the reputa­tion of an Author, or first Father, setting them towards that state they have in some measure continued in ever since. But we begin not then: HeThe Evidence of things speaks thus much to all that are acquainted with the affairs of those times. this Edgar, had them questi­onless from his most noble Antecessor the pious, valiant, and wise Alfred, who what he did was rememberedPag. 56. before, from Ina, Offa, Ethelbert, &c. to whose tendries he added what seemed fit of the Legislatives of West-Saxony: beyond which, and the farthest our inquiries go, and there they settle, must be the King Mulmutius, and the Queen Martia. These coyned what had after many following inscripti­ons, and stamping for currant Law, what had been hitherto but prevailing reason, or arbitrary opinion, made that first draught whereof we have now any remainder extant, and that I beleeve with many alterations and Re-Reformations hath continued topical and national to us ever since to this very day. Seemeth this a strange thing? I invented it not: Good authority hath led or misled me; take account there­from of each distinctly

First, for Mulmutius, Geffry of Et cum totam insulam omnino subjugasset, fecit sibi diadema ex auro, insulámque in pristi­num statum reduxit. Hic leges quae Mulmutinae dicebantur inter Britones statuit, quae us (que) ad hoc tempus inter Anglos celebrantur. Statuit si quidem inter coetera, quae multo tempore post, B Gildas scripsit, ut Templa Deorum & Civitates talem dignitatem haberent, ut quicunque fugitivus sive Reus ad ea confugeret, cum venia coram inimico suo abiret. Statuit etiam ut viae quae ad praedicta templa & civitates ducebant, Nec non & aratra Colonorum eadem lege confirmarentur. In diebus itaque ejus latronum mucrones cessabant, raptorum saevitiae obturabantur, nec erat usquam qui violentiam alicui ingereret—In urbe Trinovanto prope templum Concordiae sepultus, quod ipse ad con­firm a tionem legum construxerat. Galfrid. Monum. Hist. Reg. Brit. lib. 2. cap. 17. Monmouth dis­covers of him, That he was one of the first, that having sub­dued [Page 95] the whole nation, rendred himself glorious by the lustre of a golden Crown, and made certain Laws, from him called the Mulmutian, which are preserved, (and the Authour lived since the Conquest, in some favour with Robert Duke of Gloucester, King Henrie's son) among the English to this day. Gildas the Wise translated them into Latine along time after they were written; a part was; That Temples and cityes should have priviledge of Sanctuary, and so the high­ways leading to them, and the plough, &c. And having reap­ed much peace, the fruit of his diligence, he was buried in Lon­don neer the Temple of Love, quod ipse ad confirmationem le­gum construxerat. The late Mulmutius Dunwallo Rex—aur [...]a Coro­na primus usus est, & salutares leges quae Mul­mutiae dicebantur instituit. Has in Latinum sa­piens Gil [...]as, & in Anglicanum sermonem postea Rex Alphredus convertit, adeò ut diu easdem etiam inter Anglos diligenter obser­vatas fu [...]sse constet. Quarum adhuc fe è capita memorantur haec, Vt Deorum templa, &c. Richar­dus Vitus Basinstochii, Histor. lib. 3 pa 186. Dr. White of Basing stoke, his credit is ingaged for much the same, adding, that what Guildas translated into Latine, Alfred did into English to be a rule here, (of whose borrowing from times past we spake before:) and Hic igitur (Dunwallo) est qui primus, &c. Et qui leges patriae quae Mulmutinae dicebe [...] ­tur, instituit inter Britones, quae usque ad hottempus celebrantar inter Angl [...]s, (so then from the Bri­taines to the English they came.) Vrbes, Templa fecit, ut qui ad alla fugerer, etiam coram inimico abiret, & viae tutae essent simili modo, quae ad Templa rectè ibant, & ad a [...]atra col norum: Poste [...] mortuus est in urbe Trinovantum sepultus juxta templum Concordi [...]e. Britan. Histor. lib. 2 in fine. Ponticus Virunnicus (living too on this side the Conquest,) ingages they were observed till his days.

Thus for the man: Now for the Noble and Masculine Queen Martia, the Loyal wife first, and after learned wi­dow of King Gunteline, or Guiteline, (Remember both He and she lived before either the Conquest, Christianity (here) or Christs incarnation; Mulmutius under the second Monar­chy of the Persians about 430. before Christ: and this Qu. Martia soon after:) she was (saith the sameErat ei (Gui­thelino) Nobilis mulier Marcia nomine, omnibus artibus erudita. Haec inter multa & inaudita, quae proprio in [...]nio peperenat, invenit legem quam Britones Martianam appellaverunt Hanc etiam Rex Aluredus inter caeteras transtu­lit, & Saxonica lingua Pa March [...]tie-lage vocavit. lib. 3. cap. 13. Geffry) both noble and wel learned in the Arts: Among other remark­able things she did, she invented that Law the Britains used under the name of Marcian, (and from her no doubt might the Province of Mercia take name, a large tract of Land [Page 96] reaching from Lincolnshiere to the heart of England as now, and formerly known by this name, as all know that are ac­quainted at that distance:) which King Alfred among o­ther translated, and called Pa Marchitie lage, as the print of Geffry hath, but the correctingIn the pub­like Library of Oxford, in 4 H. 27 Art. Manuscript more fit­ly, Merchenelage, or Martian Law: andHistor. Bri­tan. l. 3. Pont. Virunni­us, Flor. Histor. at. 4 cap. 1 Matth. Westminster, and—Leges optimas à se nominatas, & diutissimè posteà à Britannis observatas instituit, quas I­dem Rex Alphredus sermone donavit Anglico, ut ante delegibus Mulmu [...]iis demonstravimas Rich. Vit. lib. 3. pag. 199. Dr. White come in al­so here with their subsidiary assents and confirmations.

William of Malmsbury, Chronia. ad an. ante nat. Chr. 442. & ad an. [...]56 John Stow, andHistor. Angl. lib 1. pa. 21, 22. Polyd. Virgil, have the same, or much after the same, And so not very like all would take up errour upon trust one after and from another; But the true pedigree of the Common-Law may, from beyond thisOccurrit in Historiis mentio legis Molmutia­nae & legis Mer­ciae, alias Marti­anae. Illam à Molmut [...]o Rege Britonum quem floruisse asserunt anno nondum elucentis gratiae, 430. Hanc à Re­gina Martiana (Lelando Martia Proba,) Guente­lini Regis vidua, dum infantis filii regnum tueretur, ferunt conditam, anno ante Nat. Chr. 350. Has duas leges (in­quit Cestrien­sis Monachus, lib. 1 cap. 50) Gildas Historicus transtulit de Britannico in Latinum: & Rex Aluredus postmodum de Latino in Saxonicum, quae Marchene laga dicebantur. Ipse quoque Aluredus legem Anglicè conscriptam superadjecit, quae West-Saxene-laga vocabatur Tandem Danis in hac terra dominantibus tertia lex emanavit quae Dane-laga dicebatur. Ex his tribus legibus Sanctus Edwardus tertius Communem edi­dit, quae leges Edwardi usque hodiè vocantur. Spelman. Glossar. pa. 441. in Vocab. Lex Mer­ciorum. Edward, derive it self (in some parts at least) thrice as far with shew and probability. So like is that I say else where, There may be of Laws a Clima­tical fitness; They thrive best under such an aspect, and will hardly be pruned out: We have Native some things, and these Connatural, with other, whence they continue the same upon endeavour of removal, and still sprout out a­gain to a kind of immortality. This by the way: Now to return.

Whether these things be of certainty enough or not, for the derivation of parts thus far, sure enough what is generally received for the whole, that the Common-Law, as Common, fathers it self on this King and S. Edward, as before; He made of severals this one intire Body, wherever he had his pieces; And so in this if we have it, we have not onely Law, but to (create sure right in Temporals) Secular Law, Com­mon Law, this our setled and long continued all-ruling, all-disposing [Page 97] Soveraign Common Law, and this in the infancy, life, vigour, and most powerful strength, and chief ruling, Raigning power thereof; and all this for what many take to be no other then some tyrannical imposition of some latter statute; yes so indeed, we have the morning beames of this Soveraign light to quicken to best and strongest most assured Right, This Right of Tythes; Let more or as much be shew­ed for almost any thing in this Kingdom or Common­wealth.

The highest other titles pretend to, or shelter them­selves under, is but under the Conquerour; the most goe not so far, and they are thought to ayme at a very great di­stance that can but look thitherward; Insomuch that it be­came Vid. Seld. of Tythes. Review of Chaep 8. a doubt long since whether any Plea founded of right beyond, were to be hearkned to? and though the truth seems, it was, and many enjoyed on this side, what they had on the other, and had not forfeited by stubborn op­position; yet an excellent Scholar (the Aristotle of our Na­tion,) and aChancell. Bacon. Of the use of the Law, pa. 23. And see also the Preface to Hen. 1. Laws, late set forth by Sir Roger Twis­den, pa 155. professed Lawyer, seems to give his opinion to the contrary, That save Church-lands, and those in Kent, all else had their rights drowned in that deluge, and save what was saved by mercy, the rest then perished: But now behold here not onely a present and ancient title, but founded in the Common Law, and so long since as makes it to have overlived clearly that bloody battel; Planted there in words at length, by the composer himself of that Law, and so fully too as few things else are, and so by consequent, from the very begin­ning has a fairer, farther, deeper, and more spreading radi­cation in the inside and body thereof, (as 'twere clasping in almost to another hemisphaere,) then most other lands, te­nements, hereditaments, &c. can pretend to.Flet 4. 5. 14 A tempo­re coronationis Regis H. patris Regis E. was long since a good Plea, From the Coronation of Henry the third. And inBracton fol. 373. Henry the third's time, from his granfather: But here is that overlookes those clearly, double and treble, From the Conquerour and before. What can, if this cannot, settle a thing by Law? to have its title thus written by the Founder Himself, in cleare and evident Characters, even in the infan­cy [Page 98] 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 'twere 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! [...], asF. 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 [Page 99] 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 [Page 100] 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:

[Page 101] TheLeges boni Regis Edovardi, quas Gulielmus Ba­stardus postea confirmavit. Laws of good K. Edward which William the Bastard afterward confirmed.

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 Com [...]tatibus viri duodecim, jureju­rando eoram Rege primùm confirmaverunt, ut quoad pos­sent recto tramite incedentes, nec ad dextram nec ad sini­stram d [...]vertentes, legum suarum & consuetudinum sancita patefacerent, nihil praerermi [...]ttentes, nihil addentes, nihil praevaricando mutantes. A Legibus igitur sanctae matris Ec­clesiae sumentes exordium, quoniam per eam Rex & Regnum solidum habent subsistendi fundamentum, leges, libertates, & paces ipsiu [...] concionatisunt, dicentes. The first Chap. After the Conquest of England, the said William in the 4 year of his reign, by the advice of his Barons, caused through all the shires of England, the Nobles and other theOmnis Clericus, &c. Lambard. Arch. pa 138. Spel­man. Concil. pa. 619. Wise-men and Lawyers of the Land to be summoned, that of them He might know what their Laws & Customs were:(4) See M. Seldens Review of Cha. 8 Of Tythes, pa. 982. These being met, twelve of every shire; and having first taken their Oaths to deal sincerely, not turning to the right hand or to the left, adding nothing, detracting nothing, changing nothing, began with the Church: Quoniam per eam Rex & Regnum solidum, sub­sistendi habent fundamentum; Because this was the Basis and firm settle whereon all the Rest was seated, and her Laws and Liberties were (they say) as followeth;

2. Let every Clerke and Scholar, and their possessi­ons wheresoever, have the peace of God and the Church: And so on to the eighth Chapter; for every tenth sheaf, tenth fole, tenth fleece, &c. as before, which is theAnd the same limb is also of the same body, but under another head, as if the whole composition were Glanvils▪ in Hoveden. An­nal part. post pa. 600. particular Law we seek for here. That which might occasion this strict Sur­vey, may have been, when he saw what was, to superin­duce or conjoyn his Norway orders;Proferebat enim quod antecesso es ejus, & omnium Baronum ferè Normannorum, Nor­wegienses extitissent, & quod de Norweia o­lim venissent. Et hac authorita [...]e leges eorum cum profundiores & honestiores omnibus aliis essent, prae caete [...]is regni sui legibus asserebat se debere sequi, & observare, Lambard. [...]bi s [...]pra [...]. 149. & Vid. Spelman. Glossar pa 4 [...]6. & Chron. Lichfeld. apud Lambard. pa 158. As well because they were his, and he was willing to govern by his Own, as because they were better and honester, as he pretended; But chiefly for that their admissionSelden▪ ib. pa. 484. would have removed one rub which lay in his way, and hindred the evennes of his path to the Crown by succession, which was his unfitnesse thereto by reason of his illegitimation; which, [Page 102] as Laws were here under the Church, scarce left him in a succeeding condition (to his Cousen Edward, for he en­tred not meerly by Conquest,) whereas the Northern were in this regard more pliable and favourable. But whenQuo audito mox universi compatriotae Regni qui leges edixerant, tristes effecti, una­nimiter deprecati sunt, quatenus permitteret sibi leges proprias, & consuetudines antiquas habere in quibus vixerant patres eorum, & ipsi in eis na­ti & nutriti sunt, quia durum valde foret sibi sus­cipere leges ignotas, & judicare de eis quas ne­sciebant. Rege vero ad flectendum ingrato exi­stente, tandem eum prosequuti sunt deprecantes, quatenus per animam Regis Edwardi, qui sibi post diem suum concesserat coronam & regnum, & cujus erant leges, &c. Lambard, Vbi Supra. the people heard hereof, their rage was up presently, their swords by their sides, and spears in their hands, beseeching they might not be ruled by they knew not what; and when he denyed, reinforced their bold re­quests, conjuring him by S. Edwards soul, who left him the Kingdom, (and this was a part of his title, glanced at before,) and whose the so much desired Laws were, that he would not force a yoak on them they were not able to bear, and like to gall their necks so much the more, because they knew not how neither to wear it. This he had in partVid. Th [...]. Spot. prout citatur in Glossar. ad Lambard. Arch. pa. 222. in vocab. Terra ex Scripto. & Speed. Hist [...]r. lib 9. cap. 1. sect. 8. in Wil. 1. promised before to the two greatest of the Hierarchy of Canterbury before they would lay down with their boughs their swords, but soon forgat his words as Conquerours use to do; But howsoever now no remedy, He must yeeld, and did once for all: Thomas of Cant. and Maurice another Bishop, writing them out with their own hands, and so they were taken up, Decima Deo debita, with the rest, and they shall be now observed for ever. Such they may be, it is harder to conquer Laws then Men, and rooted usages having had time to spread and like, may contract such a kinde of Connaturality with the place by consent, that though a generation of men may be cut off, These will not. I will not say, There is a Clima­tical fitness, and in such a place some love to grow; As of other things, There do influences produce and cherish, what being There prospers, being Away languishes, being remo­ved sighs out fainting desires to return, like the Vine that by the Elme thrives best, (yea, mutually they cherish each other,) or the plants of Trinacria, which when that Island was cut off from Italy, (as ours thought from France) reclined lo­vingly back to the place from whence they had been taken. [Page 103] NoNullum ibi reptile videri soleat, nul­lus vivere serpens valeat. Nam saepe illò de Britannia allati serpentes, mox ut proximante terris navigio; odore aëris illius adtacti fuerint, intereunt. Quin potius omnia penè quae de eadem insula sunt, contra venenum valent. Denique vidimus, qu busdam à serpente percussis, rasa fo­lia codicum, qui de Hybernia fuerunt, & ipsam rasuram aquae immissam, ac potui datam, tali­bus protinus totam vim veneni grassantis, totum inflati corporis absumpsisse ac sedasse tumorem. Beda. Eccles. Histor. lib. 1 cap. 1. poisoned thing, they say, will live in Ireland: Creatures, their very nature isThe Indian Ounees, What be they but ex­tract from the Cats of Europe? Spanish dogs, in New Spain, in the second Litter do they not be­come Wolves? Good Melons transplanted into a base and barren ground, t [...]n quickly to ordinary e [...]cumbers. So there in Ca [...]mannia) the Iackals may be of the dogs of Europe, by diversity of air, and soil varying in spe [...]ie from that they were formerly Herb Trav. pa. 124 in Carmannia. troubled, and they like to degenerate, when they change soil and climate: Some Northern Beasts are reported to alter (in time) re­moving to the South, and when from us to any other Countrey, against rea­son, yet more: As things, may not then Laws naturally love some Coun­treys, desire to be there, prosper in that Region best, and thitherward therefore recline being separated? be­wraying a kinde of sympathy with the place, by that the place seems to want them, and they desire and make to it, resting and having a strange kinde of complacency and de­light (mutually) in that approximation! Many things we see we can give no reason of: but we Do see and know Na­tive Laws settle (as in love) towards some places, Ours al­so so passionately called for Here, as to a despite of opposition, a scorn of denial; May there not then be a kinde of sympa­thy, and Connaturality of Them with Us, we understand not?

Well: this formal Concession was upon this importu­nity howsoever made, but how kept? M. Foxe Martyrol. in the Life of Will. 1. pa. 171. says the truculent soldier feared not to perjure himself: (whence we learn, he had sworn:) Upon which endeavour of revocation, the people were soon up againSpeeds Hist. lib. 9 cap. 2 sect 21 Selden ad Ead­mer. nos. pa. 194. under Edgar Etheling, Englands Dearling as they called h [...]m, Fretherick The stout Abbot of S. Albanes, and Aldred BP of York being their Chief Councellours, Edwin and Morcar their Chief Generals. These would not bear their forced change of Laws; though Governours they stuck not so much at, neither was there any remedy but gratifie their discontents with a re-Concession. The King enters parley with them at Berkehamsted in Hart­ford shire, where loth to hazard by the chance of an houre, what he had got not without the expence of bloud, treasure, [Page 104] and so long continued industry; He condescends to hearken, as Rehoboam should, to his wise Councellour (the Arch-Bishop of Canterbury) to yeeld to grant what 'twas dange­rous to deny, and to be pliable for once to those must be his subjects for ever: Non tam libenter itaque quam sapienter, Tho. Spot. Vbi Su. as was said of him in another case, not so much wil­lingly as wisely he made Concession, and being also of car­riage fair, and of speech courteous, he so wan upon the old Abbot Fretherick, and all that were with him, that they were again content to put their neck into his yoake, so it might be the gentle one they liked of K. Edwards making. So said, so done: an agreement was thus made which ratifi­ed by Oath and vowed upon the reliques of S. Albane, All were satisfied, and every one went to his own home. Though this were not the onely time or course of affairs that brought about the establishment of these loved decretals: Elsewhere also they were put intoHoc quoque praecipimus ut omnes habeant & teneant leges Ed­vardi Regis in omnibas rebus, adau­ctis hiis quas Constituimus ad utili­tatem Anglorum. Lambard. Arch. pa. 172. l. 63. Selden. ad Aedmet. not. pag. 192. K. Williams Code, which willed them to be strictly kept by all, with onely some additions in favour of the English, as in the Red Book of the Exchequer, lately published. Next him was William 2. of whom we have little account, but very like his trucu­lent nature would put on for a return of his fierce Norway usages. More then like he did; for at the coming in of his Brother Henry, He was fainEadmer. Histor. Non. lib. 3. pag. 55. to stroak the people with a pro­mise to release their heavy burdens, and that all things introduced contrary to K. Edwards Laws, should be removed, with a Re-Re­concession of them in their full force and ver­tue. Promisit emendationem le­gum, quibus oppressa fuerat Anglia tempore patris sui & fratris nuper defuncti;—Adhaec Clero respon­dente et magnatibus cunctis: quod si animo volente ipsis vellet conce­dere & Charta sua communire illas libertates & Consuetudines antiquas, quae floruerunt in Regno tempore san­cti Regis Edwardi, in ipsum consen­tirent & in Regem unanimiter conse­crarent. Henrico autem hoc libenter annuente, & se id facturum cum ju­ramento affirmante, consecratus est in Regem apud Westmonasterium, &c. Matth. Paris. ad an. 1100. p 51. A Monk of S. Albanes who was li­kest to know, tells us: He sooths the headlesse people, desiring he might be their Governour, and all hard Laws should be amended: They specifie, that if they might be S. Edwards Laws, and he would allow them by his Char­ter (after made out into the great Charter no doubt) they would stick to him against his elder Brother [Page 105] Robert, now in the holy Wars at a distance. With all his heart; for he must, or no Crown: So he swore them pre­sently, and was not after worse then his word: for he soon directed his Letter to the Sheriffe of every Shire, acknow­ledging his Election, and confessing oppressions past, and promising relaxation to come, grants the Church her liber­ties, &c. and that all ill customes should be amended, &c. And coming to particulars, that all past murders should be pardoned, and future tried by K. Edwards Law, He after reaches in the whole:Lagam Regis Edwardi vobis reddo, cum illis emendationibus quibus pater me­us [...]am emenda­vit Consilio Ba­ronum Angliae. Id. ib. The Law of K. Edward I restore you, saith he, with all amendments mado by my Father with the consent of his Barons: which is the more like to be true, because besides this private Authour, there is agreement of the publike Tables in two Copies (with some small variati­on,) inLately publi­shed and annexed to Lamb. Arch. p. 175. the Books of the Exchequer,Ib. Pa 176. the title of whose second Chapter is, De Confirmatione Legum Edwardi Regis, as if that were the onely businesse. Afterwards Robert came home, and they parlying of the great businessMatth. Par. ad an. [...] 106. pa. 59. at Northampton, fearing the peoples revolt, he knew no bet­ter means to retain them, then by pleasing them with sugar­ed words, telling them, His Brother was a Military man, He addicted to Peace: His Brother a new-comer, Himself known to them: The stranger was like to prove truculent, as arriving to them with his hands bloudy from Syria, but He had granted them King Edwards Law, had sworn it them, had kept it them; It was his joy to remember the day when that firm and pleasing bond of friendship was contra­cted between them first, which also he wish't everlasting: And if they list to desire any thing more in the same busi­nesse, they need but ask and have; and thus were they in­chanted to be his, almost against Justice: Parva Ieves ani­mos capiunt; Good words go far with the multitude.

At King Stephens coming to the Crown, we finde not much, butId. in vita St [...] ­phan. Reg. in prin. pa. 71. he swore the Liberties of the Church, and gave Charter of them, &c. Speed Hist. lib 9. ca 5 sect. 3. He promised to reform the over-hard Laws of his Predecessors, and to mollifie ex­treams under his Seal and Charter: which words conside­red, [Page 106] seem much of the import with theAnd Will. Malmsbury, speaking of K [...]outs severity, and picking from K. Ethelreds Laws, and eternizing them, whereof before: In quarum Custodia (saith he) etiam nunc tempore sub no­mine Regis Edwardi juratur, non quod ille statue rit sed quod observaverit. De Gest. Reg. Angl. lib. 2 cap 11. pa 75. He lived in this K▪ Stephens [...]worf [...]. former. But before his reign was out,Florent. Wigorn. in Glossar. D. H. Spelman pa. 440. the Londoners were up, and made earnest request to Maud the Empresse, then, it seems, reco­vered to some power, and gotten thither, that these Laws of K. Edward might be restored expresly: quia optimae erant, & non patris sui Henrici, quia graves erant: whereunto she giving an unadvised answer, there rose presently such a storm of mens passions and arms both together, that she was glad, with disgrace enough to leave the Town, without taking so much as her Trunks a­long with her. In Hen. 2. (her sons) time, R. de Glanvil­la was made Chief Justice. His Book intituled, Tractatus de Legibus & Consuetudinibus Angliae tempore Regis Hen. 2. compositus, has, for reasons I shall alledge hereafter more seasonably, little of Tythes, Nothing of King Edwards laws, as that Book is come to us: ButVideturque Hovedenus leges Edovardi Con­fessoris à Guliel­mo emendatas, & ab Henrico secun. do denuò restitu­tas, restituenti attribuere. Id. pa. ead. col. 2. to the same Henry as Authour, and the fame Glanvil as under him Composer, are ascribed this very Body whereof I speak, and under the same Head given by Ro. Hoveden the Historian; Though he▪ was yet, I take it, but theVid. Hoveden. Annal. part. poster. ad an. 26 Hen. 2. pa. 600. Compiler of them.

But now in K. Johns time arose those terrible tempests, were like to shake and overwhelm all, the noise whereof was heard all over Christendom; Neither was there any ap­peasing the storm, or settling toward peace and quietness, but by so far as these Laws had approbation. Matth. Paris Ad. an. 1213. pa. 229, 230. tels us, that at the end of some broyles, when the King was absolved at Winchester, he swore upon the holy Gospels that he would defend the Church and Church-men, &c. and re­vive all good Laws, especially King Edwards, abrogating all that were unjust: which I take it, was done not long after at S. Albanes, when peace was restored to all, and on behalf of the King commanded, that the Laws ofThis was, being strictly taken, Henry the second: but a judecious Conjecturar rather [...]astens it on Hen. 1. as if it were, Proavi sui. (Spelm. in Gloss. pa. 436.) which is the more likely, because this was word for word that K. Iohn sware, and is here found▪ remembred and recited: as may be seen in Matth. Paris. his Grandfather Henry (of him we had but now) should be [Page 107] observed, and all hard Lawes repealed throughout Eng­land: which when after upon displeasure it was endeavou­red to be revoked, the Archbishop follows the King to No­tingham, and so deals that that unjust purpose was revoked; and after, having found a Copy of Hen. 1. Charter (of which before) He takes aside many of the Peers, and thus bespeaks them: Ye may remember what was done at Winchester; How I absolved the King, and he swore to revive and preserve K. Edwards Laws: I have lighted upon a Copy of them; here it is, Hear it read, and let us make our selves happy once for all by a combination that it Shall be observed. Hereupon he produces the Charter, word for word, the same as from Hen. 1. even to the particulars of a double mention and con­firmation of K. Edwards Laws; and having read it and sworn to it and the Combination together, by the nextId. pa. 233. news we hear of K. John, he is like to turn Mahumetan to shift himself of those troubles his inconstancy to these good Laws had wrapped him in. Nor ended the businesse so:An 1214. id. pa. 243. The year following was a great meeting at Saint Edmunds­bury, to force the King again to make good the liberties and They produced the Charter. Con­tinebat autem Charta quasdam libertates, & Leges Regis Ead­wardi Sancti, Ec­clesiae Anglicanae par [...]ter & Magna­tibus concessas, exceptis quibus­dam libertatibus, quasidem Rex de suo adjecit ib. those Laws: soon after Ch [...]istmas the year following, they come boldly enough upon him and demand the obser­vation of them, and performance of his promise; when he craved time to deliberate; and meant but to delay, they smelt it, and assembled a great Hoast at Stanford, and co­ming after to Brackley, where they had a parley, offered a Schedule of their demands, containing the old Laws and Customes of the Land, and those areCapitula quoque legum & libertatum quae ibi Magnates confirmari quae­rebant, partim in Charta Regis Henrici superius scripta sunt, par­timque ex legi­bus Regis Ead­wardi antiquis excerpta. Id pa. 244. after said to be partly out of K. Henries Charter, (of which before) and partly out of K. Edwards Laws still. So that thus far plain and even way till among the Charters, and in Treaties and Consultations, Acts, Orders, Grants, and Demands, still these were a considerable part, the onely soder to com­bine the disagreeing parts, of the brittle body Politique; and when the rage and fury of the people was up, nothing was so effectuall as this, like cool water to sprinkle upon their raging fiery passions; Stroak them with a Concession of these, and they were calmed presently. I confess we are [Page 108] yet short of Hen. 3. whose was the ratification and renew­ed allowance onely, not first grant of that our present laws take chief notice of, by the name of The Great Char­ter; But withall it is to be observed, that This was chief­ly an extract of Those, and that which K. John confirmed by Oath, and his Barons contended for, and would not be de­nyed to have made good in Deed, was but Hen. 1s. Of which one that had searched and was like to know, tells us: Verè Sir Roger Twisden, in his Preface to the Laws of Will. 1. pag. 157. Cook has the same in his margi­nall notes on the Charter in his In­stit 2 cha. 1. itaque haec (Henrici 1.) dici potest basis & fundamentum ipsius Magnae Chartae, quae ex parte maxima leges antiquas & Regni Consuetudines continebat, quamque Hen. 3. non confirmavit antequam per milites 12, vel legales homines u­niuscujusque Comitatus per Sacramentum inquiri fecisset quae fuerant Libertates in Anglia tempore Henrici avi sui. So the Great was but taken out of the other Charters, re­newing (with some variation) what they had granted be­fore, and there is urged authority for that derivation, which their comparison and consent will well enough make good. Thus having brought these Laws among the Charters, tho­rough them, and to the last and Great; They now with ease and pliableness enough come along and have a place in the Petition of Right, where That was owned suffici­ently, and as many Ratifications as there were intercedent, even Parliamentary, so many-must be acknowledged to fall in by the way (at least by implication) Hither: Of that great Law of Tythes I mean, which having so fair and eminent a place in K. Edwards, must also have as full and fre­quent a ratification all along in that bulk of laws so ratified, which justly occasioned this Narrative; And by it we see a a part of that strength the Law of Tythes hath on this side the Conquest, even in the Common Law still, by that it was part of it at first, and a very remarkable part of that is taken to have been the foundation and first rise of the beginning of the Common Law, and since hath, as now, been seen, al­lowed, and approved with it all along, with impetuous rage and violence called for by the people of the land, and they would never be quiet but under this Regiment, or without these beloved orders whereof Tythes were a considerable [Page 109] and eminent part. If they had been pressed upon them by those were interessed by profit, or the tyranny of command from above had settled, or kept them upon their weak and declining shoulders, as unwilling as unable to bear, Reason would there should be at least some more colour of strugling to free themselves from the force, and their hands have leave to loose their necks from the yoak of unjust imposition; But sith they desired them, bespake them, contended for them, and would not be denyed, but fought that they might pluck and keep that Burden upon themselves; what can be more equall then that▪ as their own act binde themselves, so their inheritours and successours also, and that whether to gain or to losse, yea, to losse as well as to gain, they stand to them, and every good man with his own whether Act or Right, sit down and Rest satisfied and very well contented?

Most things indeed finde some opposition; few are so happy to escape altogether free, and some Persons may perhaps think good to doubt of All here: As, whether these references dispersed and represented as before, point to King Edwards Laws, or some other? which latter If, All hitherto would seem beside the Cushion. But in answer would be considered, 1. That no such thing appears as mis-appli­cation, neither are other with much probability suborned in their place. 2. The title, the old title, and that from as far as Roger Hovedens time, speaks for them, and plain, Hae sunt leges boni Regis Edovardi, &c. 3. Divers passages alledged, glanced at, and extant beside can hardly be understood but to contribute the strength of their Testimony this way. 4. To this also the likeliest guides have led us: M. Lambard, in his Edition; M.Hist. of Tythes cha 8: pa 224. Selden, in his Allegations;Animadvers­on that Chap. pa. 164. D. Tildesley, Concil. Tom. 1. p. 620. and of Tythes, chap. 27. pa. 131. Sir Henry Spelman, View of the E [...]cles. Laws, Par. 3 chap 2. sect. 1. pa. 141. Sir Tho. Ridley, and of lateIn his late E [...]dition of M. Lam­bards Archa [...]on. Anno 1644. D. Wheloc of Cambridge. Could all have been mistaken? Were they all in the wrong? Shall we take in a point of doubt the whole world of Learned men to be no­thing else but a flock of sheep, wandring from the truth them­selves, and leading others unto errour that follow them? Take what we finde: They are generally reputed His, clear­ly styled His, have continued to be reputed and styled so long [Page 110] enough, and nought appears clear to the contrary; and Why Then may we not Therefore embrace them for His, and Ge­nuine, crediting the voice of the world? Which how, and why taken into the Coronation Oath, we may by these things, as they were, in part also conjecture. But of this hereafter, or as shall be occasion: In the mean time, of them, and of this Branch of Tythes in them, Thus much.

CHAP. XVIII.

STEP we next into the Church, but by de­grees, and taking in some such things by the way, as could not have found so fitting place elsewhere: As namely,

1. Remembred be it, that Tythes were payed under the Conquerour: They were so; For as wellChap. 10. pa. 279 &c. M. Selden hath it in divers particulars from the most authentique account of this Lands Survay re­presented in Domus-Dei Book, (others agreeing, and enlar­ging his proof:) AsAd An. 1074 pa. 8. & vid. Selden. ad Ead­mer. Histor. pa. 168. And for after, see the complaints, (supposing pay­ment) in Iohn of Chartres. De nu­gis Curial. lib. 7. cap. 21. Matth. Paris consents, in thus re­lating a dismal Tragedy acted under William the first, about forcing Priests from their wives; They, saith hee, (the Priests) grew scandalous, the people rose up against th [...]m, Lay-men fell aboard with the Sacraments, Any would admi­nister Baptism, and then went Tythes to wrack: Decimas eti­am Presbyteris Debitas igne cremant: They acknowledged their Dueness, but of malice they set them on fire, loth the scandalous married Presbyter should have any good by them, and yet afraid it seems to meddle with them for common profane use; And they that did so, in the next words we find treading the Sacrament under their feet.

2. Own, as about this time owned that Law of K. Ed­gar, avowed after by K. Knoght or Knout, andL. Hen 1. c [...]. 1. among the ad­ditionals to M. Lambard: where­of before, pa 84. & pa. 8 [...]. now renewed by the Norman Hen. 1. for rule, penalty, and order for execution: And this here assured from the best means of [Page 111] information, a double entry thereof in the Exchequer Book, among the fairest testimonies extant of the Land.

3. Adde, not mentioned before, that which resembles a Parliament in the same King (Hen. 1.) days, assembled at Westminster about the beginning of his Raign; where, for sta­ting divers things then raised in doubt, among others was orderedEadmer. Hist. Novorum, lib. 3. pa. 68. Thus: Ʋt decimae non nisi Ecclesiis dentur: Let Tythes be paid to none but Churches; Supposing their Dueness, but limiting to whom they should be paid: They might Not but to the Church, Therefore There they Might; else the supposition had been a vanity, and the publick voice said as good as nothing. Darkness seems to be over the mea­ning, (or what should be the import,) but light may be bor­rowed from the state of things then about; and I conceive of it and them thus. Then was not onely started, but in a warm C [...]afe, the great doubt between the Secular & Regular States, about the due and immediate Receiver of Tythes▪ (not the Dueness, but the Due receiver;) and the claim parted be­tween two, the Church & the Monastery: The last might have heardSerm. de Temp. 218. Saint Augustine, should say, Decimae suns tribu­ta egentium animarum, (afterCaus. 16. Qu. 1. cap. 66 And a [...] home in Excerp. Egberti. Can. 100▪ much to the s [...]me. taken into the Canon Law,) Redde ergo Tributa pauperibus, Libami [...]a sacerdoti­bus; And theRes Ecclesiae sunt vota fidel [...]ū, patrimonia pau­perum. C [...]gitut. Carol. lib. 1. ca. 83. Capitularies, That they were the vows of the Faithful, and the patrimony of the poor: Hence al­lowing the Churches claim indisputable, They might There, In signum universalis Domini, They doubted whether they might not also be paid in to the Monastery, and that duty of a Reall confession of a Deity be sufficiently dischar­ged in giving to Themselves, the poor▪ that whereby they might as well confess and acknowledge a Divinity and high Providence by, as by giving to the other Church-men? Now how votes the Assembly? Ʋt Vid. Gratian▪ Vbi Sup. ca. 57. & 59. agreeably. Monachi Ecclesias non nisi per Episcopos accipiant, afterwards, That none receive what was the Churches, but by the Church; (and then [...] sibi datas (Ecclesias) ita expolient suis redditibus, ut Presbyteri ibi servientes, in iis quae sibi & Eccle­siis necessaria sunt, penuriam patiantur. Ead­mer. Vbi Sup. not to shave so close, that the labouring Minister might be to seek of wherewith to cover his Nakedness; a very con­scionable and reasonable provision!) And here, Ʋt decimae non nisi Ecclesiis dentur: That is, Those Tythes that are [Page 112] paid, and openly known to be due, in exclusion of the Mo­nastery (immediatly,) let them be issued forth onely to the Church. Another remote, mediate title they might have, that is, in the Churches Right, bringing them in in the Church­way, but of themselves they may not presume so high to lay any claim. Much more might be said, but this seems enough to enlighten the meaning of a dark Law, and as by all states equally and indifferently made, seeming to be universally binding: For it was not onely a Synod, butAnno domi­nicae incarnatio­nis 1102, tertio Regni [...]enrici gloriosi Regis Anglorum, ipso annuente, cele­bratum est con­cilium in Ecclesia B. Petri in occi­dentali parte jux­ta Lundoniam si­ta, communi con­sensu Episcoporū & Abbatum, & Principum totius Regni. In quo praesedit Ansel­mus, &c. Huic conventui affu­erunt, Anselmo Archiepisc [...]po petente à Rege, Primates Regni, quatenus quicquid ejusdem concilii authoritate de­cerncretur utrius­que Ordinis concordi cura, & solicitudine ratum serva retur. Eadmer. Hist. Nov. l. 3 p. 67. a part-secular-Assemby: For, besides the Royall Authority, there was also the Peerage; I will not say, the Commons, but Prima­tes Regni, which in some sense They may be styled, as the Heads of those they represent. Adunatum est Concilium; for more firmness, both states met, and united their Councels, to give things the more countenance and strength of univer­sall authority.

But the chief strength of these Dues was in this Interval in the Church, and so properly to our days, and the discussion of them in its own sphere with Church-men onely: For by this time they had gotten such a strength of credit and repu­tation, as well as power to be trusted with their own matters, and with the things of Religion, (their proper cure,) Tythes came in, as the support and maintenance, That now, ground­ing themselves upon the allowance and permission of the State, they might make Canons for themselves, and see them do execution, make orders for their Dues, and send for them in; and that ordinarily they did so, is sufficiently known to all that are acquainted with them, and the then transaction of things in this State. Do ye not know that the Saints shall judge the earth? (saith1 Cor. 6. 2, 3. Paul) And if the world shall be judged by you, are ye unworthy to judge the smallest mat­ters? Know ye not that we shall judge the Angels? how much more the things that pertain to this life! Lower, trifling, pe­rishing things! Can a man be thought fit for Those, and not for These? Is it like that his discretion, learning, judgement, honesty, and universall integrity and sufficiency, should be an equall match for Heavenly matters, Divine things, Scrip­ture-Oracles, reserved Mysteries, Articles of Faith and Reli­gion, [Page 113] and yet he be unfit to determine in a few worldly trifles? Heaven is under his hand, and Earth above him! These and such perswasions wrought, it seems, upon the reason of those times, (to have the Ministers of Religion intrusted at least with their own,) and thus much farther and out of the way, that the Temporal Courts were then chiefly ruled by Ecclesi­astical advice, Councellours, and Judges; the Councel Ta­ble, Common Pleas, Chancery, Judges Itinerant, and even the Vice-Royes Seat being often filled with those men, whose breeding to letters, successeful progresse in them, gravity, piety, and more then presumed honesty, made King and peo­ple of all sorts think nothing so well done, as what they would set their hands to, and the government of no affairs so well steered and managed, as what the Teachers of Religion and Men of God, (to whom they had committed the govern­ment of their souls,) would condescend to stoop and inter­pose for the conduct and guidance of; But as to Tythes, sure their Jurisdiction, as things belonging to Religion, was now brought in from the mixt County-Court, and settled among them alone, Illâ se jactet in aulâ, Authority had said so, and given leave; And then, as the Lord of a Mannour having au­thorised his Steward to keep Court, the Acts passe with his Authority, though by the others Ministery; So though De­crees and Determinations of emergent affairs were agitated by Ecclesiastical persons, and had their sentence and seal by their consent and mediation, yet the Supream and Univer­sal Power having given Commission, the things were autho­ritatively done, and regularly firmly enough Thence without any usurpation or irregularity, As in the Common Pleas, Seat of Assize or Sessions, where the Kings Substitutes did (who­soever or whatsoever) firmly enough by his power in his per­sonal absence. Neither was this any wrong to Any: for so the publick hand gave out Justice, what matter was it,Vid. Ridley, View of the Laws, par. 3 cap. 2. sect. 2. pa. 147. which? So the Throne were established in Righteousness, what matter who the Supporters? So Right were done, which was the Thing whereof came the benefit, what matter who were the Ministers that gave it forth, whether of this sort or that, one or another? Though a fair presumption be still [Page 114] for him that wears the Gown, and turns the Bible; and ge­nerally even Humane affaires are thought and found better stablished, that have their stay by Religion. In fact thus, Here it was so: that Causes Decimal moved in this sphere of the Supream Powers Ecclesiastical Cognizance and Jurisdi­ction solely, properly and onely; Neither may we henceforth expect, save in a glance or by reflex, any memory of Regular discussion and determination of them save in this compass: Or, as one Neighbour-Court takes notice of another, the Common Pleas of the Kings Bench, or the Chancery of the Exchequer; So the Secular whether Courts, Acts, Rules, or Decisions, took notice henceforward no otherwise of the duenesse or disposition of Tythes, then by a neighbourly Re­flexe, as the Admiralty takes notice of Englands Common Law▪ or the County-Court did of the Bishops Vi [...]itation.

Here therefore it may not be unseasonable to give the O­riginall of that Court, (which after á thousand others, would never have been so fitly called as by that proper name the Lawyers and the Law called it, ofGlanvill. de legibus Aug. li. 2 cap. 12. 7.—8, 13, 14. 10.—12. 12.—21, 22. Bracton de Ex­cept cap 3. sect. 2. cap. 4. sect. 2, 3. 7. cap. 10. sect. 1. Radulph. de Hengham sum. parva, cap. 8 pa. 105. Fl [...]t. lib. 5▪ cap. 5. sect. 50. cap. 26. sect. 26. cap 28. 10. ca. 30. 1, 2. li. 6. ca. 39. sect 5 9. ca 44. 6. Stat. de Westmin. 2. cap. 5. Circumspecte Agatis, 13 Ed. 1. Cooks Institut. 2. pa. 487. Doct. & Stud. Dia [...]. 2. cap. 55. Book of Entries, fol. 488. Curia Christianita­tis, or, The Court-Christian,Our Ancestors having the Common-wealth before ordained and set in frame, when they did agree to receive the true and Christian Religion, That which was before and concerned ex­tern policy (which their Apostles, Doctors, and Preachers did allow) they held and kept still with that which they brought in anew. And those things, in keeping whereof they made conscience, they committed to them to be ordered and governed as such things of which they had no skill, and as to men in whom for the holinesse of their life and good conscience, they had a great and sure confidence. So these matters be ordered in their Courts, and after the fashion and manner of the Law Civill, &c. Sir The. S [...]ythes Common Wealth, Lib. 3. cap. 11. Vid Cook Instit. 2. p 488. agreeable hereto. because Secular things (it should have been so) and of humane life being referred to their Regulations elsewhere, where there was blessed Law provided for them, The thingsCuria Christian [...]tatis, id est, Ecclesiae in qua servantur leges Christi: cum tamen in [...]oro Regio serventur l [...]ges mundi. Lynd [...]wood tit, de foro compet [...]nt. Gloss. Curia. of Christ, the affairs of the Church,Agantur itaque primò debita verae Christianitatis jura, secundò Regis placita, postremô causae singulorum. L. H [...]n. 1. cap. 7. in Lambard, pa. 180. Christianitatis Jura, as they were styled, the super-inducements to the Civil state of Religion and Sal­vation, [Page 115] were here set a [...]ide to a select Committee by them­selves, who by their rule should judge of Heresie, Schisme, Apostacy, Scandal, &c. comparing spirituall things with spiri­tual; Neither was the purpose of erection, the naturall Ju­risdiction, the lawful bounds, or intended first power as far as I could ever know or learn, meant of any excesse beyond this compass: Men might be irregular, and their courses ex­orbitant, Themselves wilde, but this their first and intended, allowed path: It may not be amiss therefore, I say, to give the Original of that Court,) its rise, growth, strength, and first power, when and by whom set up, and to what likely purpose: All which, may not be better sought then from the very Patent of Erection, which here therefore, (and be­cause it is some rarity, at least not vulgarly known) from suggestion of good credit, I give and exhibite. The Law of Ciroumspectè Agatis was directed to the13 Edw. 1. Bishop of Norwich, and the old Charter upon Record to theMatth. Par. ad an. 1100. pa. 53. in Hen. 1. She­riffe of Herefordshire, yet so as either the power and vertue of each was meant to reach to all, or, Mutatis mutandis, se­verall like Copies were sent: So here to Remy Bishop of Lin­coln; but it was the mould of all Ecclesiastical power. The Charter speaks thus:

Willielmus Gratiâ Dei Rex Anglorum,Cook Instit. 4. Of the Iu [...]i [...] diction of Courts, cha. 53. p. 259. and see M. Selden of Tythes, cap. 14. sect. 1. and in his Not. ad Eadmer. pa. 167. Comitibus; Vice­comitibus, & omnibus Francigenis & Anglis qui in Episco­patu Remigii Episcopi terras habent, Salutem. Sciatis vos omnes, & caeteri mei fideles qui in Anglia manent, quod E­piscopales leges quae non bene, nec secundum fanctorum Ca­nonum pracepta usque ad mea tempora in Regno Anglorum fuerunt, communi Concilio, & Consilio Archi-Episcoporum meorum & caeterorum Episcoporum, & Abbatum, & om­nium Principum Regni mei, emendandas judicavi. Prop­terea mando, & Regia authoritate praecipi [...], ut nullus Epi­scopus vel Archi-Diaconus de legibus Episcopalibus ampliùs in Hundretto placita teneant, nec ca [...]sam quae ad regimen animarum pertinet ad judicium saecularium hominum addu­cant, sed quicunque secundum Episcopales leges de quacunque causa vel culpa interpellatus fuerit, ad locum quem ad hoc [Page 116] Episcopus elegerit, & nominaverit, veniat, ibique de cau­sa sua respondeat, & non secundum Hundrettum, sed secun­dum Canones & Episcopales leges rectum Deo & Episcopo suo faciat. Si verò aliquis per superbiam elatus ad justi­tiam Episcopalem venire nou voluerit, vocetur semel, & secundo & tertiò; quod si nec sic ad emendationem venerit, Excommunicetur: Et, si opus fuerit, ad hoc vindicandum, fortitudo & Justitia Regis vel Vicecomitis adhibeatur: Ille autem qui vocatus ad Justitiam Episcopi venire noluit, pro unaquaque vocatione legem Episcopalem emendabit: Hoc etiam defendo & authoritate mea interdico, ne ullus Vice­com. aut praepositus, aut Minister Regis, nec aliquis Lai­cus homo de legibus quae ad Episcopum pertinent se intro­mittat: nec aliquis Laicus homo alium hominem sine Justi­tia Episcopi ad judicium adducat; Judicium verò in nullo loco portetur nisi in Episcopali sede, aut in illo loco quem ad hoc Episcopus constituerit.

This is by good information the erection of the Court-Christian: Before which, things (Tythes) were handled in Conjunction with other matters, at one meeting under seve­rall persons; but here their Jurisdictions were parted. There seems observable in this Concession:

1. That the Royal power acts, and derives this Autho­rity and leave to exercise Jurisdiction, and where, and how far, from it self: Mando, & Regia authoritate praecipio. For Quis? Who is to grant here Ipse Dominus Rex, qui ordinari­am habet Iuris­dictionem, & dignitatem & potestatem super omnes qui in regno suo sunt: Habet enim omnia jura in manu sua quae ad Coronam & Laicalem pertinent potestatem; & materialem gladium, qui pertinet ad regni gubernaculum; habet etiam Iusti­tiam & Iudicium quae sunt Iurisdictiones, ut ex Iurisdictione sua, sicut De [...] minister & Vicarius, tri­buat unicuique quod suum fuerit. Habet etiam ea quae sunt pacis, &c. Habet etiam Coertionem, &c. Item habet in potestate sua leges & constitutiones, &c. Nihil enim prodest jura condere nisi sit qui jura tueatur. Habet igitur Rex hujusmodi jura five jurisd [...]ctiones in manu sua. De acquir. rerum dom. cap. 24. sect. 1. fol 55. For he was under God sole Monarch: and so though he might not exercise all powers, it might be fit he did dispose of all powers, as to rule Preachers, though he did not preach: and so ease his shoulders by laying the burden of Duty upon whomsoever he should think fittest. He should have been everywhere, but sith he cannot, saith the same Authour, of Delegations: Si ipse Dominus Rex ad singulas causas terminandas non sufficiat, ut levior sit [...]lli labor, in plures personas par [...]ito onere, eligere debet de regno sue viros sapientes, & timentes Deum, in quibus sit veritas eloquiorum, & qui oderunt avaritiam (quae inducit cupiditatem) & ex illis constitue [...]e justitiarios, &c Id. de Action. 10. 1. fo. 108 This very Patent is alledged by M Selden, as an instance of the Kings Supremacy, in all causes, over All persons. Ad Eadmer. Not. pag. 166. Liberties but the King? [Page 117] says Bracton: He speaks it of Lay, but who sees it not to be fairly interpretable a part of Lay-business to oversee and ap­point Church-men what they should do, to direct and order where they shall speak, and treat, and act, or where not, if the manner or consequents foreseen import just fear of trou­ble or disturbance. Neither is this an usurpatiō or incrochment upon what is of spiritual office, any more then for David or Hezekiah to appoint the Courses of the Priests, How their Ephemerides for divine services should be observed, for Solo­mon or Joshuah to rule All Israel, or, amongst us, a Church-Warden to examine, and grant or deny a man licence to Preach, where he has power, and he is intrusted with the peace and order of the place, which is not to meddle with Preaching, but order about it.

2. That Royal power was full: for it was done in Com­mon-Councel, Communi Concilio, & Consilio (by the ad­vice) Archi-Episcoporum, &c. Et omnium principum regni mei, All the Chiefs of the powers about him.

3. The things limited to be directed about, were meer­ly spiritual, quae ad regimen animarum, no danger or intent of medling with affairs of the Common-wealth, or interpo­sing in business of Lay fee. A very good, and the best boun­dary of this Jurisdiction, and which alone secures extrava­gancy, from power to disturb in secular business, or so much as meddle with meerly humane affairs or interesses: where­unto the title also of, The Court-Christian, or of Religi­on, should have not a little furthered.

4. The remedy upon contumacy in not appearing, was proper, of Excommunication: Peters onely sword he might lawfully wear and use, and this but onely by the Kings Com­mission.

5. Yet the King assists him in the use of this, and comes to relieve his spiritual by the temporal, if need be. For the sword should back the Word, yea, gladius gladium juvat, intwisted power is strongest, and needs to be mutually assi­stant one part to the other.

6. No Lay Judge was to intromixe: What needed? the things treated on were, or were to be Ecclesiastical, and of [Page 118] another sort: They had their shop by themselves, and work to do, and each his own proper and fit; And it has been the great wisdom of the Nation to keep them apart, every seve­ral thing by it self, that no work or power should crosse ano­ther.

Object. Some Objections are from aLo. Coke, Vbi Sup. name not to be despised: as the time of inrolling, not before R. 2. time, and some obliqueAs if, that Book being of Hen. 1. time, the Bishops sate then in the Shire Court, and Christianita­tis Iura were then there plea­ded. Vid. L. Hen. 1 cap. 7. pa. 180. annexed to M. Lamb. Arch. contradiction from the Red Book in the Exchequer: as if by these the Patent were not au­thentick: But,

Ans. 1. Scarce is there any thing but somewhat may be said against.

2. At fair distance enough is the time of inrolment, sc. Rich. 2. and then it was but inrolled.

3. The preserver with the place of preservation are of much moment, scil. in the Tower, by the King: neither of which but gives much of presumption against forgery.

4. And other transcriptions do also agree: Manuscript, like this, and of those several kept too where least suspicion of forgery is again, in Registers. As those of theCook ib. Bi­shop of London, and Archbishop of Cant. In whichCaeterùm in actorū Rob. Win­chelsii Archiep. Cant. Registro seu publicis ejus tabulis Mss. toti­dem ferè verbis occurrit id quod Guilielmo Regi hic tribuitur. Regi etenim Edwardo 1. in or­dinum Comitiis, &c. Seldèn N [...]t. ad Eadmer. pa. 168. last Robert Winchelsee so long since as in Edw. 2. time, (and so long before Rich. 2. as in his great Grandfathers days) settles his draught of Articuli Cleri upon it, Presented to Edw. 2. as the grievance of the Church, and in his ninth year assented to for remedy.

5. M. Selden (a great name) questions it not. He made use of itHist. of Tythes cap. 14. sect. 1. thirty years ago publickly enough: He since exhibited it to view inPrinted in An. 1623. p. 167. the edition of Eadmers History, and has not (I believe) yet manifested any revocation of opinion.

So that I see not but we may set down this for the Bishops Patent of Jurisdiction, authentick enough, so long as he had any, and the first foundation of the Consistory, or as it was called Curia Christianitatis, in England the Court of Religion: not unfitly remembred here as the bottome of that power whereby the right of Tythes was with us discussed, and themselves recovered, as they had been, and were after, (as [Page 119] shall continue to be shewed,) stated by the Law. Whereunto there was also successfully and ere long such following and thronging recourse, that the great Inquirer here last mentioned findes it a task worthy his painful search and curious diligence, Hist. of Tyth. cap. 14. whether, after, the right were regularly handled under any other Jurisdiction? He findes sparingly some instances, Pa.. 422. as about Hen. 1. and his successours time till Hen. 2. and K. John: But since only in fives cases. 1. By way of prohibi­tion upon a suggestion of a Modus decimandi. 2. In a writ of Indicavit: (But neither of these were at first instance.) 3. By Scire facias from the Chancery in some aases. 4. In some other by process of b [...]re command. And, 5. By vertue of the late Stat. of 32 Hen 8. and 2 Edw. 6. No more: And these were but some scattering exceptions from the generall rule neither. He prefaces that inquiry withPa. 411. these words: It is clear (saith he) by the practised Common Law, both of this day, and also of the ancientest times that we have in our Year-Books, that regularly the Jurisdiction of Spirituall Tythes (that is, of the direct and original question of their right) belongs, I think as in all other states of Christendom, properly to the Ecclesiastical Court. And the latter Sta­ [...]utes that have given remedy for Tythes infe [...]dated from the Crown after the dissolution, leave also the Ancient right of Jurisdiction of Tythes to the same. He insertsPa. 421. after, that since about K. Johns time Original suits in T [...]mporall Courts for Tythes have been rare: Adding [...] discourse of the Indicavit, and changing the proportion of the dues of a Church to be the ground of it by the Statute of West. 2. cap. 5.Pa. 427. that long before, Tythes were deman­dable of the owner detaining them, of their own nature, and pleadable in the Spiritual Court, and there onely; and con­cludes, Pa. 447. that since 22 Edw. 3. there have been no Origi­nal Suits for Tythes in Temporal Courts, saving onely upon Prohibitions (at second instance,) and by the Stat. of 32 Hen. 8. and 2. Edw. 6.

It is some difficulty to understand learned men; but the consent these things seem to have with the truth, and have both among themselves and with other of like nature abroad, [Page 120] renders it hoped there hath been here no mistake; which if, Then hath been gained 1. The erection of the Court Chri­stian by Will. 1. 2. The transaction of Spiritual things there, even though formerly under the cognizance of the Common Law and Lawyer immediatly. 3. Tythes, (as Spiritualibus annexa, and evidently belonging to Religion, and thence within the compass of the Canons,) To move here as in their proper sphere. (Remember their Right was well enough pro­vided for before, Here were onely to be some emergent de­cisions for their regulation, or Recovery of stated dues.) 4. The Lay Jurisdiction outed as to cognizance immediate, direct and ordinary. 5. In practice things have been no doubt according. 6. And therefore we must now chiefly for a while attend the Church.

CHAP. XIX.

WHich we shall in two parts: as well to the Jus dare, as Ius dicere; to what we finde in this Interval to have been Legislative, as what was Executive; Giving more largely what belongs to the former, wherein was used the allowed power given in Regulating the Rule, framing Canons, or setting or keeping to right, that Law was here the rule of Right, but more sparingly touching at the later which concerned known practise: For, that such Courts were kept, is a thing vulgarly and to all known; That a dis­cussion was there, and a sentence the ground of Right and Own, the Lawyers of the other Gown will not deny; That things were there disposed, transposed, and settled to full property, the event did shew. Of this therefore the more spa­ringly, which is known and did but help to Recover Right; That which Gave it, being more proper for us, and both fitly ranged under that generall head of what was done by [Page 121] that power we are now confined to, which is Ecclesiastick. And here first,) If the Synod at Westminster, whereofPag. 111. before, were but a Synod, remembred be it and granted hence, what authority it must then have had: And likewise another more clearly a Synod under the Conquerour, but written in Saxon, where, (divers laws preceding of fasting, alms, penance, &c.) we have,Selden. Hist. of Tythes, chap. 8. sect. 14. Le [...] Tythes be paid of all that is possessed by the Lords bounty.

In a Councel at Clevemount in France, oneMatth. Par. ad an. 10 [...]5. pa. 21. in Will. 2. Canon was, Ʋnaquaque Ecclesia decimas suas habeat, [...] ad a [...]am trans­ferantur. Let every Church have its own Tythes without confusion: Which would not likely have been taken notice of in our authentique story, if it had not concerned us, as in­deed it did, and was no doubtHaec quae se­quuntur ca [...]itul [...] constituit (Yr [...] ­nus) & universa­li Ecclesiae tra­di [...]it observan­da. Id: pa. 20. of Catholique observa­tion.

In Tildesly A­n [...]madvers. on M. Seld [...]s Hist. pa. 164. Hen. 1. time, I finde it decreed in a Councel held under William the Archbishop about the year 1129. De [...]i­mas [...]icut. Dei summi Dominicas ex integro reddi pracipi­mus. We command they be fully allowed a [...] the Lords De­mo [...]es.

InSelden Vbi Sup sect 15. another at Windsore▪ about then is this Canon: Ʋt Laici decimas reddan [...] sic [...]t praeceptum est: That Lay­men pay, as is commanded. (I am now transcribing, and so hastening: It will not be long ere we get on our own wings again.)

Id. sect. 18. Alberique Bishop of [...] was [...]egate here under Innocent the second, in K. Se [...] v [...]nt [...], and He held a Sy­nod in Anno 3. where is this Canon: De omnibus Primitiis rectas decima [...] dari Apostolic [...] a [...]tl [...]ritate praecipimus, quas qui r [...]ddere no [...]rit, Anathema [...]is in enm sententia profera­t [...]s. Let him that pays not be Excommunicate; where it seems Primi [...]i [...] must be understood for every new years en­crease.

Mss. in the publique Library at Oxford cited in the [...] of [...].) D. Ridleys View of the Laws, pa. 1 [...]5. In Eugen. 2. time, about the year 1147, under the same King was held a Synod at Westmiuster, wherein tythes are disposed of. It has no more then a supposition of them, and that the Church disposed, which may yet crave place here as not of no consideration Nullus Abbas, Nullus Prior, [Page 122] Nullus omnino Monachus aut Clericus Ecclesiam sive deci­mam—sine Episcopi Consensu, &c. AndIb. two years after in another Synod there to the same purpose: Ʋt nul­la persona Ecclesias vel decimas accipiat—sine authoritate Episcopi.

By the way, we may not about these times much look for set and purposed binding Laws about Tythes; They nee­ded not, For Such had passed before, sufficient to raise and assure a Due: But onely to Regulate, dispose, or determine about emergent controversies, concerning them, and these not wanting.

In Hen. 2. time, I finde Alexander the third directing severall Constitutions (for that force his Orders had here) to the Bishops of Canterbury, Winchester, and Excester. They are taken by Gregor. 9. intoLib. 3. tit 30. de decimis. the body of the De­cretals, and no doubt had their power and found obedience here: forVid. Selden Review, pa. 489. where the Kingdome did not crosse, the Canons were, and it seemes by the Proviso of 25 Hen. 8. 19. are binding Laws. And let no man object here the usur­pation, or allay of credit from forain authority: Things so settled do, no doubt, often contract a right in Time, which (if the power be able to support and bear it self out,) doth with continuance grow up and soder into strength and firm­nesse enough, able ere long to walk the world without guide or aid, or we have little of stayedness and solidity here in England. If we go about to undo all (of secular depen­ding on sacred) which had its first rise, and that whereby it yet stands, from Rome, We need not go beyond Sea for Babylon, it will come home shortly to us, and we shall have confusion enough within our own Thresholds. Though we do not in present, we must allow of many things done heretofore and settled by usurpations, proceeding as well from abroad, as exercised at home, or the fruit of weightiest transactions will be robbed away from us, perhaps the pillars of the Com­mon-wealth shaken. As to those three Epistles, the first of them gives order as 'twere by a binding Law, thus:Cap. 5. Per­venit ad nos, &c. Mandamus, quatenus Parochianos vestros monere curetis, & si opus fuerit sub Excommunicationis [Page 123] districtione compellere, ut de proventibus Molendinorum, Pi­scariarum, foeno, & lana decimas Ecclesiis, quibus deben­tur, cum integritate persolvant. It was for four sort of Tythes to be paid, of Mills, Fish-ponds, Hay, and Wool: having after monition, Excommunication to refusers.

Cap. 6. The next is to the Bishop of Winchester: Nuncios; & infra. Mandamus quatenus Parochianos tuos de apibus, & de omni fructae decimas persolvere Ecclesiastica districtio­ne compellas▪ for Bees, and Fruit.

Cap. 7. The last to the Bishop of Excester: Cùm homines de Hortona, de frugibus, novem partibus sibi retentis, decimam Ecclesiae cujus Parochiani sunt, sine diminutione solvere te­neantur; & antequam id faciunt servientibus, & Merce­nariis suis de frugibus non decimatis debita totius anni pro servicio suo impendant, tunc demum de residuo decimam sol­ventes, Mandamus quatenus eos cogatis, ut decimam sta­tim fructibus collectis persolvant, atque de subtractis & retentis dignam satisfactionem exhibere procurent. It seems they were willing to deduct the charge of the Fermage before they marked out the Tythes, paying their servants out of the fruit for the work bestowed about them, and so apportion onely out of the free bounty of heaven,Cap. 22. 26. 28. sequ. & Vid. Lyndewood tit. de decimis cap. Erroris. Cap. Quoniam prop­ter. & cap. Sancta Ecclesia. a thing much stood upon, and by this Law stood against, which willed the tenth of all as it grew, and so was the pattern of the Old Te­stament: Their seed and labour were also chargeable, yet they were bound up, of All, without any deduction: And if Jehovah gave them their land, which, (presuming they would sow,) he might the better expect a charge from his own gift, This exaction is no less reasonable, or more bur­densome from us who Give nothing (of our own,) but issue out onely what was Given and set aside by others; it Iehovah required to be restored back to him of his own, we doe but pay what others of their bounty Gave, And therefore with them as to separating any thing we are possessed of in full title as our Own. Jam sumus ergo pares.

Out of the CanonAnnal. par. 2 pa. 543. Edit. 1601. Francofur. That it was taken out of the Councel of Rosne (ex Con­cilio Rothoma­gensi) the setter forth hath noted in the margin. Roger Hoveden points us to ano­ther plant growing in our own soil, which no doubt lived to take fruit downward, and bear fruit upward; and it was set [Page 124] toward the end of this Hen. 2. time by Rich. Archb. of Cant. in a Synod at Westminster the Lo. day after the Ascention, where (the King and his son being present) passed thus: Omnes decimae terrae sive de frugibus sive de fructibus, domini sunt & illi sanctificantur. Sed quia multi modò inveniuntur decimas dare nolentes, statuim [...]is; ut juxta Domini papae praece­pta admoneantur semel, sec [...]ndò & tertiò (according to the High Commission before given out by Will. 1.) ut de grano, de vino, de fructibus arborum, de foetibus animalium, de lana, de agnis, de butyro & Caseo, de lino & Canabe, & de reli­quis quae annuatim renovantur, Decimas integrè persolvant: or if not, Anathema. A full and plain Law, speciatim for Corn, Wine, Fruit, breed of Cattle, Wooll, Lamb, But­ter, Cheese, Flaxe, Hemp, and all that grows and renews yearly, &c. and of what power in the state, may be guessed both by from what before, where the Superiour Powers had joyned to intrust the Church in such matters (which implies their authority still;) and further here the K. and his son gave the present countenance of their persons to patronize and establish it. And heed also the Dueness supposed in the beginning, they were not now so much willed to be payed, as shifters to be brought in to discharge of known duties. Else­where also in the samePar. ead. pa. 75. Authour, Hubert Arch. of Cant. kept a Synod at York the Tuesday after Saint Barnabies day, 6 Rich. 1. where one of the binding results of Councel speaks thus: Cum Decimae sint tributa egentium animarum, & ex praecepto Domini dari debeant, non est reddentis eas diminu­ere: Therefore all to be paid without any diminution for Fermage, of which before, entirely. And much severity is again in anotherIn ead pa. 808. Provincial of the same Hubert after­ward, with Excommunication to those should withdraw any thing to pay the Harvest-mans wages, or the charge of new­broke grounds, or not to the Parish Church, &c. But be­cause this meeting was against the Lord Chief Justice his Pro­hibition, and so had not the authority of the secular power, I pass it over: though then it were of some doubt whether such meetings were valid, which is since clearly resolved that they are not, by the Statute 25 Hen. 8. 19. And so for [Page 125] anotherIb. Pa. 809. Canon against whether Templars or o­thers should receive Tythes from Lay-hands, in the same Au­thour.

To some time of Hen. 2. is referred a Councel Lateran under Alex. 3. limiting the former liberty of paying to Any Church, to the Parochial, as fittest to have benefit, and nea­rest to take the dues up: though later and quicker apprehen­sions remove the scene to Innoc. 3. who in K. Iohns time expressed his single will onely from the Lateran Church. This gave the mistake, or might well. M. Selden has it from theCap. 8. sect. 23. & Vid. cap. 10. sect. 2. print, and theInstit. 2. pa. 641. Lo. Cook from the more authen­tique Roll in the Tower, speaking fully what a papall Con­stitution might, and no more, thus: Pervenit ad audientiam nostram, quod multi in Diocesi tua Decimas suas integras, vel duas partes ipsarum, non illis Ecclesiis in quarum Parochi­is habitant, vel ubi praedia habent, & à quibus Ecclesiasti­ca percipiunt Sacramenta, persolvunt, sed eas aliis pro sua distribuunt voluntate. Cum igitur inconveniens esse videa­tur, & à ratione dissimile, ut Ecclesiae quae spiritualia se­minant, metere non debeant à suis Parochianis temporalia, & habere: Therefore proceed according to the Canons, and see obedience yeelded by Church-censure, &c. Dat. Lateran. Nonas Iulii.

Here, they say, was first a Parochial Right established: And if so, a Right; which I think none will deny, and is all I contend for: and the Lord Chief Justice grants it his way; though not by force of the Decretal, yet as Just and Right it was allowed, and so became Lex terrae. Any way serves the turn, and if the Position, much more the Supposition: If a Parochial right, then a Right, at least. Review some of the words: to which purpose, The grievance complained of was, that Many did not pay their whole Tythes, Decimas su­as integras vel duas partes ipsarum—to their own Mini­ster, but at pleasure: So they paid, the thing was done, And this the height of what I reach at.

To the same Kings time also I refer another Decretal sent hither from Innoc. Decret. Gregor. Lib. 3 cap. 28. col. 1230. Edit. Taurin. 3. to the Bishop of Ely, which had no doubt the same force here, not for right of Tythes (which [Page 126] remember had been before established, and was now but made Parochial; More then To Tythe, To the Parish Church, now growing as common as to enjoy,) but to satisfie a doubt that might arise about the manner of Tything, and wils no deduction should be for Mils and Ponds: (And still remem­ber also by what immediate consequence the supream power went on confirming All, whereof we read no contradiction.) Pastoralis Officii, &c. Explicari postulasti utrum quis possit de molendinis & piscariis necessarias expensas deducere, priusquam solvat decimas ex eisdem, sicut est in negotiatio­ne concessum? But it is long, and I refer to it. The forain power does somewhat againe here blemish: but remem­ber again too what before, and adde the so often men­tioned confirmation to us of Hen. 8. If a steward can do nothing, yet if a Lord ratifie, the Act is good: If the Chaplain be over-busie in a family, yet if the Master confirm, now 'tis valid, though the thing were besides his Cure: So if the Pope medled with that he should not, the King and State looking on, and not contradicting but consenting and approving; Here seems now a consummation of all-sufficiency of power at the first, and time going on to ripen what at first production was but raw, a growing up to all perfection. And so in that which next follows which I take to be of the same to the same, wherein resolution was given about new-broke grounds, supposing, I understand the Tythes of a place to be payable to a person, or Church out of the Parish, who should then have those new Tythes? 'Tis answered in favour of the Pa­rish Church there, That Church; unless the forainer can shew a very fair plea for them: Cum enim perceptio deci­marum ad parochiales Ecclesias de Jure communi pertineat, (so far it was gone then,) decimae novalium quae fiunt in pa­rochiis earundem, ad ipsas proculdubiò pertinere noscuntur, nisi ab his quae alias percipiunt decimas, rationabilis causa ostendatur, per quam appareat novalium ad eas decimas per­tinere. Sith of Common right Tythes did belong to the Pa­rish where they grew, The new-broke grounds must tythe thither also, unless very sufficient reason can be shewn to the contrary: This the substance.

[Page 127] But the strongest and most vigorous Constitution which with life and power hath acted among us, and indeed was the late seen and looked upon Rule and Law to guide All, was thatLyndwood Constit. provinc. lib. 3. tit. de deci­mis. Canon of Rob. Winchelsey, as it is usually sty­led, though Lindwood (the setter forth) says he found it in some Books ascribed to Boniface (of the same See,) or as in one very ancient copy, Constitutio communis Episcoporum congregatorum apud And so it is also in Pupilla oculi, part. 1 cap. 3. says M. Selden. Merton in Communi Concilio; as if so, it was the stronger, an act of the whole Convocation. But whose soever it was, it was about those times. (Remem­ber Rob: Winchelsey Polyd. Virg. Histor. Anglic. lib. 17. pa. 324. entred his charge Anno Domini 1293. about 19 Edw. 1. andId. lib. 18. pa. 3, 2. ended it about 1312, and 4 Edw. 2. and so we are, as we took leave, a little without the strict bounds of our method, behither M. Charta.) The words are as followeth; (and I English them for the use of every Reader.)

Quoniam propter diver­sas consuetudines in petendo decimas per diversas Ecclesias inter rectores Ecclesiarum & Parochianos suos rixae & con­tentiones, scandala & odia maxima multotiens oriuntur. Volumus & statuimus quod in cunctis Ecclesiis per Cantua­riensem provinciam constitutis uniformis sit petitio decimarū & proventuum Ecclesiarū. In primis, volumus quod decimae de frugibus, non deductis ex­pensis, integrè & sine aliqua diminutione solvantur, & de fructibus arborum, & de semi­nibus omnibus, et de herbis hor­torum nisi parochiani compe­tentem fecerint redemptionem pro talibus decimis. Volumus [Page 128] & statuimus etiam quod de­cimae de foenis ubicunque cre­scant, sive in magnis pratis, si­ve in parvis sive in Chiminis, exigantur, & prout expedit, Ecclesiae persolvantur. De nuirimentis autem animali­um, scilicet de Agnis, Statu­imus quod pro sex agnis & infra sex oboli dentur pro de­cima: si septem sint agni, in numero septimus agnus detur pro decima rectori: ita ta­men quod rector Ecclesiae qui septimum agnum recipit, tres obolos in recompensationem solvat parochiano à quo deci­mam illam recepit. Qui octa­vum recepit, det denarium. Qui vero Nonum, det obolum parochiano: vel expectet rector usque ad alium annum donec plenarie agnum possit recipere si maluerit; & qui ita expe­ctat semper exigat secundum agnum meliorem vel tertium ad minus de agnis secundi an­ni, & hoc pro expectatione pri­mi anni. Et ita intelligendum est de decima lanae. Sed si oves alibi in hyeme, alibi in aestate nutriantur, dividenda est deci­ma. Similiter si quis medio tempore emerit vel vendide­rit oves, & certum fit à quae parochia illae oves venerint, ea­rundem dividenda est decima, sicut de re quae sequitur duo [Page 129] domicilia. Si autem incertū fuerit, habeat illa Ecclesia totam decimam infra cujus li­mites tempore tonsionis inve­niantur. De lacte vero volu­mus quod decima solvatur dum durat, videlicet de Ca­seo tempore suo: & de lacte in Autumno & hyeme: Nisi parochiani velint pro talibus facere competentem redempti­onem, & hoc ad valorem deci­mae & ad commodum Eccle­siae. De proventibus autem molendinorum, volumus quod decimae fideliter & integrè solvantur. De pasturis autem & pascuis tam non communi­bus quam communibus statui­mus quod decimae fideliter per­solvantur, & hoc per numerū animalium & dierum, ut ex­pedit Ecclesiae. De piscatio­nibus, & apibus sicut de om­nibus aliis Bonis juste acquisi­tis quae renovantur per annū, statuimus quod decimae solvan­tur & exigantur debito mo­do. Statuimus etiam quod de­cimae personales solvantur de artificibus & mercatoribus, sc. de lucro negotiationis. Si­militer de Carpentariis, Fa­bris, Cementariis, Textori­bus, Pandoxatricibus, & om­nibus aliis Stipendiariis Ope­rariis; ut videlicet dent de­cimas de Stipendiis suis, nisi [Page 130] Stipendiarii ipsi aliquid cer­tum velint dare ad opus vel ad lumen Ecclesiae, si rectori ipsius Ecclesiae placuerit—Sed quoniam inveniuntur multi decimas sponte dare no­lentes, statuimus quod paro­chiani moneantur primo, se­cundo & tertio ut decimas Deo & Ecclesiae fideliter solvant. Quod si se non emendaverint, primò ab in­gressu Ecclesiae suspendan­tur, & sic demum ad solu­tionem decimarum per cen­suram Ecclesiasticam, si ne­cesse fuerit, compellantur. Si autem dictae suspensionis relaxationem vel absolutio­nem petierint, ad Ordinari­um loci mittentur absolvendi, & debito modo puniendi. Re­ctores autem Ecclesiarum seu Vicarii aut Capellani annui qui praedictas decimas praedicto modo propter formidinem ho­minum seu favorem, timo­re Dei postposito, (ut praedi­ctum est) cum effectu non petierint, poena suspensionis innodentur donec dimidiam marcam argenti Archi-Dia­cono loci persolvant.

Whereas by reason of divers ways of tything in di­vers Churches, strife and contention are wont to arise between the Church-Go­vernour and his people; we will and appoint, that through the Province of Canterbury there be this uniform way of Tything. First, wee will that Tythes be paid of Fruit without any deduction of charge intirely, and with­out diminution, (so reach­ing in an order about the charge of Fermage, spoken of before, and preventing that exception;) and of fruit of trees likewise, and of all seeds and garden hearbs, unless the Parishio­ners [Page 128] will make some compe­tent exception for them. Al­so we will and appoint, that Tythes be required of hay, (or green grass, if it be cut to spend, says Lyndewood in his Glosse) wherever it grow, in greater Meadows, or lesser, or in the High-ways, and that it be paid as is best for the Church: For breed of Cat­tle, as, touching Lambs, we appoint that for sixe and be­low, so many half pence; if there be seven, the seventh shall be tythe, yet so, that the Church-Govenour recei­ving the seventh, shall pay 3 half-pence to the Parishioner: He that takes one of eight, a penny, one of nine, a half­penny; or let the Rector stay for the tenth, if he had ra­ther, to the following year. And he that so stays, let him alwayes have the second or third best of the following yeare, and this for his stay. And so is it to be understood of the tenth of Wooll. But if the Sheep depasture one where in Winter, another where in Summer, the tythe is to be divided. In like manner if any one shall buy them in the middle of the year, and it be known from what Parish the sheep come, [Page 129] the tythe is to be divided, as of a thing belonging to seve­ral places; but if it be not known, let the Church have the benefit where they are at shear-time. Concerning Milk, we will that the tythe be paid as it ariseth, that is, of Cheese, so long as it is made, and of milk in Autumn and Winter, unless the Pari­shioners will make due com­pensation according to the va­lue of the tythe, and to the Churches advantage. As con­cerning the profits of Mils▪ we will that tythes be faithfully & intirely paid. As for pasture and feeding grounds, as well Common as other, we appoint the tythe be fully paid, and this with regard to the Beasts and time of going, as shall be best for the Church. For Fishings and Bees, as of any other goods honestly gotten, which renew yearly, we ap­point, that the tythe be paid and required duly. We de­cree also, that personal tythes be paid by Handy-crafts-men and Merchants, that is, of the gain of their trading; the like of Carpenters, Smiths, Ma­sons, Weavers, and all other hired Labourers, that they give the tythe of their wa­ges, unless they will give any [Page 130] thing certain toward the Light in the Church, and this at the Church-governors choice—

Then (after some words of Mortuaries.) But because there are many that refuse to pay their tythes, we will, that Parishioners be warned once, twice and thrice, (which was the number of essoyns allow­ed in the Conquerours Char­ter, as before) to pay their tythes to God and the Church truly. Or if they refuse, they be first suspended from entring into the Church, and so bee compelled by Ecclesiasticall censure, if need be, to pay. Or if they require release or absolution from suspension, let them be sent to the Ordi­nary of the place for it, and duly punished. And as to the Church-Governors them­selves, or Vicars, or Chaplains by the year, who for fear or favour of men, setting a side their awe to Heaven, do not effectually require their tythes aforesaid, let themselves be suspended till they pay a mark to the Archdeacon of the place for their disobedi­ence.

I have both transcribed at length, and translated this, as I said, because it is the chief Law, whereupon (immediatly) [Page 131] the dueness of tythes is grounded and known by the Ca­non: as to the Regulation of the manner of collecting this prevailing, though not as to the dueness it self; for this, as hath been shewed, was secured before, and therefore the law begins with supposition, and blame, that men did not Pay as they ought, which was here intended to be remedied. And for the sufficient authority hereof, we need not much doubt; for Lawyers and Men were awaked both then and ever since, & would not through ages and generations have been fright­ed or cheated with meer empty shews of Paper Canons into a foolish & childish awe of what was but terrible. They knew no doubt, from time to time there was strength enough (with help of former grounds) to carry things on and force them, if any rub of opposition were laid in the way, which made them pick a vertue out of that was indeed a kinde of necessity, and doe with seeming willingness, what if they would not, they must and might have been compelled to. Other Constitutions are also about the same time, but not of so great moment; yet, because they have some force, our niggardize shall not suppress what may be pleasing, profita­ble, or in any regard useful. The next is about Cattle re­moveable from place to place, and hath vertually sixe propo­sitions.

Quoniam ut audivimus, &c. Nos viam pacis praepa­rare volentes statuendo defi­nimus, & definiendo statui­mus, quod ad Ecclesias in quarum parochiis oves à tem­pore tonsionis usque ad Fe­stum S. Martini in hyeme continuè pascuntur & cu­bant, decimae lanae, lactis, & casei ejusdem temporis, licet postea amotae fuerint ab illa parochia & alibi tondeantur, integrè solvantur. Et, ne fraus [Page 132] fiat in casu praemisso, praeci­pimus quod antequam oves amoveantur à pasturis vel etiam distrahantur, Ecclesia­rum Rectoribus sufficienter de solvenda decima caveatur. Quod si infra praedictum tempus ad diversarū parochi­arum pasturam transferantur, quaelibet Ecclesia pro rata temporis portione decimam percipiet earundem, minori 30 dierum spatio in rata temporis minimè computando. Si ve­rò per totum tempus praedictum cubant in una parochia, & pascantur continuè in alia, inter ipsas Ecclesias decima di­vidatur. Quod si post Festum S. Martini ducantur ad pa­scua aliena & usque ad tempus tonsionis in una vel diver­sis parochiis, sive in propriis pasturis dominorum suorum sive alterius cujuscunque pascantur, habita ratione ad nu­merum ovium pascua aestimentur & secundum aestimationem pascuorum ab eorum dominis exigantur decimae.

1. Where sheep are con­tinually feeding, and folded from shear-time to S. Mar­tins day, there the whole tythe to be payable to that Church, and caution given accordingly before the remo­vall.

2. Within that space if they change from place to place, each Church to bee satisfied for the time, not rec­koning of less then thirty days; Or if they feed in one [Page 132] place, and fold in another, then to divide; and so after rate­ably.

3. Milke and Cheese to be paid where the Beasts feed and couch: If these in seve­rall places, then to divide.

4. Lambs, Colts, &c. to be paid, habita ratione ad loca diversa ubi gignuntur, oriuntur, & ad moram quam traxe­rint in eisdem: with regard to where they were bred, kept, and stayed: Milk, where the quantity is small, and so for Lambs, Colts, &c. according to the usage of the place.

5. What sheep live to S. Martins day, to be accounted for, though they be sold to the Shambles, or die after.

6. If shorn in any Parish, the Wooll supposed there due, unless it were made appear to the contrary.

This I said, is but supplementall, for parting strife. Men would be ready to require their dues, and every honest man should be as ready to pay; but occasions requiring them to chop and change before the year came round, this was an equall and conscionable both provision and praevision, to set down before-hand a fore-appointed rule what either should expect, and so part strife before it was begun. A summary confirmation of all which before, and more distinct recitation of some things, is in another of the same Authour following:

[Page 133]

Sancta Ecclesia, &c. Cum Sacro eloquio jubente de om­nibus quae novantur per annū nullo tempore excluso decimae sint cum omni integritate & absque diminutione solvendae, Lice átque unicuique capella­no parochiali, Rectori sive Vi­cario Parochianos suos per cen­suram Ecclesiasticam ad solu­tionem decimarum compellere, Omnibus & singulis Rectori­bus, Vicariis & Capellanis Parochialibus & Ecclesiarū Parochialium Curatis per no­stram Provinciam Constitutis in virtute obedientiae manda­mus firmiter injungentes, qua­tenus diligenter moneant & efficaciter inducant, & quili­bet ipsorum in Parochia sua moneat & inducat, quod prae­dicti Parochiani omnes & sin­guli integrè & sine diminu­tione decimas inferiùs anno­tatas Ecclesiis suis persol­vant: sc. decimam lactis à primo tempore suae novationis, tam mense Augusti quàm aliis mensibus, de proventibus etiam boscorum, pannagiis sylvarum, & caeterarum arborum si vendantur, vivario­rum, piscariorum, fluminum, stagnorum, arborum, pecorum, columbarum, seminum, fructuum, bestiarum guarenarum, au­cupitii, ortorum, curtilagiorum, lanae, lini, vini, & gra­ni, turbarum in locis quibus fabricantur & fodiuntur, cyg­norum, caponum, aucarum, & anatum, ovorum, thenicii agrorum, apium, mellis, & cerae, molendinorum, venatio­num, artificiorum, & negotiationum, necnon agnorum, vi­tulorum, pullorum equinorum secundum eorum valorem, & [Page 134] omnium proventuum rerum aliarum de caetero satisfaciant competentes Ecclesiae quibus de Jure tenentur, (harping still upon the right and that granted) nullis expensis ratione praestationis decimarum deductis seu retentis, nisi tantum de praestationis decimarum artificiorum & negotiationum. Quòd si monitionibus suis parere contempserint, per suspensionis, Excommunicationis & interdicti sententias eos ad praestatio­nem decimarum hujusmodi compellant.

Forasmuch as by holy Scri­pture all that renews yearly is to be tythed, and it is lawfull to compel men thereto; we command all Church-Gover­nours and their Substitutes to move and inforce all under their powers to this duty: that is, to pay of milk, of the pro­fits of wood, of mast if it be sold, of stews, ponds, rivers, pools, trees, cattle, pigeons, seeds, fruits, beasts of warren, (that is, under known custody and guard, for so the word imports) of hawking, gardens, orchards, wooll, flaxe, wine, grain, peat, swans, chicken, geese, ducks, egges, hedge­rows, bees, honey, wax, mils, hunting, handicrafts, mer­chandise, lamb, calf, colt, and all other revenue without de­duction of costs, &c. or if not, to proceed to Suspension, and Excommunication, &c.

[Page 134] These three Constitutions (Decrees, Statutes, Laws, Or­ders, they were for payment, call them what you will,) were in one mans time, and about the parting of Edw. 1. and Edw. 2. Raigns: which (it seems) did not yet so remedy things as to prevent all future broyls. A thing impossible: Con­tentions will last while the world: Laws can never reach their full intended force and operation in quieting strifes, and calming the storms of mens rage and wrangling passions full and wholly, but ever and anon they will break out to mischief and disturbance: the Root is in our corrupt nature, which will not but have Spring at some time of the year or other to shoot forth and fructifie unto grief and trouble, in resem­blance of the earth, cursed for our sakes into a proneness to weeds, and most Natural feracity of Briars and Thorns. We shall finde this disposition generally received through the world,Act. 20▪ 35. that most men are more quick and nimble of the receiving hand, then of the giving, and though they be the words of the Lord Jesu, That it is more blessed to give then to receive, yet they will take the contrary by a bold inversi­on, and think it better howsoever for them, to Receive then to Give. Of the same extent is also this Constitution of things, That where many are to pay known dues, some will bee found backward, standing off as far as they dare till necessity constrain them to come in; Which makes it a rare instance but if any be to receive never so known dues, some will fall short, at least there must be wrangling with a mul­titude, and this shall be hardly avoided with some, whosoe­ver hath to deal with many. A fruit of our corrupt nature; mourn we for it in private, and sorrowful mischance to ma­ny of all mankind, condemned hereby to live as it were in [Page 135] fury of a tempest, in the flames of passion burning and re­newed to the mutual torment of One another: A great di­sturbance of the quiet and peaceable world, and unfortunate occasion of many troubles to many, who being of themselves not disposed to trouble, are yet (by the things they have to deal with) forced beside their nature, and by the cunning craftiness of those that lay in wait to deceive (whose versa­tilous shifts are hard to be avoided) often put upon this Di­lemma, of either gaining contention, or losing right; and if there be but one of a multitude disposed to wrangle, he that hath to deal with All, must oppose that man and bear half the blame; and as suits and troubles increase with his unjust vex­ation, his seeming guilt increases also. If this were not, we should have much toward a quiet and thereby happy world, approaching the simplicity of the golden age, with return of its peace, calmness, meekness, love, and a constant serenity of all things; A blessing so highly inriching, that it seems the wise Providence above does not think fit to trust, or rather tempt us with, because perhaps beyond our power to ma­nage or bear so great a happiness. Which aptness to conten­tion shewed it self soon after the Canons formerly made and mentioned, divers seeking shifts to evade and disappoint the clear intent of those plain and well-meant Laws, so plain, one would think, that there were no way left to delude or shift from the meaning and purpose laid forth in such plain and perspicuous expressions: Which awaked also ere long after that, the watchfull prudence of him sate then in highest place of power and trust for such things, to cast the best he could to advance ready justice, and yet further prevention of all disappointments thereof. In time it follows (as in place it goes before, in the same Lyndewood) those we have gi­ven, and was intended to strike off their exceptions, who could not deny their dues, or to set them out, butAlii vero no [...] attendentes quod Dominus Omni­potens, cujus est terra & plenitu­do ejus, & universi qui habitant in ea, decimas in signum universalis Dominii sibi reddi praecepe­rit & pro suo cultu easdem Cleric [...]s Assignavit, aliquando m [...]itiosè impediunt, impedi [...]ive faciunt vel procurant vir [...]s Ecclesiasticos ad quos spectat perceptio decimarum corúmve servitores quo minùs liberum ingressum & egressum in praedia & à praediis de quibus hujusmodi decimae prove [...]iunt habere possint, &c. Alii etiam nisi prius chirothecae vel caligae seu quicquam aliud eis dentur, seu promit­tantur, decimas hujusmodi asportant & consumunt, asportarive & consumi faciunt, seu aliquod dam­num inferunt inferrive faciunt in eisdem▪ Symon Mepham. cap. Quia quidam. they [Page 136] would hinder those should fetch them from coming upon their ground, without which they could not obtain them effectually, unless they had gloves, stockings, or some other such bribes given them for the quiet delivery of what they acknowledged due; which if they had not, they would pur­loin or corrupt, or one way or other disappoint the true and rightful owner. O malice, whether wilt thou! O guile, when wilt thou leave working! O fraud, deceit, and wretch­ed covetousness, when will you cease your injurious combi­nations! O cursed craft, and griping, shifting, over-rea­ching worldly-mindedness, when will you give over to dis­appoint the best-meant Laws of men, sith your use hath been of old to pervert even [...]. Crooking his straight ways. Act. 13. 10. the Righteous ways of the Lord! The remedy was here, as in former cases, the severity of Excommunication: Nos igitur perversorum damnabilibus consiliis salubre remedium imponere cupientes, nihil novum statuentes, sed antiquorum Canonum statuta in medium de­ducentes, (mark that, no innovasion) universos & singulos hujusmodi instigatores, impeditores, & alios supradictos, &c. to be fast locked under the heaviest of Church-Censures, and not released from that Bond of God, save at the houre of death, or upon promise of amendment with satisfaction. Yet this helped not all: The wit of malice that pierceth deep had found out another nest of manifold devices to hinder the course of rightIoan Strat­ford tit [...]od cap. Erroris damna­bilis by these four disturbances: 1. Paying but the Eleventh for the Tenth, in regard of Summer-char­ges, &c. 2. Dividing but not marking out the sheaf, and The remedy of the grievance might be that which King Ri­chard after inten­ded to grant by his gracious Con­cession of 2 Rich. 2. cap. 14. remem­bred below, pa. then molesting the taker of it away as for theft. 3. Ar­resting the workmen for taking the convenientest way. 4. Forbidding to take what was ready, till the whole field was rid, which occasioned much spoil: Against all which is drawn the glittering sword, of which before of Church-cen­sure, and the power used (lavishly) enough which should not be used upon trifling occasions. Excommunication is a hea­vy doom, 'tis hard it should be laid on for trifles, as the pet­ty things of this world, or the powers of the world to come drawn forth to vile and sordid profanation, degraded below their due value, and highest worth to serve any ends which are not spiritual.

CHAP. XX.

HAve we yet done? no; we are now but to begin another tedious wrang­ling controversie about Tythe-wood, and this indeed lasted long with much violence between the parties conten­ding, till at last it settled (wel near) in the binding statute of Sylva caedua. The grievance on the Churches part wasTit. eod. cap. Quanquam ex solventibus. this; That whereas less charge was in manuring for Woods, and longer expectation for one Harvest in many years, yet disbursements for the felling, &c. were claimed to be allowed when it came, before the Tythe set out, and the Countrey, which was worst, had a custome for this unreasonableness. No such matter: The continuance of the disease did rather call for a more speedy remedy, which it had, and therefore is first determined what Sylva caedua was; Quae cujuscunque existens generis arborum in hoc ha­betur ut caedatur, ('twas let grow to be cut,) & quae etiam succisa rursus ex stirpibus aut radicibus ren [...]scitur, (being cut, it grew again afresh:) and then that All should be ty­thed as it was felled; or if not, proceed to censure as before. But this it seems the State would not allow; for the inconve­niences emergent occasioned that complaint put up by the Selden Hist. cap. 8. sect. 28. & sequ. Commons then sitting in Parliament for remedy: And so the year following, sc. 18 Edw. 3. and three years after again, sc. 21 Edw. 3. and four years after that, 25 Edw. 3. and yet not full remedy till about twenty years after, scil. 45 Edw. 3. where ordered in Parliament, and45 Edw. 3. ca. 3. Pulton. pa. 196. ordained: Item, at the complaint of the great men and Commons, shewing by their Petition, that wheras they sell their great [Page 138] Wood at the age of twenty yeares, or of greater age to Merchants to their own profit, or in aid of the King in his wars, Parsons and Vicars of holy Church do implead and draw the said Merchants into the Spiritual Court for the Tythes of the said Wood in the name of this word called Sylva caedua, whereby they cannot sell their Woods to the very value, to the great dammage of them and of the Realm, It is ordained and established, that a Prohi­bition in this case shall be granted, and upon the same an attachment as it hath been used before this time. This was intended a finall end, but it seems was not: some doubt sprung out afterward upon pretence thisSelden ubi sup. sect. 33. was not an Act, but an Ordinance, whence a return of the former circulation of things; occasion given, discontent arising, dislike, trou­ble, and complaint for remedy. How it was pacified I find not, but have heard that the Statute (or but Ordinance) pre­vailed: A signe that it was strengthened with someYes: there was a Petition put up in the next Parliament, 47 Edw 3 and by or­der thereupon a Prohibition to be formed in Chan­cery, which was formed, and that has quieted all to this day. Co. Inst. 2. pag. 643. ad­ditionall sinew of new and fresh authority, forasmuch as what we see prevailing in Law, we may well suppose some Decree to have ushered the lawfulness thereof; and if upon alterca­tion, the scales hanging even on both sides, one does at last evidently preponderate, some weight of auth [...]rity may be thought likely to have been thrown into that scale we see settle and keep the advantage, and That is it there keeps and settles it. So likely it did here; and in and from this agitation of things, and so as they did settling, this seems observable, and not to be passed over: The Temporalty did, we see, in­terpose to alter and change what the Church had decreed and settled by her best power; Their temporals were their own, and they would not endure themselves to be unreaso­nably incroached upon by any forced impositions, which made them move again and again, and would not cease till their grievance had remedy; I doe not finde they did the like in other cases, bound up fast by other the Churches de­crees before; but let them pass; Therefore (by comparison) I judge they approved what they did not dislike; TheirQui tacet, consentire vide­tur. Reg. Iur. Can. 43. Scienti & consentienti non fit injuria neque dolus. Reg. [...]8. silence gave consent, and so they suffered themselves to be car­ried along with that stream of power they saw come from the [Page 139] Church to carry on what it undertook, and to make a Con­vocation Act strong enough in this case to settle a temporall sort of things that had a touch (in that they were annexed to, and the support of Gods service) of spirituality. (For all along I desire it may be carried in minde, The Consent of men is the firm and only bottom whereupon temporal Right and Dominion do rest here: Men have agreed, Therefore Thus it was; Which was here and thus compleat and per­fect.) If the Temporalty had not stirred at all, it had been some signe they might not: If they had stirred and not obtai­ned, the victory might have seemed over their power, not their Right, and so the use of their discretion to have stayed for their right and moved by their power for it, in a time when they were likely to obtain: But sith they stirred, and obtained, and had redress reall and effectuall, A signe they might at any other time, A sign they might have obtained, A sign that in other things they let silently and quietly pass: Which sith they did not, Therefore they consented, There­fore they allowed, Therefore what was done was authorita­tive by Them; And so this whole disposition of things (even all Lindewoods Collection) had their Negative implied con­firmation, in that they did not hinder, And by Consequent even by them, (save in the case of Sylva caedua) the Canon was Law, English Law, and approved by all, in that none cast a rub in the way to hinder, whereas they might, and in other cases did, But Here they did not. The same Authour hath other things dispersed, (for these were hitherto toge­ther under one title,) as, whereLib 1. tit. de Cons [...]etudine. c. Nullus Rector. Prohibition is to sell any Tythes before the 25 of March; After, the Rector might declare his will of the fruits, to pay his debts, or sa­tisfie legacies, which was ordered in Hen. 3. time: And else­where Lib. 5. tit. de Sententia Excom­mun. cap. Cùm saepius. they were to be Excommunicate who suggested by Calumny to the King and his Judges, that the Ecclesiasticall Justicers held plea of Advowsons, Chattels, and other (temporal) things belonging to the Kings Court, Cum iidem praelati & Judices super decimis, peccatis, & excessibus suo­rum subditorum suae Jurisdictionis officium, prout ad eos per­tinet, exercent; They did but do their duty and discharge [Page 140] their office, medling of those things that did appertain unto them, tythes among the rest. Neither was this the lesse true, or the judgement of it of no credit, because 'twas spo­ken of and by themselves: The thing is evidently and notori­ously known, nor shall want the recognition of their jealous neighbours, the other Courts, who cannot but acknowledg the Jurisdictions here severed and cut out as it were imparti­ally and by a thread; nor could a more proper and formal essential difference have been found out between the one and the other then this, That the one did handle De jure Patronatus & catallis, &c. as it ought, universally of the things of This world, and the other of the rest, and tythes a­mong the rest.

Which lets us fitly onward to the other, the Executive part of these Legislatives hitherto, and how they had their force in the proper place designed thereunto for recovery of these things thus made Due and stated according to these Laws; but hereof I have not much to say. I was always a stranger to their proceedings, nor as to gain or lose, did I ever do or suffer, what might import favour or wrong, to be thereby holpen or hindred at any time; Onely this I have heard spoke out by the clear and loud fame of the world, That here mens rights were tried, and examined, and lost, and re­covered: Pleas were heard, and sentence given, and that sentence did, or should, or might have found obedience. If all had not been right and square, as we say, exactly justi­fiable, If there had been any remedy at Westminster, or any where else that could have been thought of, If the Goddess Themis had had any Asylum or refuge upon Earth whereunto covetous and carnal men might have had recourse in their fears, with any hopes of protection in those affrighting tem­pests, that like some kinde of lightning melted their gold and silver in their purses, yea, out of their purses, No doubt but such desired shelter would have been made to with greatest diligence and truest endeavour: Questionless in what dark or remote corner soever it had hid it self above ground, men would have both sought it carefully, and found it successfully: Undoubtedly every one man would have told his neigh­bour, [Page 141] and he another, these more, and by degrees all; The information would so soon and luckily have propagated it self, that no manner of doubt should now have remained, whe­ther such a place had been or not; the path would have been more trodden to it, then to any Church or Market-place in England: But they knew there was none such, They knew all was there, of this nature, (while it was,) firm and an­swerable; They knew those sentences were there (in their kinde,) by the approbation of all men, and Authority of the Law, valid as those at Westminster, Pulsa dignoscere cautus, quid solidum crepet: They knew, Try whoso would, There was that solidity. Civil Laws did approve, successions of Parliament had allowed, the King had given leave, the whole State had given allowance of those proceedings, and above all, the Law held them just and according to Law: And so unless her self would contradict her self, the head fall off from a principall member, or Justice oppose Righteousness, They (all the Magistrates, Powers, Laws, and Lawyers of England) knew, and could not but pronounce a just sen­tence in that Court for Tythes to be just: were it for sheaf, lamb, fruit, venison, the tenth Thrave, or but a Tythe-lock of wooll; What a sentence did at Westminster, that a decree did there; What a Verdict and Judgement upon an Assise, That a conclusive determination upon mature deliberation did here; and What sufficient ground of Right that gave of Do­minion, that a man might thence claim a piece of ground or debt of money, Hic codex est meus, Haec domus est vestra, By equall vertue of a like sentence here, this due charged upon every parcel of land or herd of Cattle had declared right, yea, and judgement for it, in order to execution; Or if any would not come and submit, vocetur primò, & secundò, & quòd si nec sic ad emendationem venerit, Excommunicetur, as tertiò; leave was given in the Charter.

Thus as to the power intrusted with the Church, I have now almost done; we see what the Supream Authority gave in Commission, we see what use was made of it, we see what connivence or more there was of all other powers, and what obedience likely; but of this the less being unacquainted at [Page 142] Offices: We cannot in short doubt but the Church made Laws about Tythes, that they caused them to be done to exe­cution, that the State inabled them, that the whole Civill Power more then connived or permitted, appointed, autho­rised, and strengthned that power whereby was acted thus according to office and duty on one part, and leave, desire, expectation, and full trust on the other: The result of all doubtless a full right, a clear, assured, undoubted, fast, safe and honest title, as good as Any had to Any thing, and the evidence of things may discharge the superfluity of more wast words; If any right were anywhere, it may doubtless be reasonably thought to have been unavoidably, Here, Sure, and Thus. There remains yet one onely thing more, some­what in intention, was never quickned to full Act, but was purposed to give much in little, the life, spirits, and vertue of all before in the new intended to be purified Canon Law by Hen. 8. authority. A thing often glanced at, but here fit to be represented together, and briefly and summarily was therefore thus: The25 Hen 8 19. Clergy upon casting off the yoak of forain Supremacy, and submitting to that King, petitio­ned to have the Provinciall Synods and all the Canon Law as far as of force here, to be viewed and purged, and this to be done by thirty two persons to be chosen by the King, wher­of sixteen of the Temporalty, sixteen of the Clergy. The King granted readily what perhaps he had willed to be as­ked, and the persons were to be members of the present Par­liament; but because so great a wheel could not be brought about in so little time, the Parliament sitting, their desires inlarged, were also granted, that it might be done after, and then so many Canons as should continue approved, should be retained, the rest as refuse cast away. This was upon the matter to furnish the Spirituall Court with a new rule, wher­to as much of the old as would should have served the turn again but till that were done, what was in being to remain. and this so farre intended and minded, even with an eye to this very particular, that after when aProvided al­ways, and be it ena­ed by Authority aforesaid, that this Act for Reco­vering of Tythes, ne any thing therein contained, shall take force & effect, but only untill such time as the Kings Highnes [...]e, and such other 32 persons, which his Highnesse shall name and ap­point for the ma­king and establish­ing of such Laws, as his Highnesse shall confirm and ratifie to be called the Ecclesiastical Laws of this Church of England. And after the said Laws so ratified and confirmed as is aforesaid, that then the Tythes to be paid to every Ecclesi [...]stical person, according to such Laws, and none otherwise. 27 Hen. 8. chap. 20. new Law was [Page 143] needed for Tythes, Proviso was thought as fit to be added, that it should obtain but till the promised reformation: In the mean while time slipping away, and little or nothing done in the business under nor after Parliament, there was need to have the power27 Hen. 8. 15. renewed for longer date, which was done once and again, and so at length for the whole35 Hen. 8 16. time of the Kings life. K. Edw. 6. also2 & 3 Edw. 6. 11. continued it for three years in his time, All repealed by1 & 2 Phil & Mar. chap. 8. Queen Mary, but revived by theirElizab. 1. c. 1. Maiden Sister. The fruit I find no less then the work in some sort done, and published in the Queens time by J. F. but reprinted about ten years since, under the title of Reformatio legum Ecclesiasticarum ex authoritate Regis Hen. 8. inchoata, deinde per Regem Edw. 6. provecta ad auctaque, &c. Londini 1640. Where heed the title, It was but Reformatio legum Eccles. in what form soever the new Mint should have come forth made of the old metal; Not Inventio, Rogatio, Interrogatio, Promulgatio of any thing anew, but its very self, Reformatio, Confirmatio, or Nova­tio, a new setting out of what had been before: Not the sending for new Tables to Athens, or such godly and costly proceedings as the poor blind Indians must make, (rising from the flat level) if it shall please God at any time to give them repentance to the acknowledgement of the truth, that they may recover themselves from the snare of the Devil who are taken captive by him according to his will, To make their Native Ordinances square and fit into one building, as to the new teachers maintenance; Raising perhaps the tenth fliece from the flock, the tenth lamb from the fold, the tenth sheaf from the shock by a costly devotion, and out of their Own creating unto him a new Right; But to revise and settle that which was, to consider the ways of taking up, remedy the inconve­niences, remove the obstructions, and scoure the wheels up­on which suits moved, still leaving the thing they found, they needed adde no more, but say, Those rights shall be paid that have been. This all they intended, a Reformation, not destruction, which would infer need of a new creation; Not to adde an apple or an aye more, as that Poet said, which I shall always account unjust (unless with much caution limi­ted,) [Page 144] and would not have done for God or man. No not for Religion, which needs not injustice, or that any be put out of his Right for Gods sake; And God be thanked, as things are, and the world has been devout heretofore and devoted, it needs not; Let but God and man have their Due, and Re­ligion is well provided for. We may talk of raising more by fruitfull beneficence, and the good will of men shall move Mountains this way; But let the Law of the Gospel have but our equall justice, with discreet administration of that which is, and it seems not to want already what the world can or need do for its outward sustentation by what was done for it before our fathers were born. Well: this plotted Re­formation as 'tis called, (to go on,) was as to the work to be performed, taken into four quarters, and each quarter again into as many Cantons, whereof every one had two Bishops, two Divines, as many Doctors of Law, and so many Common Lawyers, (contributing their powers and endeavours to stu­dy, act, and oversee,) and to perfect all. Sir Walter Haddon and Sir Jo. Cheek were to fit it with ornament for the setting forth, which they did representing it to the world, (and so it is now to be seen,) dressed up in a very fair Robe of curious Romane language: As to Authority published it was with two Manifestors of the two Princes, willing itStrictè prae­cipientes ut his nostris Constitu­tionibus vos om­nes & singuli tàm in judiciis quàm in Gymna­siis utamini. Hen. 8. in Epist pra­fixa. to be studied and followed in Universities and Courts, 'tis hard to give the reason why it was not; All which was need­full to know, that we might infer of what power and autho­rity is that we shall alledge. OnePa. 215. title is, de Decimis, having under it nineteen Chapters as followeth:

Cap. 1.

Decimas esse solvendas.

Quoniam Dominus noster Jesus Christus hanc ipse legem sancivit, ut qui doctrinam inter homines conferunt, ex docen­di labore praefidia vitae metant, & ejusdem Domini nostri testificatione, Digni sunt mercede quicunque sunt in opere; Porrò divinum jus scriptum bovi trituranti cum os obligari [...]on sinat, nobis exemplum divinae clementiae repetendum est, & validè videndum, ne vel nimia nostrorum hominum ava­itia vel negligentia fiat ut Ecclesiarum nostrarum ministris [Page 145] justi & convenientes fructus ex sanctissimorum occupatione munerum non suppeditentur.

Cap. 2.

Decimae praediales quo modo solvi debent.

Igitur authoritate nostra constitutum sit, ut omnes singuli­que subditi nostri, locis & temporibus designatis & legitimis, decimas omnium rerum ex praediis provenientium ministris se­ponant, sive foenum sint sive fruges qualescunque quorumcun­que locorum, sive Crocus, sive Canabis, sive linum, sive sint olera vel arborum fructus, &c. and so on to the exactness of the Pharisee to tythe All. Of Mills, Turves, Coles, Quar­ries, Pastures, (Agistment cattle I think they mean,) the breed of Cows, Swine, Sheep, Mares, Swans, Hens, Geese, Pige­ons, Conies, Deer, Fish, Bees, &c. Revising and expoun­ding the Act of Parliament a little before made and appro­ving it. But because the rest at large may take up too much room, therefore take but the Quintessence as it were extra­cted in the Contents of the Chapters.

Cap. 3.
Animalium decima annua quomodo juxta nu­meri rationem solvatur. How the tenth shall be reckoned.
Cap 4.
Divisio decimarum qualis sit.
Cap. 5.
Decima rerum alienatarum quomodo recupene­tur.
Cap. 7.
De Jure Vicariorum.
Cap. 8.
Quando minister ex proventibus Ecclesiae ali non potest: Directing and counselling to all lawfull means can be thought on for augmentation.
Cap. 10.
De decimis colligendis in aliena parochia.
Cap. 11.
De locis qui sunt à decimis liberi.
Cap. 13.
Decimae praediales & personales quomodo sol­vendae.
Cap. 14.
Solvendas esse decimas personales.
Cap. 15.
Proprietarii quomodo decimas solvent.
Cap. 16.
Decimas utriusque generis solvendas esse, sc▪ both praediall and personall, if they arise due from the same man.
[Page 146] Cap. 17.
Causa decimarum inter ipsos ministros non pro­gredietur.
Cap. 18.
Consuetudo non solvendi decimas invalida sit.

It might have been convenient to have represented here a full transcription of these things; but there is intimation where they may be had for use, which may be enough, where brevity is studied. These Provisions of a Law shew clearly what the state then meant, as to Reformation, and even in this particular (if the purpose of the statute had been obtain­ed for abolishing the old Canons,) and how inviolable the right of Tythes should have been Then by their profound wisdome and discreet piety, which is also better seen by ac­count from these publick consultations then any private infor­mations. The results they were of a severe and searching re­formation, wherein as many stones had been moved (hoping thereby to settle others) as in any tumbling Age; and for the distressed Church what men durst do, if it had been jud­ged convenient, needs no other demonstration then what was done: But profound wisdome joyned with much piety, and a conscionable regard (proceeding in the fear of God) not to destroy what they meant to reform, or to purge out cor­rupt humours to the death of the patient, made them soberly carefull we see, and tenderly jealous not to meddle too far here, and for fear of darkness over all discreetly advised to let none of the oyle be medled with that kept the Parish Lamp burning, but rather gave hope of adding more where need was, (with encouragement to bring it in,) setting open a door to let in other supplies of needfull expence for these Lamps dispersed all abroad, if God should so move the hearts of those that loved the Tabernacle and the light thereof, to bring any offering; To strip all having been a thought of such horrid injustice and barbarous impiety, joyned with Impro­vidence (as to Religion) and imprudence into the bargain, that in likelihood truth might have been in danger of perish­ing from the earth by this time, and according to ordinary dispensations of Providence, we have now had little enough of Law or Gospel to take up consultations for the maintenance [Page 147] of, by that the Bible might have been near a stranger, if this had prevailed: But into their soft and tender bosomes, by the Grace of God, such thoughts had not leave and power to enter.

Why the tree thus planted hath not been known to bear fruit, or this new body thus framed, not received to be pra­ctised by, is, I said, hard to guess; the best reason I can think of is for want of Parliamentary allowance and subsequent con­firmation, for nought else see I wanting: yet as strange that what a Parliament had appointed to be done, and being done, and accordingly, should not have therewith what strength it could give. But so it has been, a dead letter hitherto, one­ly living in the good wishes of knowing good men, that it were quickned to full life, and the last Ecclesiasticall piece (I call it so in regard of the Materia prima, out of which it was made, the end whereat it aimed, the things it directs about, and its distinct standing off from the more common or secular,) that, of this kinde, our Common-wealth hath af­forded: Not unfitly reduced to this head of Ecclesiastick, whose proceedings have been such by vertue of due power throughout this business, that it needs no protection of Hy­perbole to excuse that all have either liked or willed; Kings, States, Parliaments, Judges, Lord, Laws, not spa­ring their vote of approbation, (to this particular still I mean) and all that have, have looked on either to allow or confirm. With this one intimation more I close up the point, that wheras this new body is not yet it seems authorised perfectly, till it shal be, All the old (including those also I made use of be­fore) are in force by a concluding Proviso of that first sta­tute (25 Hen. 8. 19.) where the whole business was started. The words are these: Provided also, that such Canons, Constitutions, Ordinances, and Synodals Provincial, being already made, which be not contrariant nor repug­nant to the Lawes, Statutes, and Customes of this Realm, nor to the damage or hurt of the Kings Preroga­tive Royal, shall now still be used and executed, as they were afore the making of this Act till such time as they be viewed, searched, or otherwise ordered and determined [Page 148] of by the said thirty two persons, or the more part of them ac­cording to the tenour, form, and effect of this present Act. But this not yet done, and therefore all the former Canons yet of force till, &c. and that by this Authority.

CHAP. XXI.

AND hitherto then upon the proper Stage: Let us next look upon the lookers on, and see whether the Neighbour secular powers have ei­ther not looked this way, or said nothing, or not in allowance of what there: The Church impowered as before, hath acted as hath been seen, to a full and fast determination of Right according to what she had in Commission, (or if she exceeded or went too far, was checked, as hath been shewed also:) But now hath the secular state added no collaterall strength, to connive at least, and more, at what hath beene there done? Surely so: As they have done their own business, Hers also having been taken in by the by, sometimes in direct assertion, oftner by glance and occasionall reflexe, but by supposition constantly ever; That supposition also often expressed, as uses to be in collaterall, not purposed mention of things, but never but understood and meant, as may be known by the evidence of things, as they have been done, and are left remembred; Their verySub factis autem moraliter veniunt & non facta considerata cum debitis cir­cumstantiis. Sic qui sciens & prae­s [...]ns tacet consentire vide [...]ur, nisi circumstantiae o­stendant quo mi­nus loquatur, me­tu eum vel alio casu impediri. Grot. de Iure Bell. l. 2. c. 4. sect. 5. silence (if nought else were) implying consent, and suffering the Ec­clesiasticall to continue medling with things of Temporall worth, and not forbidding, being strong evidence that they did allow. Sometimes indeed the transgression of limits hath been questioned, and this the true ground of All Pro­hibitions, [Page 149] when the Church would meddle of things of Regulariter verum est, quod judex Clericus cognitionem non ha­bet de Laico feodo alicujus. Bra­cton de Except. cap. 12. sect. 3▪ Rex illis Iudicibus Ecclesiasticis salutem. Prohibeo vobis ne teneatis Placitum in Curia Christianitatis quod est inter N & R: de Laico Feodo praedicti R. unde ipse que­ritur quod N. eum trahit in placi­tum in Curia Christianitatis coram vobis, quia placitum illud spectat ad Coronam & dignitatem meam. Glanvill lib. 12 cap. 21. & vid cap. Sequ. Bracton de Excep. cap. 3. & 4. vet. tot. Flet. lib. 6. cap. 37. sect. 5. & alibi pasum. lay fee, as the general word was, de re­bus tangentibus Coronam & dignitatem no­stram, for then the King would forbid that extravagancy, and stop the proceeding, as rea­son he should: But if keeping the due bounds, and not going besides the nature of allowed businesses, in spiritualibus & annexis; Now the Jurisdiction it self was never questioned, but things reputed immoveably firm that had their determination here, and the watchfull eye of a jealous neighbour either spied no­thing, or said nothing, (and in that much:) or if any thing, by insinuation, All was well; Hucusque, and contentment there should be no Prohibition.

But to come to some particulars, having secular and more immediate Royall influence, (in giving of which I doubt not but the performance of promise shall farre exceed the measure of my undertaking, or reasonable expectation, all things considered, and that the proper Repository of such things from their nature is elsewhere:) and I begin with the great Charter, one of the most Authoritative Instruments, and solemn sealed and proclaimed deeds and Laws that our State has, or the Lawyers themselves know where to seek for. The beginning thereof is this, Edward by the Grace of God King of England, &c. We have seen the Charter of the Lord Henry, sometime K. of England, our Father, of the Liberties of England in these words: Henry, &c. which we confirm.)

Chap. 1. First, we have granted to God, and by our present Charter have confirmed for us and our heires for ever, that the Church of England shall be frée, and shall have all her whole Rights, and Liberties inviolable. We have granted also, and given to all the Frée-men of our Realme, for us and our heirs for ever, these Liberties, &c.’

This is a little more emphaticall in the Latine, which for the better countenancing both of the testimony and the thing, [Page 150] I choose to represent from a fair Manuscript in the publick S 1. 8. Iur. Library of Oxford, where thus: Imprimis concessimus Deo, & hac praesenti Carta confirmavimus pro nobis & haeredibus nostris imperpetuum; quòd Ecclesiae Anglica­na liberae sit, & habeat That is, That all Ecclesiasticall persons shall enjoy all their lawfull Iurisdictions, and other their rights wholly without any diminution or sub­traction whatsoe­ver; Cook Instit. 2 pa 3. Jura sua integra, & lib [...]rta­tes suas illaesas. Concessimus etiam omnibus liberis homini­bus, &c. This is that Charter in the ninth Chapter whereof is confirmed the Charter of the City of London; in the four­teenth, That none shall be amerced unreasonably, but salvo contenemento, as he may be able to bear; in the twen­ty ninth, That no man shall be outed of his Frée-hold but by course of Law; (so much stood upon formerly, lately, and justly, and ever to be stood upon:) Every line whereof might have been written with some of the subjects bloud it cost; and in answerable price of worth containeth some piece or other of a firm wall to keep out Invasion, and hindering will and power gotten strong from entring upon and trampling downe the peoples Libertie; Wherein note two things granted to the Church, sc. That she should have all her 1. Rights, 2. Liberties: Those Rights, Intire: Those Liber­ties, Inviolable. What were first her Rights?The Councel of Aenham had fly­led them before Deo debita Iura. cap. 1. in Spelm. Concil. pag. 517. and K Knout likewise in his Laws, cap. 8. in Lambard. Archai. pa. 101. And be­fore either, K. Al­freds League with the Danes: Dei Rectitudines. Spelm. pa. 377. The whole face and condition of things represents it self such, that if any thing were, These were now Rights. Tythes, no question: Even then: generally due, and universally paid, and so for a long time had been: There needed no more then, or the Ages before, but to prove the land in the Parish of Dale, and the Tythes were cast upon the Church of Dale without any Evasion; And this so true and known, that there is none from the information before or other acquain­tance with the state of things as they were, truly informed, but must grant as much as I say without haesitation: And these rights were also granted Intire. Next, what were her Liberties? A volumne were here little enough, and I had once thought of laying together Many. But to our present purpose let a few Acts of Parliament expound what one pri­viledge at least was. In 18 Edw. 3. there is a statute for Pulton p. 143 the Clergy, and it was granted in regard of a Triennial disme given that Martiall Prince to further him in his Wars for France. In the sixth Chapter, whereof is mention of some Justicers appointed to the impeachment of Ecclesiasti­call [Page 151] Jurisdiction, (ofThe know­ledge of all cau­ses testamentary, causes of matri­mony and divor­ces, rights of Tythes, Oblati­ons, and obven­tions by the goodness of Prin­ces of this Realm, and by the Laws and Customes of the same, apper­taineth to the Spiritual Iuris­diction of this Realm, &c. Sta­tut. 24 Hen. 8. [...]2. Tythes among other things, why may we not well understand?) and is against the Franchise, this Statute says, of the Charter. Let the words speak their own sense. Item, Whereas Commissions be newly made to divers Justices that they shall make inquiries upon Judges of holy Church, whether they have made just pro­cesse or excessive in causes testamentarie and other (causes decimall, as notoriouslie doe belong hither as testamentarie, a hundred proofs are for it) which (yet) notoriouslie per­taineth to the cognizance of holy Church, the said Justices have inquired and caused to bee indicted Judges of holy Church; in blemishing of the Franchise of holy Church, that such Commission be repealed, &c. See here what Fran­chise is in part, sc. to have Ecclesiastical Jurisdiction free, pro­ved by that to disturb it is a breach or blemish of the Fran­chise. Next take another gloss in the plain text of 1 Rich. 13. whereId. pa. 200. The Prelates and Clergy of this Realm do greatly complain them for that the people of holy Church, pursuing That this ap­prehension may not seem a mi­stake, this very Chapter I finde alledged hereto­fore to prove that the proper scene of trial of tythes is the Ecclesiastical Court: by M. Fulbe [...]k in his parallel, par. 2. Dial. 1. sol. 6. in the Spirituall Court for their Tythes (there is the Jurisdiction and this particular asserted) and their other things which of right ought, (there's more then possession, Due,) and of old times were wont to pertain to the same Spiritual Court, (there's continuance of time, or prescription) and that the Judges of holy Church having cognizance in such causes, & other persons thereof medling according to the Law, be maliciouslie and unduly for this cause indicted imprisoned, and by secular power horriblie oppressed &c. against the Liberties and Franchises of ho­lie Church: Wherefore it is assented that all such Obli­gations shall be of no value, &c. Here another statute in­terprets what Liberty and Franchise is by that the clogging of Ecclesiasticall Jurisdiction, in this matter of Tythes was a breach of that Franchise; and so after when the Cistertians endeavoured to exempt their Formours Lands as well as their own from paying Tythes, that due power could not fetch them in, this was again against the Franchise, as Alledged hereafter. complained in Parliament, 2 Hen. 4. 4. And lastly, aThe Annals of Burton cited by M Selden of Tythes, cha 14. pa. 419. National Councel represented as one of their grievances at [Page 152] London, 21 Hen. 3. The over-lavish use of the Indicavit, whereby the Kings Judges would first determine what tythes were due, to what Church, and this was in Regno Angliae in praejudicium libertatis Ecclesiasticae. Which things may together shew fully enough, what the breach of Franchise was, and by consequent what the Franchise it self, by the best which is publick interpretation: Whence also likeliest this was the meaning of the Grant: That 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.

[Page 153] 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 mostThe 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 hadThe 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 R [...]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 diversSc. 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 wereCook 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, and25 Edw. 1. c. 1 after renewed under the same Signature again, as well to the Justices of the Forest as to [Page 154] the Sheriffs and other publik Officers, and to all the Cities of the Land, with Writs to have them published, and order to 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 CourtIb. 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 theAuthoritate 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 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, andArtic. Super Chart cap. 1 28 Edw. 1. Proclamation twice as often as that made by the Sheriffe in his County-Court (sc. after Michaelmas, Christmas, Easter, and Midsummer,) Three substantiall men being then chosen to be Justices by vertue of that Commission to inquire of transgressions, and meerly by vertue of that Writ without any other power, they were such Justices. 'Tis, in short,Iam aderat annus salutis humanae 1226, & nonus cum regnare coepit Henricus, quo anno Concilium Principum est habi [...]um: Eo in Concilio de Re is pariter [...] principum sententia, non parum multa privilegis ordan [...] sacerdotal, atque reliquo populo irrogata sunt, multaeque leges latae, quas Reges qui secut [...] sunt, Ita approbârunt, ut inde bona pars juris collecta sit, quemadmodum ex­tat in co libello cujus inscriptio est, Magna Charta, & altera, vulgò de Foresta, id est, de ferarum faltibus. Po yd. Virg. Angl. Hist. lib. 16. pa 292. It was for the west part declaratory of the principall grounds of the Fundamental Laws of England, and for the residue it is additional to supply some defects of the Common Law, &c Cook Instit 2. in Prooem. pag. 2. So of King Iohns Charter; the Barons reached him,—Schedulam quae ex parte maxima le [...]es antiquas, & regni consuetudines continebat. Matth. Par. ad an. 1215. pa. 244. And see R. Twisden, Praefat ad Leg. Guil 1. & Hen. 1. pa. 157. the cream and quin­tessence of the whole bulk of the Politicks of our Nation, the Charter of the peoples right, the hedge of their property, the fence of their liberty, the strength of their security, and the chief bottome of our Laws: Which in the dawning of our late troubles about twenty years since, had the violation thereof, all know, looked upon with so jealous an eye, that [Page 155] nothing more egged the people to inforce the Petition of Right (to regain the breaches made whereinto was a part of that Petition,) then a fear they had wrong done them in this their chiefest and choicest love, which let be but read, and it alone will shew what estimation quiet subjects had there­of in those calm times, and what advantage has been made of both since, all know. A Volumne were here again too little: and yet the beginning was plainly, fully, and home for these Rights among other: And the Concession of them, which is more, made over, as 'twere, into another world, into the When anything is granted for God, it is deemed in law to be granted to God; and whatsoe­ver is granted to his Church for hi [...] ho­nour, & the main­tenance of his reli­gion and service, is granted for and to God Quod da­tum est Ecclesiae datum est Deo. Cook Instit. 2. pa. 2 upon this Char­ter. Hands of God, that man should not dare recal or lay his hand upon that was so, and To God was Gi­ven. Concessimus Deo & hac praesenti Charta nostra confir­mavimus pro nobis, &c. quod Ecclesia, &c. Whereas the peoples Liberties were given only into their Own hands. What will, if this will not, preserve them intire as they were given? What will render them inviolable, if not the sacred Omnipo­tent hand of theSemel Deo dicatum non est ad usus humanos ulterius transfe­rendum. Reg. Iur. 51. most High God, to whose protection, power, and safeguard, as well as honour and glory, they were by our Ancestours (who thought themselves awake in the business of the Charter) commended? and they thought to equall it with the highest offence, that of the Gyants hereto­fore making attempts against Heaven by their daring presum­ption, if any should at any time presume to rob them from That Hand to Which they were, and So given. Many yet al­ledge and take a part: The ninth chap. inWhose old li­berties and customs are there confirm­ed: and likewise of all other Cities, Towns, Boroughs, &c. behalf of the City of Lond [...]n: the twenty ninth for a Legall triall of Tythes; and the Petition of Right joyned thereto for liber­ty and property; that none be outed of his Free-hold but by due process of Law, and many exclamations, bitter sufferings, hard imprisonments have been, perhaps ought to be rather then lose their childes portion, in that great Charter, the in­riching due Birth-right of every Englishman. But is not one mans Right as good as anothers? Does not any injury sit to as much discontent, irksomness and wrong upon the galled back of one sort of sensible persons, as it doth of another? Or, may not I cry for my Childes part as well as my Brother? The despised Minister of Jesus Christ, Can he have no wrong? [Page 156] Or has he no right? Or is not he perhaps a Christian, an Eng­lish man, a Man, as well as all his kindred, that any private spleen, envy, malice, greedy covetousnesse, self-love, or other wrongful and injurious passion should work in the bosom of his fellow-Christian and Neighbour (who yet loves His Own well enough, and can be content to stretch all his powers to make the most and best of it) to wish Him out of His, or en­deavour, if it be in his power, to put him out, Quarrelling with him to rest contented to see his name strucken out of the Common Fathers Will; and he shall be yet in more danger, if he strive or cry, or do any thing but sit still and submit, and be quiet while his part of the Charter is taken from him! May not this very same evidence, if the poor Preacher and Servant of Jesus Christ, who taketh cure of souls for his Master, feed­ing the flock of God committed to his charge, not by constraint, but, willingly, not for filthy lucre, but of a ready minde, have any part therein, be as honesty, reasonably, piously, safely, and Christian or English man-like pressed home, and conten­ded for earnestly in his behalf, as for a mans right, a mans estate, a mans property? Perhaps a single, simple, meer na­tural man, that as such, by any thing he possesses is bound to little, that he knows of, save to make himself ready, eat and drink, keep himself quiet or merry, expect the quarter or half years day, tell his rent when it comes in, and in the mean while is at leisure for Any thing: To sport and play, game and riot, perhaps forRom 13. 13. gluttony and drunkennesse, chambering and wantonnesse, lust and envying; and other such thingsCol. 3. 6. for which the wrath of God is wont to come upon the children of disobedience. For such are known to live among us and enjoy their dear Own without disturbance, (which is worse, in Christian Communion too,) and relin­quishing neither hopes of Law, nor Gospel, (not our Law I mean,) to see the streams of Pactolus flow, their heaps of wealth come tumbling in on every side, which they abuse (God forgive them) to be the fewel of their sins, to keep their vices and iniquities not onely burning, but flaming in the sight of the world,1 Pet. 4. 3, 4. Working the will of the Gentiles, and walk­ing in all lasciviousness, lusts, excess of wine, revellings, [Page 157] banquettings and abominable idolatries, wondring that others (who by the Grace of God have escaped the pollutions that are in the world through these lusts, and old things are past away with them, all things are become new) run not with them, as formerly, into the same excess of riot, speaking evill of them for it, as the Apostle says: And shall these I say, do thus, and no man molest them, or trouble them, or question (as God forbid they should) for craving, having, and mis­spending what they have Civil right to, while theMatth 20. 8. chap. 10. 10. Luk. 10. 7. 1 Tim. 5 18 La­bourer is kept short of his hire, 1 Cor. 9. [...]. 1 Tim. 5. 18. Deut. 25 4. The mouth of the Oxe muzzled that treadeth the mowe, and kept short of his due allowance; Gods Minister onely is pittanced of what may keep him alive and honest together, and they that take themselves for good men, doubt whether they may subtract from him his part of the Charter. He is, I aver, He is one of the most Necessary men in his Parish, for discharge of duty he would soonest be missed of All, if he should be absent; As great ex­pectation is of Him while he is there, and there is neither Free-holder nor Copy-holder, Yeoman, Gentleman, or scarce Any other, who in sickness, absence, exclusion, or so, would be more missed of the Neighbour-hood, of any of whom they expect no more then what duly they have of him, and more: And what wisdom or equity were it then to chuse out Him to be robbed at the root, despoiled of his right, shrunk in those sinews must give all his designs or god­ly good works, life, power and motion in this world, and de­sire his means of living to be withholden from him due by Law, While other that would very likely do less good with it, certainly have less duty expected of them for it, have enough and to spare, yea, Fruges consumere nati, men born onely to live and spend, have plenty, that nor own, nor pretend to own any necessary, fitting, honest, manly imployment to the furthering of that common good, whereof they reap the chiefest benefit, But (like drones) suck the sweet, and make sport with the sweat of other mens browes, wearing Mannours on their backs, and pouring Farms down their throats, swimming in golden Lard up to the Chin, as he said, live at ease in Sion, neither Fish nor Flesh, having nothing of [Page 158] Human or Christian, Lay or Ecclesiastical, Magistrate or Of­ficer, publick or private, charged or they think fit should be charged on their account to God or man, Church or State. I speak not this, that they should be deprived of anything is Theirs, or to stir up discontented fault-finders against them, which I assure my self cannot be attempted without sedition in the State, or sin to their souls who should be so trouble­some; Let every Swine have his own dunghil, every man have his Own, as well as do Mat. 20. 15. what he listeth therewith, as the Scripture says; if He mis-spend,Who art thou that judgest ano­ther mans servant? to his own Master he standeth or fal­leth. Rom. 14. 4. And, Why doest thou judge thy Brother? or, why doest thou set at nought thy Bro­ther? we shall all stand before the judgement seat of Christ. For it is written, As I live, saith the Lord, E­very knee shall bow to Me, and every tongue shall confe [...]s to God. So then every one of us shall gave ac­count of himself to God, ver. 10, 11, 12. God shall judge: But comparatively, If These, then Those, if They have, and none subtract or deny, how much less, or with equall ne­cessity, not from him that1 Cor. 15. 10. laboureth more abundantly then they all, as the Apostle speaketh; and in another place is1 Tim. 5. 17. worthy of double honour, labouring still in the word and doctrine. God forbid any should have wrong, or not their right, be it much or little, and Who or Whatsoever: But is this sort of men Onely inconsiderable, to be shut out of door when right is distributing, and they alone are Chidden if they ask their Due, or expect their Right from the Petition of Right, and the every man else inriching Charter: Heu quòd literulas stulti docuêre parentes! Nay, will they not blame their calling that deprives them of common equity, and shuts them out from the open Hall of Justice, and they may not claim their due in Every ones Inheritance? It grieves me to consider, and I wonder it should be so: The same men that urge those publick Concessions so earnestly, and would suffer more rather then lose any of their little shares in this universal Grant, yet cry out against Tythes without mo­deration or measure, take on and complain as of a burden insupportable, and when their own parts are taken out, They may not be restrained of their liberty or abridged of their property, (God forbid they should;) Other mens right or liberties, they may be stamped under feet, their Dues are in­considerable, no dear Own by their Property. I hope and believe they have been hitherto but mistaken in judgement, and thinking Tythes to be no other but the impositions of some later statutes, or the usurpations of the Consistory; [Page 159] no wonder or blame they would have tyranny abolished, and exactions removed, that every man may enjoy his dear Own, and no man usurp upon his neighbour in any the smallest matter: But would they consider what deep and settled, and al over-spread radication these claims have in all the Civil laws of the land; How the Parliament allowes them, the Peti­tion of Right involves them, the Canon gave them, the Char­ter confirmed them, the Common Law set them up; and all the Politicks of the Nation combine and conjoyn their strength for their legal Dueness, as of Any thing: Could they look (past some single Order or Act,) into the depth of that diffused and far-spreading Rule and Giver of all Right with us, the Soveraign Law, and there finde that what gives all men right in this Nation, gives here with as un­doubted assurance, and a manifold accumulation of more strength and evidence, They would then, I trust, change their notes, or as the word uses to be, sing us another song; They would not betray their discretion to such necessary disgrace as must follow upon their destroying with one hand, what but now they had set up with the other, nor would they take away wth their left what they gave with their right; but Right, and Charter, and Liberty, and Property, should be all of a sort, and one mans claim of any thing from or by any of Them as good as anothers. Could they espy (that which is) an involved title in these publick evidences they contend for, and these Dues to be as certainly implied in the Charter (as they are) as their own inheritances; They would no doubt soon change their English mindes in a contrary way to the new-instructedActs 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 theirThese 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, [Page 160] 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 [Page 161] the true light, shined to his soul with awfull beams, he fell down, and recanted, and repented hisI 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 haveGal. 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? [Page 162] 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 in theIn Biblioth. Bodl. Oxon. S. 1. 8. Iur. Ms. before men­tioned, and set before the statute De Anno Bissextili: which being referred to 21 Hen. 3. I think may well be placed here­abouts: thePulton pa. 109. print has it of uncertain time, andInstir. 2. pa. 600. Sir Edw. Cook as about the beginning of Edw. 1. I believe it to be that with Articuli Cleri, Circumspectè agatis, &c. re­ferred to in the end of the statute of 2 Edw. 6. 13. though [Page 163] Ib. Pa. 663. others point it to, Probibitio formata super Articulis Cleri: Well, Howsoever: Incipit Regia Probibitio. Sub qua forma impetrant layci Prohibitionem in genere super decimis, oblationibus, obventionibus, Mortuariis, &c. Re­spondit Dominus Rex ad istos articulos, quod in decimis, ob­lationibus, obventionibus, &c. quando agitur ut praedictum est, prohibitioni non est locus. None to be granted in case of Tythes, Oblations, Obventions, &c. and then is my drift secure: 'Tis known what would be the issue of other proceedings. Indeed it follows, If by sale the things change nature, becoming temporal, or the quantity may justly oc­casion an Indicavit, then, &c. But in the ordinary course, none.

In18 Edw. Puiton pa. 70. Edw. 1. time we have the noted Statute of Cir­cumspectè agatis: made, it seems, to restrain and keep with­in due banks some powers granted a little before to the secu­lar Judges to curb in his Jurisdiction the Bishop of Norwich: (whosePut but for an example: The thing extendeth to all the Bishops of the Realm Co. Inst. 2. pa 487 name yet might be but as A. B. an Individuum vagum, appliable to all who had their due liberty in danger of being fettered, and indeed to themRex enim misit certos Iu­sticiarios suos ad procedendum sub certa forma con­tra Episcopum Norwicensem & alios de cle [...]o sibi adhaerentes, qui­bus postea Rex scripsit ut hic ha­betur Gloss. Nor­wicensem. Lynde [...] wood. de for [...] compet. 1. Cir­cumspectè. severally it was directed:) The King (therein) to his Judges sendeth thus greeting. Deal circumspectly in all matters concerning the Bishop of Norwich, and his Clergie, not punishing them if they hold plea in Court-Christian of such things as be meerly spiritual; that is to wit, of penance, &c. Item, If a Parson demand of his Parishioners oblations or tythes due and accustomed, or if any Parson do sue against ano­ther Parson for tythes greater or smaller, so that the fourth part of the value of the Benefice be not demanded. This is so plain, nothing can be more: though the secular Judge might send his hook to fetch causes to his Court in some doubtfull cases, yet for things meerly spirituall, or for tythes by name, This Law sayth, He may not. Which for better preservation Ibid. Lindewood has also in the Churches behalf taken into his Provincials.

In the same Edw. 1. time was granted the Statute of Con­sultation: It hath not, I confess, express mention of tythes by name, but the Jurisdiction, (and that enough) allowed: [Page 164] for it being granted, which cannot be denyed, from other assurances, both that tythes were due, and This would bring them in, in the grant hereof intire, is enough, the rest will follow. It seems some there were would then obtain a Pro­hibition to stop the wheels should properly move to Justice in this case, and when the business came to the Lay Judge, go no farther: So the Plaintiffe (was delayed, yea, denyed right, and almost wrong, for he could have no sentence any way, for remedy whereof, it was ordered: That24 Edw. 1. Anno Dom 1296 id. pa. 75. Whereas Ec­clesiastical Judges had often surceased, &c. by vertue of Pro­hibition, whereupon nothing done in either Court, Our Lord the King willeth and commandeth, that where so, the Chancellour or Chief Justice upon sight of the Libel upon instance of the Plaintiffe (if they can see that the case can­not be redressed by any Writ out of the Chancery, but that the Spiritual Court ought to determine the matters) shall write to the Ecclesiastical Judges before whom the cause was first moved, that they proceed therein, notwithstanding the Kings Prohibition. Plain, that in some casesAnd this is the very reason why the 12 Chap. of 32 Hen. 8. was made law, because Lay men that had use of all other Co [...]rts, yet could not come at their d [...] tythes now settled upon them by any of those Co [...]rts, which made it necessary they should be in­abled, to sue in the Court Christian, where onely these d [...]es were tryed, and that was th [...] thing th [...]e done, and the new in­dul [...]enc [...] there granted Them, as appeareth by the Preface the o­ther Courts could afford no Justice, and therefore of necessi­ty must be a remission hither; so appropriate was the remedy and indeed cognizance and rule of Justice to this Court, that all the rest could not so much as hear; and that righteousness might not fail from the Earth, hither loyall subjects must onely come for it. To some time of the same Kings Reign is yet farther ascribedPalton, pa. 91. this grant, that, (WhereIb cap. 1. No Tallage or aid shal be levied withon consent of Parliament, Nor Ib. ca. 2. any thing purvayed to the Kings use without the owners consent; There) We will and grant for us and our heirs, that all Clerks and Lay-men of our Realm shall have their Laws, Liberties, and free Custo nes as largely and wholly as they have used to have the same at any time when they had them best And if any Statutes have been made by us or our Ancestors, or any Custo nes brought in contrary to them, or any manner. Article con­tained in this present Charter, We will and grant that such manner of Statutes and Customs shal be void and frustrate forevermore. WithIb. cault. order to have it read every year [Page 165] twice in every Cathedrall, and a curse upon the breakers. I infer: If, 1. All Laws, Liberties, and Customes were here granted. 2. To Clerks as well as Lay-men. 3. Of the lar­gest size or use. 4. In despite of any Law to the contrary; Then, 1. here be tythes, which were then due by Law: 2. the Jurisdiction of them, a Liberty, which would bring them in; 3. And so they were both due and must be paid, (ta­king in consideration of the Then state of things,) by vertue of the Law, and by vertue of this Law, for that herein were granted all Laws and Liberties. Remove to Edw. 2. and there we finde those are styled9 Edw. 2. id. pa 98. Articuli Cleri, and so not like to afford nothing; but Englished, ArticlesIn the old edi­tion of 1543. for the Clergy, and so like to afford something for them. The first thus proposes and resolves: Whereas Lay-men doe purchase Prohibitions generally upon tythes obventions, ob­lations, mortuaries, &c. The King doth answer, that in tythes, oblations, obventions, and mortuaries (when they are propounded under these names) the Kings Prohibition shal hold no place, although for the long withholding the same, the monie may be estèemed at a sum certain. But if a Clerk sell his tythes gathered into his barn for monie, &c. then o­therwise. And if the Kings Prohibition should not lay any impediment, but things must be tried by the Canons, we know and are assured whether tended, and what that meant. But more particularly here observe, 1. That the power which is known would give them in, is here, without dislike mentio­ned. 2. Plainly allowed. 3. As to tythes by name. 4. Stren­gthened; By this that as in Circumspectè agatis no distur­bance should be offered by the secular Judge impeading to proceed in their own way. 5. And all this by Parliament, Sending the trial where beforehand it was known how the business would go; And then, as if the supream power send a criminall offendor to the Bar of Criminals, knowing how the case will there go, looking on, permitting, and acquiescing in the sentence there to follow upon that sending; They more then seem to confirm and allow, whatever prove the issue; such interpretation may reasonably be made here of the remission of these cases, and the temporal power could not but be [Page 166] thought to own the event, and what was done whether them­selves sent for trial. The provisions were as strict as well they could to hinder extravagancy, for, as treading in the steps of the Regia Prohibitio before, if once the thing were never so lit­tle converted to seem temporal, Away with it presently, Grant it no longer protection here, but allow suit for it wheresoe­ver; But if it remained, spirituale vel spirituali annexum, it self, As reason would and the nature of the thing required; the King says, the Law says, the Parliament says, and all, let the Church have her due; If it be to try these things and bring them home to her own house, let no envious in­croachment grudge her right, no not though by continu­ance of time the things have run so long, as they may seem to have degenerated into a Lay-commodity. Chap. 2. Also if debate arise upon the right of Patronage, and the Quanti­tie of the tythes do come unto the fourth part of the goods of the Church, the Kings Prohibition shall hold place, if that cause come before a Judge Spiritual: Insinuating, (and the practise hath been accordingly) that if less then a fourth part, (or the Patron of both the same, for so it was,) it must be tried as before. And so chap. 5. where no Prohibition is to be had (as in the title) if tythe be demanded of a new Mill; And the text: Also if any do erect in his ground a mill of new, and, after the Parson of the same place demandeth tythe for the same the Kings Prohibition doth issue, &c. the Answer: In such case the Kings Writ of Prohibi­tion was never yet granted by the Kings consent, nor ne­ver shall, which hath decreed that it shall not hereafter lie in such cases. And then let the Parson alone: His strength is, those Canons will do execution enough; De proventibus autē Molendinorū volumus quod decimae fideliter & integre solvantur, hadConstit. pro­vincial. tit. de decimis. cap. Quon ā propter. Also, Decima &c. Molend no [...]um, Venationum, Negotiarionum, &c. tit. eod cap. Sancta Eccle­sia. De prato, de aqu [...]s, & molendinis L. Edovardi Confess cap. 8. cited before. De molendi­nis, & piscari s, & [...]oenis. Consti [...]ut. cujusdam Episcopi, about Hen. 3. time, alledged by M. Selden, pa. 231. D [...] proventibus Molendinorum, piscariarum, foeno, &c. Decret. Gregor. tit. de decimis ca. per­venit. Of those forced by windes as well as water. Mandamus quatenus. H. Militem, ad solutionem de­cimarum de h [...]s quae de molendino ad ventum proven unt, sine diminutiore aliqua compeliatis, tit. e [...]d cap. 23. Ex transmissa. And, as of Mercha dise or praedial [...], without dimin [...]tion of expence. tit eod. cap. 28 Pastoralis officii. Rob. Winchelsee said before, then in [Page 167] force. Integrè, that is without diminution, the tenth dish, not the tenth penny, saithSc. sine di­minutione, sic ut solvatur deci­ma proventuum verè sicut proven­tus accidunt, viz. decima mensu [...]a quorumcunque granorum molitorum ad commodum domini molendini vel molendinarti pertincnti­um; & sic non sufficit solvere decimam p [...]out Molendinum transit ad firmam, quoniam in firma de verisimili non est verus valor, cum firmarius ultra firmam aliquid speret lucrari. Gloss. Integrè cap. Q [...]ioniam propter. Lindewood: And m [...]morand. these (Articuli Clori) and Circumspectè agatis, and some other had a clause to keep them inviolable by the late Parlia­ment determination of 2 Edw. 6. 13. in the end.

Follows next Edw. 3. and here we have more: In every K. Raign almost somewhat, if but for recognition, and to shew that that peece agreed with the whole. As first, There had been over-lookers, as before, of the Jurisdiction Christian, who disturbed, and discouraged, (but they did but over-look and hinder, not absolutely take away; the thing remained, and hence proved.) Also some that pulled away a branch or bough rather from the tree, hindering by Scire facias from the Chancery the triall of Dismes from its proper Court: The King in the Statute for the Clergy before mentioned, gives remedy for both in the two last Chapters of that Act. Chap.18 Edw. 3. 6. Item, Whereas Commissions be newly made to divers Justices, that they shall make inquiry upon Judges of holy Church, &c. But the whole was transcribed before, whereto I therefore remit. Mark chiefly that clause, that Causes testamentarie and others, did notoriouslie belong to the Cognizance of Holy Church, and the King said so. Not Rob. Winchelsee, or Jo. Stratforth, or any of the past or then present Church-Ministers, who did no more then they had power; but the King: Nor did they incroach, saith He; It was rather Then an incroachment upon them to interpose and trouble the orderly motion of their wheels tending to a just administration of things and giving every man his due in a way allowed by all the power that then was above, and publick. Chap. 7. Item, Whereas Writs of Scire facias have béen granted to warn Prelates, religious, and other Clerks to answer Dismes in our Chancery, and to shew, if they have any thing, or can any thing say, wherefore [Page 168] such Dismes ought not to be restored to the said Deman­dants, and to answer as well to us, as to the parties of such Dismes: that such Writs from henceforth be not granted, and that the parties be dismissed from the secular Judges of such manner of pleas. Saving to us our right, such as we & our ancestors have had and were wont to have of reason. God forbid else, and that whether Supream or Temporal power should be abridged of its due by any dependant or in­feriour: for the Charet never moves so well as when every wheel keeps its proper place, and every power does its own work without any others troublesome let or interposition. A wen in the body, or any monstrous excrescence (besides that it deforms the whole) robs the other parts, and none is so much pleasured with what is superabundant, as the rest is displeasured by following necessary defect: The injury of a­ny member redounds to the prejudice of the whole body; And the Common-wealth flourisheth so prosperously never, as when every limbe acts for it selfe, every member does its own office, the head, foot, hand, eye or other part command­ing, obeying, ruling, or being ruled as it ought, and none usurps or launcheth out over-busily into that of cure which belongs in proper design to another. Here it was meant so: and therefore, Saving to the whether Supream or Temporal power, what did belong thereto, the appearance upon the Scire facias is discharged. Can any thing be more plain? And if such inquiries had been used to be made in the Court of Reli­gion (as this Statute implies) Then, and must be there, and were here sent thither by the Parliament, And They when things came thither, said the tenth sheaf, fleece, colt, or lamb was due. Can any thing be more certain then that it was so done even by their recognition, assent, and purposed appointment, and ought accordingly to be paid? Whosoe­ver did, had an unequall task to struggle against, the migh­ty Law, and Soveraign power that made Right, if he would go on yet waywardly to contend. The Law is, asHeb. 6. 16. Gods Word saith of an Oath) the end of all strife; sith then It said so, and in other matters it uses to make an end, being the bottome of Right, the highest appeal, and uttermost any o­ther [Page 169] men had to say for any thing, how vain must they be, who would contend, that were thus concluded before they began, and all-ruling oracles of Law rightly sought, and du­ly applyed, and discreetly drawn forth, had determined of before, The tenth was due, and must be parted with?

About three years before,15 Edw. 3. cap. 6. in this Kings Raign there was a repealed Session, part whereof is made to look this way: The words are these. Item, It is accorded that the Ministers of holy Church for monie taken for redemption of corporal pe­nance, nor for proof and account of Testaments, or for travail taken about the same, nor for solemnitie of marri­age, nor for other things touching the Jurisdiction of holy Church, shall not be impeached or arrested, nor driven to answer before the Kings Justices, nor other Ministers, but have Writs from the Chancery for discharge, &c. which I finde construed in favour of tythes:By Sir Tho. Ril­ley: in his view of the Laws, par 3. c. 2. sect. 1 pa. 143. But because it was re­pealed soon after, and doubtful when it was in being, the se­veral possible senses of the words leading the grantors minde to look (not improbably on either part) two ways; I pass it over, and come to the Statute of Sylva caedua, which was sure to the purpose, at least by consequent. It was made indeed against45 Edw. 3. c 5 some exactions of tythes, yet so as it implies for other; The by-blow sets up to rights what the direct had pulled down, and By saying Some should not be paid, The rest it should seem Should; For a Prohibition allowed to take place for trees of twenty years growth, and no more, seems to whisper and suggest that in others it shall not, or the rest is left to course of ordinary proceeding. The words were givenPa. 137. before, not needful to be repeated again, and the most of practise and the regulation of things has been, I beleeve accordingly. Laws are commonly like two-edged swords, they cut both ways: If they say This, they mean That; If they give the Negative, they imply the Affirmative; If one in prohibition, the other to permission; If they say, a thing shall be hindered, and so far, they imply farther hin­dering is not meant, but the thing as to the rest is left at li­berty. Forasmuch then as the Canon gave tythe of all (grow­ing and renewing) and the Statute, finding fault with some [Page 170] of the latitude, gave order to prohibit but of twenty years growth; the restraint of this size is implication that liberty is left to the rest, and the hindering but so far that in the rest was scope; Which being for the tenth Faggot, Heap, or Cord, the Jurisdiction thereof, yea the Law thereof, and thereby Right is not a little hereby, nor obscurely furthe­red and ratified. Or otherwise observe, as before, two­things: First, Lex terrae did here interpose, and when any thing passed the Synod, the State could not brook, This 's power controuled That 's Canons, which hindred the Right of Tythes effectuall from going any farther then the Crown Law would allow. Secondly, but in that which was Sylva caedua properly, or Copp [...]ce-wood, this interpo­sition was not, but the other power left at liberty (known to resolve as before) Therefore there was still a connivence, and so far consent and approbation, and so this Law was first against Tythes, is secondly for them; at first hand against Some, at second for Others, And affording but a prohibi­tion for twenty years growth, leaves, yea wils, (upon the matter) the rest, and less to be paid.

Touching which Prohibitions one thing more is in this 50 Edw. 3. 4. Kings Raign (from the Statute too, for still that is to me most authentique, and as a publick Act, more safe ground of opinions then any private thinkings, which I would make use of onely in defect of those) and it is against multiplying Prohibitions upon Prohibitions: Corrupt pra­ctise may after have prevailed, and by degrees it have been brought in, that aSo averred and complained in the articles exhibited to the Privy Councel, 3 Iaco­bi, in Mich. Ter. Object. 5 Cook Instit. 4. p. 603. succession to five or sixe genera­tions hath followed, the Libel remaining the same, but by a Law then it should not have been so, but one be all, and all but one: after that and consultation releasing, the Ec­clesiastical Judge was allowed to procèed notwithstanding any other. And this shews both there was need of a Pro­hibition to hinder, the Court might proceed without a Pro­hibition; And that a Prohibition should not prohibit after a Consultation, all to the strengthening of this jurisdiction, (which still strengthens this right and title:) and hitherward also tend many things in that statute as 'tis called, For the Clergy, Anno 25 Edw. 3.

[Page 171] Richard 2. was the next that sate in the Throne, whence at the instance and speciall request of the Commons he published sundry things in amendment and relief of the Realm, and a­mong them two in relief of the still oppressed as then thought and disturbed Ecclesiasticall Jurisdiction.1 R. 2. c. 15. The Pre­lates and Clergie of the Realme do greatly complain them of that Disturbance, in matter of Tithes, against the Fran­chise, &c. But the words hereof were givenPag. 151. before, there needs onely now to remember thence: 1. That Triall of the Rights of Tithes is there said to belong to the Church Court. 2. It was then so. 3. ItHow long? Sir Edward Cook looks back to some then late. [...]cts of State, as 18 Ed. 3. cap 7. Articuli Cleri. 9 Ed. 2. circumspectè a­gatis. in 13 of Ed. 1. &c. But the farthest of these was but within the compass of a Cen­tury toward the end of this yo [...]ng Kings great Grand­fathers dayes, and so far unlike [...]y and [...]nfit then to take the stile & date up­on them f [...]o [...] the gravity of a Par­liament, to have it said, Of old were wont to be: It was then scarce out of many mens memories, and if it had been within ken of any such apprehension, the plain intention of those sages would no do [...]bt have meas [...]red out their words by things, and set it upon its right bottom of something within view, which some of them had seen: to omit what shall be after said is fuller answer and plainer proof that in Hen 3. time, (and then likely by [...]s [...] and c [...]sto [...]e too) this discussion of Dues was made and acted here upon this Scene. had been so. 4. Of Right it Ought to be so. 5. To disturb was against the Franchise (al­lowed and ratified by the Charter) All which things are there plainly in a Parliament law acknowledged. It was no new Incroachment, but an allowed usage; It was no new Custome then sprung up, but [...] delivered from hand to hand through many Generations: It was not a senslesse Custome, getting head, tantùm non against reason andequity at first, but the sage and advised Law had thus at beginning stated, and till now declared and appointed: And maliciously and Unduly, 'tis said, (to note the Fountain whence that grave Assemblie thought those bitter Streams proceeding Malice and Wrong) men were indited for doing their then duty, as of Right they ought to do, and of old were wont to do: but to proceed; in the next Chapter is more.

Item, It is accorded, that at what time that any Person of holy Church be drawn in Plea in the Secular Court for his own Tithes taken by the name of Goods taken away, and he which is so drawn in Plea maketh an Exception, or alleadgeth that the substance and sute of the Businesse is onely 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 Cattall. Here was

  • [Page 172]1. Somewhat distinct from Lay Cattal, and to oppose thereto.
  • 2. Tithes due of Right, and that by Statute-testimony.
  • 3. Something to be done before the Secular Court can take notice when the subject is Tythes:
  • 4. The scope of all to hinder that Court.

For if the Land-owner might suppose them Lay; then as it was an offence for the Church-man to take them, so that offence must be examined in the proper Lay Consistory: but if they were Tythes taken away, (the Church-mans due Own) then elsewhere, (where it was known what would be said) and That seems forbidden, This furthered. The Goods must not be supposed Lay Cattall, They might be proved the Takers own Tythes, which must be done onely 'tis known where; And so the whole doubt of the Lists where the Controversie was to be tried, (which was the thing in questi­on) vanisheth. This I take to be the meaning, the words be­ing dark, and observe all along that Lindwoods Collection seems referred to as Text, and even the Secular Law relates still to those Rules (as approving) to try by them, whether this or That shall be taken for Tythes or not? So that inter­pretatively the very Canon (by approbation and allowance from abroad) is the Rule of some Civil Right immediate with us, and the Giver of some Title of Dominion, the Church by intimation and supposition of the Parliaments Civil Law.

Immediatly the next was Henry 4. of Lancaster, whose fa­therly care continued to keep together these Dues to the maintenance of Religion; and whereas some of the Order of Cisteaux had procured Bulls for the discharge not onely of the Land they used, (which wasDecr. Greg. t [...]t. de decimis. cap 10. ex parte tua. allowed and a singular Exemption) but of what theyLicet de be­nignita [...]e sedis Apostolicae sit vobis indultum, ut de laboribus, quos propriis ma­nibus vel [...]umpti­bus colitis, ne­min [...] decimas solvere teneami­ni: propter hoc tamen non est licitum vobis, decimas de terris vestri, subtrahere, quas aliis tra [...]itis ex­colendas. id. cap. sequ farmed out, which would not be allowed in manifest dis-agreement from the rest, against this it was ordered.2 H [...]n 4. cap 4. For as much as our Lord the King upon grievous Complaint made to him this Parliament, hath perceived that the Religious men of the Order of Ci­steaux in the Realm of England, have purchased certain Bulls, to be quit and discharged to pay the Tithes of their Lands, Tenements, and Possessions let to ferm or manu­red, [Page 173] or occupied by other persons, then by themselves, (for such discharge must be, or else all paid;) In great prejudice and derogation of the Libertie of holy Church, and of many Liege people of the Realm: our Lord the King willing thereunto to ordain Remedie, by the advice and assent of the Lords Spiritual and Temporal, and at the instance and re­quest of the said Commons hath ordained and stablished, that the Religious Persons of the Order of Cisteaux shall stand in the state that they were before the time of such Buls purchased: And that as well they of the said Order, as all other Religious and Seculars, of what estate and condition that they be, which do put the said Bulls in execu­tion, or from henceforth do purchase other such Bulls of new, or by colour of the same Bulls purchased or to be purchased, do take advantage in any manner, That Processe shall be made against them, and every of them by garnishment of two moneths by Writ of Praemunire facias. And if they make default or be attainted, then they shall incur the pains and forfeitures conteined in the Statute of Provisors, made in the 13 Richard 2. Done in the Parliament at Westminster, in the Ʋtas of S. Hillary; and we have by it a notable evidence of the King and Kingdoms good will and allowance of the continuance of these Rights, that they would not suffer them to be curtolled or kept back unpaid, not by virtue of an Or­der from Rome, (whose power how great it then was, all know) but willed rather a Praemunire against the Detainers, Perverters, and their Adherents and Assisters: The rest did, so should they set out their Dues, as of Right and accustomed; A strong evidence they were due indeed, when the State would not suffer them unpaid! Now not onely these but some others, it seems were wavering or shifting: The Fermours of Aliens gave within few years after occasion to this Vote. Item,5 Hen. 4. cap. 11. It is ordained and established that the Fermours and all manner Occupiers of the Mannours, Lands, Tene­ments, and others Possessions of Aliens, shall pay, and be bound to pay all manner of Dismes. (It seems others did, for this was no positive single Imposition upon them, but onely an Exemption from that they would have been exempted from) [Page 174] thereof due, (they were then no voluntary Benevolences, but discharge of Duty, and Due upon Command, though more acceptable if their readiness made them free-will-offerings,) To Parsons and Vicars of holy Church in whose Parishes the same Mannours, Lands, Tenements, and Possessions be (according to the manner then used and custom established for parochial discharge) so assessed and Due. Again, as the law of holy Church requireth. (That the bottom, indeed of all, looked upon by the State, and here required to have obedi­ence; and in others by the same reason; for why should we think These had any speciall Obligation to a Rule by themselves from the universal, which did rule all?) Notwithstanding that the said Mannours, Lands, Tenements, or other Pos­sessions, be seised into the Kings hands, or notwithstanding any prohibition made or to be made to the contrary. And yet notwithstanding all this too, that backwardness and eva­sion of the Cistertian crept further, which made it needfull to binde up all by an universal Decree within few years after, The grievance and remedy are there both thus proposed to­gether. Item, It 7 Hen 4. cap. 6. is ordeined that no person Religious or Secul [...]r, (which is large enough) of what estate or condition that he be, by colour of any Bulls conteining such Privi­ledges, (There must be Priviledges, and if Bulls from Rome could not afford them, What as then could? The common condition of things is known; (to be discharged of Dismes pertaining to Parish Churches, (Payment and Parochial. Again,) Prebends, Hospitals, or Vic. rages purchased be­fore 1 Rich. 2. or sithence not executed, shall put in erecution any such Bulls so purchased, or any such Bulls to be pur­chased in time to come: And if any such Religious or Secu­lar person, of what estate or condition he be, from hence­forth by colour of such Bulls, do trouble any person of holy Church, Prebend [...]ries, Wardens of Hospitals, or Vicars, so that they cannot take or enjoy the Tithes Due or per­taining to them of their said Benefices, Then to incur like pain at the Cistertian before. Thus to and in the time of Hen. 4. whither the proceedings shew all along the good will of the State (whose Acts these have been) in favour of [Page 175] these Dues; looking on and not hindering, but as was occasi­on and fit, furthering the due execution of their neighbour­ing Courts Laws, ever and anon renewing the pledges of their love and testimonies of their good will, that the wheels might keep moving that brought in Tithes from every Pos­sessour, and now it was as clear all abroad and evident to us they did so, as that men possessed any thing. Henceforth therefore particular Laws were not multiplied, (as they needed not,) aiming purposely and directly at the settling or recovery of them, but those that were, were left to due exe­cution, and that enough. The fruit doubtless (by the Church­es Authority as before directly used to call for them, and the Secular Powers assistance thus to bring them in,) such an uni­versall Payment (save where Achan would hide his Golden Wedge from the holy use it had been de­signed for, or [...]. Acts 5. 2. Slipt off somewhat from it. When our Tithes might have probably seemed our own, we had colour of liberty to use them as we saw good: But having made them H [...] whose they are, let us be warned by other mens example what it is [...], to wash or c [...]p that Coyn which hath on it the mark of God. H [...]ker Polit lib. 5. Sect 79. pag. 429. Ananias and his Wife [...], clip the Shekel appointed for the Sanctuary, I mean, coveteous or pro­fane men did by evident injustice hold back known Dues, against the Law,) that it needed and had a peculiar Exemption, whoseover now paid not. I need not be exempted from a Nineth or Eleventh, because none due to be required: I want no special Priviledge to be free from contribu­ting to a Paschal Lamb, or my Shekel for Jerusalem yearly, or the old Peter-pence, because none such now exacted among us: but to be free from this Tribute to the maintenance of Christian Religion, an Exemption was needed, which proves the Suppositum strongly, even as an Exception supposes an al­lowance of things otherwise by the general Rule, and an Exoneration or Discharge from an Impost or Quit-rent to have been paid, allows that it was due. ThreeSee a little before; but remember, that this Exemption was not then so much granted to these Orders, as a general Exemption granted before to all Orders restrained then to these. sorts were indeed so exempted, (and it was need so, else they must have paid) 1. The Templars, till they were Vid. Stat. de terris. Templariorum in 17 Ed. 2. p. 111. of Pultons Abridgement. taken off in Ed. 2. time, and their In­dowments settled on the Knights of Jeru­salem. 2. Those Knights themselves keeping their own, and [Page 176] succeeding to what as but now. And thirdly, the Cistertians▪ (of which also before,) all by the Decree of the Laterane Councel; and with them some others al­so: As All the Orders Caeteris verò ut de novalibus suis quae propriis manibus vel sumptibus excolunt, & de nutrimentis animalium suorum, & de hor­tis suis decimas non persolvant. Alexand. 3. in Deciet. lib. 3. tit. 30. cap. 10. for their own new broke Grounds, their pasture ground for their Cattle, and their Garden fruits; some Whereof see a very learned Discovery in Mr. Selden of Tythes. cap. 13. Sect. 2. for all their demains by parti­cular Charter from Rome; or by prescri­ption, (of lands in the possession of Clerks;) or by Grant, or by Composition, or by Custome: but these still, and the more they were, do all so much the more confirm the general usage, from which that men might be free they needed this Exemption. And this so well settled and quietly submitted to, that till the lowd and boisterous stormes in Hen. 8. time, when all was shaken, I meet not with here any disturbance, or any publick order, that (it seems) needed or had occasion to call for any new obedience. The Canons, last as they had been, placed as they were, and assisted (which was never wanting) with the whole force of the Temporal Power, kept all in awe, nor were Tythes but brought into the Store-house All, in the Prophets phrase to have better use made of them than I doubt commonly was. For 'tis the charitable intention of man, the wise provision of the Law, by the blessed providence of God that sets things often in a good way to honest or holy ends, but the corruption of man hin­ders; seldom does one half come to good, or are the things not to abuse enough perverted, how well or piously soever levelled and intended.

CHAP. XXIII.

THus for sixe successive Princes Raigns: Under Hen. 5. Hen. 6. Edw. 4. Edw. 5. Rich. 3. and the wise puissant Hen. 7. nothing being heard of murmure and discontent, but all in peace and silence. The Canons as in Lindewood, &c. governed the Consistory: Westminster sent to controul as often as any noise was made of extrava­gancy, by Prohibition: Some prudent Statutes, as Circum­spectè Agatis, Articuli Cleri, &c. had bound their hands too, that they might not send as oft as they would, but when abuse called for remedy; And so things went on in Harmony for justice, peace, and order through this intervall: Laws already made were obeyed, and more were not made, be­cause those that were, were both for their end sufficient, and set in a way to have sure execution.

But now in that general Earthquake when this Earth was moved, and all the Inhabitants thereof, though some Men stood, and some Parts were not overthrown, When the tur­bulent passions of that mighty and boisterous Prince left no­thing untouched or unshaken, and that some might seem at least to stand the faster, other parts were thought fit to be quite pulled down; yea, buried and intombed under the ruines of their own glory, as 'twere by the fatality of Jerichoes curse,Iosh. 6 26. Never more to be reedified, Maledictus vir ille coram Jehova, qui surget ut aedificet, &c. yet even Then was no prejudice offered nor diminution made of this part of Eccle­siastical Revenue, or Jurisdiction to bring it in, (a great ar­gument of its strength that had over-lived a storm, and some necessity that it was preserved when that next was chosen to be cast away;) But before this great work was done by him­self and his son, divers new sinews of strength added to con­firm all that had passed before, as well by clearing the right [Page 178] had been by27 Hen. 8. 20 32 Hen. 12. 2 Edw 6. 13. some new Statutes to evidence the justice of the claim, as by creating a new power to fetch them in, and inabling (secular persons at least) to sue for them in their own Court, the new Statute way: Not abrogating the Ec­clesiastical, but giving choice of this; Pointing to a new re­medy besides the old, (asSo is interpre­ted and used, and of force that of 2 Edw 6. 13. commonly understood, though some doubtThat the cla [...]se of treble da­mages in 2 Edw. 6 13. is to be s [...]ed in the Ecclesiasti­call Court onely: See Dr. Ridleys view of the Laws, par. 3. chap. 2. sect. 5. That Customes in payment of tythes are t [...]able onely in the Ecclesiastical Courts, was aver­red to be proved be­fore by him, Sect. 3 and see hereof the Proviso transcribed below. rationally,) But for certain not destroying That utterly: For theAnd that for subtraction of any of the said tythes, offer­ings, or other duties, the Parson, Vicar, Curate, or other party in that behalf grieved may by due processe of the Kings Ecclesiastical Laws of the Church of England convent the person or persons so offending before his Ordinary or other competent Iudge of this Realm, having authority to hear and determine the right of Tythes, and also to compel the same person or persons offending to doe and yeeld their said duties in this behalf. 27 Hen 8 12. And in case any person or persons of his or their ungodly & perverse will and mind, shall de­tain or with old any of the said tythes or offerings, or part or par [...]el thereof, then the person or party bring Ecclesiastical or Lay person, having cause to demand, or have the said tythes or offerings, being thereby wronged or gri [...]ved, shall and may convent the person or persons so offending, before the Ordinary, his Commissary or other competent Mini­ster, or lawfull Iudge of the place where such wrong shall be done, according to the Ecclesiastical Laws. And in every such case of matter or suit, the same Ordinary, Com­missary, or other competent Minister or lawfull Iudge, shall and may by vertue of this Act proceed to the examination, bearing, and determination of every such cause or mat­ter ordinarily or summarily, according to the course and processe of the said Ecclesiasticall Laws, and thereupon may give sentence accordingly. 32 Hen. 8. 7. often mention of it upon other occasions as well as this, with a clause of ProvisoAnd be it enacted by the Authority aforesaid, that if any person do subtract or withdraw any manner of tythes, obventions, profits, &c. that then the party so subtract­ing and withdrawing the same, may or shall be convented in the Kings Ecclesiasticall Court by the party from whom. &c. to the intent the Kings Judge Ecclesiasticall, shall and may, then and there bear & determine the same according to the Kings Ecclesiastical Laws. And that it shall not be lawfull unto the Parson, Vicar, &c. to convent or sue such withholder of tythes, obventions, or other duties aforesaid before any other Iudge then Ecclesiastical. 2 Edw. 123. inser­ted to fence all from violation, shews plainly that K. Henry meant what he did, and none should or could cross his pur­pose, sc. though the Pope went off to keep the Church-power up, and though the Abbies went down, yet Tythes for the support of Religion Must Not be medled with. Such power I mean as might begin and end its motion wholly within it self, like the wheels of a watch that keep them­selves going by help of a Spring at home▪ needing no power from abroad, not of a clock whose moving weights are with­out, and so liable to the inconvenience of forain disturbance: or as the highest sphere of all, Primus Motor, that keeps it self a going by it self meerly, not like the inferiour that wait [Page 179] on superiour influences; Such power, and the Jurisdiction of Tythes therewith and thereby, and the right of Tythes by consequent, yea, in Statute words expressed, not needing any derivation, He kept up in vigour, life, strength, and quick­ness, as it was of use; And as well the Records preserved as other means of information obvious enough do assure, that to his time, through his time, in it, and on this side the Law continued, which settles all, to settle these, and leave them settled, an indefeasible inheritance to us their unworthy po­sterity: And as they were left, so I hope for Gods glory, and the maintenance of his service and servants, (the labourers that bring in His Harvest) they shall not but always continue to all succeeding generations. For, Who hath despised the day of small things? says the Lord in theZach. 4. 1. Prophet: Or, who can deny but small things may be of great use and consi­deration in the greatest, sith by Divine appointment Badg­ers skin and Goats hair Exod. 25 4, 5. were offered acceptably to the building of a holy Tabernacle, whereby, was intended the great God of All should be honoured and sanctified? That Lord (Dominus Psal. 24. 1. cujus est terra & plenitudo ejus) who Matth. 21. 3. despised not a convoy of the meanest and simplest of beasts for his person on earth, seems Still to Need the vile things of this lower world to set forth his glory in this vile and lower world, and if any one say ought to the contrary, or in froward opposition, say still, as then, the Lord not onely useth, but hath need of them: His servants, though His, live yet by bread, if men, as well as by every word that proceedeth out of His mouth, their Lord and God. And sith, Though Jehovah could not be pulled out of Heaven by extin­guishing any of those Lamps that burned to his honour in the Temple of the Lord at Ierusalem, yet his wise old servants knew that unless their care, cost, and love did procure profane oile from Syria and Arabia, Those Lampes (with his honour) would go out on Earth, which made them contrive, purpose, and do accordingly; Even so, sith the nature of things is still the same, unless there be left such loving and discreet followers of his now, by whose vigilance, industry and care, some constant supply may be apportioned, [Page 180] and issued forth for the maintenance of the outward part of his honour and support of his Gospel, and those servants of his that do his pleasure in holding it forth ( [...],Rom. 13. 6. Ministers that attend this very Thing,) It is not without the compass of manly and Christian fear to be jealous, lest the light and brightness of the glorious Gospel of Jesus Christ, (now shining in the faces of all men, though not reaching to their hearts, it is much to be doub­ted, much less returning fruit in their answering upright lives,) should (which God forbid!) be extinguished upon Earth by our negligence and parcimony, though his Deity we trust shine now in Heaven, and shall, and ever, above the brightness of the Sun, and beyond all Eternity. Wee hold God to be the end of the soul, Truth the way leading to it and Him; The Church the pillar and ground of truth, to hold it out in view to the world, (this we are sure of, [...],1 Tim. 3. 16. the Apostle tels it us,) and the publick Ministers are the Churches servants: If then these servant shall do that work in holding forth this truth to guide to that end, They (being Men) must not have their daily allowance of Bread withheld from them, which keeps them hayl and strong, that they may live and be Able to fol­low their business; or if it be, the bottome foundation fails, and the whole frame must be left to sink and ruine with it for want of sustenance, or undersustentation: Unless by an unhallowed presumption we dare go on Tempting God in stead of Trusting him, still urging him to do, and expecting he should do, even ordinary miracles for our extraordinary preservation (and then daily miracles would scarce be any wonders,) putting him upon more work yet, after his Con­summatum est, to multiply loaves for his improvident Disci­ples, and leading him once more out of the way into the Wilderness, to lead us out of the path of his ordinary course of Providence to expect food from Heaven, when there is plenty enough upon Earth: Which if, and the boldness of our unreasonable presumption rather then well-instructed Christian faith, could be content to put upon Him, Whe­ther yet his servants who are to do the work, and being par­ty [Page 181] to the whole had need of some liberty of choice for refu­sal of the conditions, could be content to accept for enough for their parts, and hardy enough to trust to as their suffici­ent Viaticum for this convoy and their journey, may not, (considering their humane frailty,) be without some doubt:I have led you for­ty years in the Wildernesse: your cloathes are not waxen old upon you, and thy shooe is not waxen old upon thy foot. Deu. 29. 5, As in the space of forty years to hope for no reparation of cloaths, nor to put on a new shooe in half an age, and go provided with nothing but naked poverty to carry them through a dry and barren Wilderness, (where no water is,) Hungry and Thirsty, their souls fainting in them? Yes, They will; questionless, This and more, if they be called and com­pelled thereto;See Chap. 8. 4 Ne. hem. 9. 21. if the enemies of God will deny them the way, and the condition of things in an orderly Dispensation of Pro­vidence lead them to want as well as to abound: But all the friends of God will rather guide and help them in the direct right way to their Canaan, Neither denying them bread and water for their money, asDeut. 2. 27, 28. 30. the cursed Amorites did, (but were after sufficiently plagued for it,) nor money, if need­full, to buy them what they want for their comfort in the way; It being one of the most reasonable things in the world, that they that give Heaven should not want Earth, and They that sow to us Spiritual Things should not but reap our Car­nall. To all which things answering and well agreeing, it was therefore religiously, piously, and prudently, as well as justly resolved by those Councels guided Hen. 8. to dimi­nish nothing here, but to keep this settled and ancient Re­venue of Gods honour free from the touch of sacrilegious, profane, and imprudent as well as unjust hands, That no co­vetous Gehezi that loved his gain more then godliness, should meddle with that belonged not to him: nor greedy uncon­scionable Israelite with this portion of his Brother Levi, due Numb. 18. 21. for his service he serves in the Tabernacle of the Congregation, (and as necessary for the Common-wealth of Israel, as Judahs, Simeons, or Benjamins;) but when every one has enough, he should be free from want, and by as good security as any other claims his Right by, his Tribe have its Own also, (not by benevolence but by Right,) and so have occasion to bless the Lord his God for the good land he [Page 182] has given him with the rest of his Brethren: It being among our Divine Oracles, agreeable to the Laws of Nature, Equi­ty, Reason, and Civill Commutative Justice, that He that gives should receive;Matth. 10. 10. Luk. 10. 7. 1 Tim. 5. 18. The labourer is worthy of his reward; 1 Cor. 9. 7. No one going on warfare is to march at his own charge; He that feedeth a flock should eat of the milk of the flock; And as He Ver. 14. that waited on the Altar heretofore, did partake of the Altar there, So he that ministreth the Go­spel now, should live, [...], not of the Gospel, but of the Reward of his good message, or Glad tidings, asBy M. Mede in Diatrib. on the place, pa. 329. hath been somewhat Critically, but very Judiciously and Soundly observed on that Text.

Thus then this Politick and herein wise and just Prince re­solved, and accordingly gave his minde in sundry Acts passing his seal. The first whereof (clear enough in it self, and con­sequentially much to our purpose) was in cutting off Appeals from hence to Rome, and so making this Island-Church (as having no dependance of abroad,) a perfect Independent Congregation. For so it was then judged most expedient; that the affairs of Judea should not be sent necessarily to E­gypt or Babylon; Jerusalem might conclude all controversies that arose in the Land where Jerusalem was, and our Kings Crown being of Circular and thereby most capacious form, was large enough to involve and comprehend under it a re­solution of all those difficulties might arise under it; And that Therefore all doubts should be referred to him, There­fore all forain Appeals should cease, Whereupon ordered and set forth as followeth:24 Hen. 8. cha. 12 1. That this of England was an intire Monarchy: 2. Had suffered prejudice by appeals to abroad so long, as in Causes Testamentary, of Tythes, Ob­lations, &c. 3. It should be so no more, but even those cau­ses (of Tythes again expressed,) be here put to a period: And therefore, 4. Enacted, That All causes testamentary, causes of matrimony and divorce, Rights of Tythes, Ob­lations and Obventions, (the knowledge whereof by the goodnesse of Princes of this Realm, and by the Laws and Customes of the same appertaineth to the Spiritual Iuris­diction of this Realm,) (mark that Parenthesis, and the [Page 183] weight thereof, and this engraven in the inside of a Law, in­ferted into the heart of an Act of Parliament, to give the te­stimony certainty of credit, and the thing as much assurance to us, as any thing we have, without the Bible; that all such causes, I say,) already commenced, or happening hereaf­ter, &c. shall be examined, discussed, and definitively deter­mined, as the nature of any of the things aforesaid shall require, (here at home,) With power, command and threat to all to do their duty; Appeals to whom they shall be made; and from whom; and where the finall decision shall rest; and All in All the Branches before specified: Which does as much as any one Parliament Law can establish and assure the then power of the Church, and thereby her fol­lowing Acts, (even about Tythes expressed and by name,) and by consequent the Right and Property that should be at any time the result and fruit of all: Which must amount to we know what.

In the next year we have more of the same nature, in that concluding Proviso of 25 Hen. 8. 19. (before mentioned) about keeping life in the body of the Provincials (for a while, and till the new could be made) when the Pope the seeming Head of them was taken off. All know what dependance had been, and both to composition and execution, what in­fluences were formerly derived from that forain power upon those Laws: When the Head is cut off, the lower Nerves use (and by consequent limbs) to lose all power and motion for want of intercourfe with the brain wherein they were root­ed; which might be feared or doubted here reasonably, and this made it necessary to infuse a new life of power that should serve (as then intended,) for a while, to quicken the old body, till a new should be framed by chosen work­men to fit the King better, as to making and execution de­pending solely on his authority. Accordingly done. The mentioned Proviso ratifies all Canons, Constitutions, Or­dinances, and Synodals, till the thirty two should have pro­ceeded effectually: If they have so done, we have gained enough, (even to this particular,) andPag. 145. shewed how be­fore: If not, this Howsoever we have gotten, that the [Page 184] strength that is in the Provincials, all of them, Those for Tythes before, and all other, (save what since revoked, as about Tythes nothing has) stands firm and fast by Parlia­ment Constitution, and the evident sense of the words is to the purpose of these things unavoidable.

But if both these be yet remote, or not so fully home, wrapping things onely in implying generals (or consequen­ces) that take in Tythes but implicitly wherein by deriva­tion, (which is always to us fallible) may be mistake; Come we next to that which principally and fully, and in its finall and clear utmost scope intends and expresses Dueness, yea, Makes it, and where the words of the Law give the utmost any order can, a purposed Right and way for Recovery. Where is that? When the Cloisters went down and the whole Ecclesiastical state was thereby troubled not a little in 27 Hen. 8. Then was it needful, and Then was it done; and Then the right of these dues established, intended to be per­petuall. How appears this? By the Statute made the same year, in chap. 20. which (thereon to make some judgement by the way) as it is among the next that are nearest on this side toward us, So is it the utmost and farthest on the other, most mens weakness of sight is able to discern or reach to the apprehension of, and yet they think they ken all, and reach (as they do, as far as they can,) the bottome whereon all is settled: But blame them not, their sight is dim, and being hindred by business, idleness, averseness to the thing, or ma­nifold other sorts of incumbrances, or distractions, that they cannot, or do not purifie or strengthen it, by art, study, in­dustry, and other painfull and laboursome means usual of searching and gaining the truth, they work not beyond the sphere of their power and ability, making able and fitting judgement of those things, they have not the plain and sim­ple knowledge or apprehension of, that thereby they may be so able and prepared to judge. They are reputed Lear­ned, if they can little more then turn an Almanack, under­stand some plain English Authour, or but have seen a Sta­tute, and then, as the Aborigines of Italy, which born and bred there, travailed never far from their simple homes, but [Page 185] wonder at all abroad which strangers tell them; Or, as some simple Rusticks, who used to behold only the hils that incom­pass the valleys where they live, think them to be near the end of the world; if any thing be shewed them done beyond the mountains, they dare scarce believe a part, and will rest much perswaded that, whatever travellers tell them, is, (though they say, what we have heard and seen, declare we unto you,) lit­tle better then well-composed fables. For they walk by sense, and not by faith, or that little faith they have, is confined to the things of their own narrow hemispheres; Even so These, the utmost of whose knowledge, or highest of whose possible conversation or acquaintance, is but in some plain simple English Book, perhaps broken Statute Book, or per­haps but some Abridgemement or Compendium (Dispendi­um, those excellent instruments of advancing ignorance, and by help of little cost or pains inabling sluggards to know upon the matter as much as comes to just nothing,) build certainly and confidently upon this little as if it were All & enough, are resolute & confident as if there were no more, and if any thing be obtruded or questioned farther, they bestow but their at­tention or wonder, withAct. 13 41. Habak. 1. 5. Jewish incredulity they will not believe, nay, though a man tell it them: Suspecting all that is beyond the narrow compass of their very short reach, and not much caring if all other superfluities (they esteem them so, because they are not able to judge of them) were buried in the pit of utter forgetfulness: As little considering that their foundations have foundations, and those yet again o­ther, and other, and under, and yet farther under, and take away either, or the advantage and stay of either; the readiest way is taking to stir all, to unsettle the firmest, to tumble down the highest, to leave order, happiness, peace, and wealth, buried under a heap of rubbish, and the fair piles we now behold and enjoy, even All the fruits of an orderly and advised disposition of things intombed under the scattered fragments of its own ruine and very confusion. For old things are not to be cast away without possible inconveniences to new; the foundations unseen, are still a part of the fair buil­ding, yea, do support it; and take away the lowest, the next [Page 186] still sinks of any thing, and by degrees All; Even so take away the first settling Laws, the under-praestructions where­upon things had their first settling composition and stay, the rest totters, and may expect ere long ruine in a State; Par­ticularly for tythes, their fastest and most solid strength seems below in the old unseen acts of gift and first disposition; the new can be never but a fair and presently useful declaration, to set out uttermost to the sight of the world, and as the paint that shines for people to gaze upon; the strength of the wall and house both is in the inclosed materials and rocky foundation. Yet because these are of great estimation with the multitude, and ought indeed to be of some with All, I shall not shun to give them intire, in the opinion of the many enough to create a right, if nought else were, as if nought else were, perhaps they might: But as now things stand, are so far from doing it effectually and onely, that they do it not in any degree; Any more then if a present Act should be made about Fines and Relieves, the next age might think it gave the Lord that Right we know he enjoys already; Or, as a new Act about Quit-rents and Herriots should be mista­ken to raise or warrant the things no man but knows had right before; (The most in addition any new order can doe being but to rectifie, dispose, or settle some new course about the things so due already, that 'tis that injury comes near a Theft, to subtract or deny the just payment of them:) So the following later Statutes nor do, nor can any more but to re­vive, quicken and establish the ancient right of tythes, (ex­tant and of long being before,) awaken mens dulness, inforce their payment, remove obstructions that have grown in by corruption with time, and make that which is shine brighter and fairer by the fourbishing over of a new and fresh autho­rity; Their dueness being that these statutes did never in­tend to meddle with, infringe, further, help, nor hinder, but they were what they were before; and it were one of the most pitiful pieces of Ignorance befitting onely the Vulgar heard of unlettered Simplicians, and deserving rather commiserati­on then the exercise of any of our manly passions to entertain a thought to or toward the contrary. What! that these later [Page 187] Statutes created tythes! Made them due! Gave them! that their abrogation should have a possibility of taking them a­way! and what the service of God has to trust to by virtue of their promulgation! This is such a shallow conceit is onely worthy the weak brains of the multitude, where onely it pos­sibly could be hatched or can be tolerated or indured; no more excusable then if any should say, Aristotles Astronomy gave the Sun a being in the Firmament, or Charta Forrestae first set up Game, or a present Law, if it should dispose of, did erect Parks, and Chases, or a new order about Escheats or Mortuaries, the next mistaken Age might interpret to give them being and first beginning. But to the words of the Sta­tute, which both in the beginning and progress have dueness of Tythes existent and then in being supposed, and they are as followeth.

‘For [...]smuch as divers numbers of evil disposed persons inhabited in sundry Counties,Tythes shall be paid according to the Custo [...]e of the Parish, &c. Cities, Towns, and pla­ces of this Realm, having no respect to their duties to Al­mighty God,27 Hen 8. cap. 20. but against Right and good Conscience, have attempted to subtract and withhold in some places the whole, and in some places great parts of their Tythes and Ob­lations, as well personal as predi [...]l, Due unto Almighty God, and holy Church; and pursuing such their detestable enormities, and injuries, have attempted in late time past, to disobey contenm, and despise the processe, laws, and decrées of the Ecclesiastical Courts of this Realm, in more temerons and large manner then before this time hath béen séen: For reformation of which said injuries, and for uni­tie and peac to be pre [...]erved amongst the Kings Subjects of this Realm, our Soveraign Lord the King, being Supreme Head in Earth under God, of the Church of England, wil­ling the spiritual rights and duties of that Church to be pre­served, continued and maintained, hath ordained and en­acted by Authoritie of this present Parliament, That eve­ry of his Subjects of this Realm of England, Wales, and Ca­lais, and the Marches of the same, according to the Ecclesi­astical Laws and Ordinances of his Church of England, and after the laudable Usages and Customes of their Pa­rish, [Page 188] or other place, where he dwelleth, or occupieth, shall yéeld and pay his Tythes, and Offerings, and other duties of holy Church, and that for such subtractions of any of the said tythes, offerings, or other duties, the Parson, Vicar, or Curate, or other partie in that behalf grieved, may by due processe of the Ecclesiastical Laws of the Church of England convent the person or persons so offending before his Ordinarie, or other competent Iudge of this Realm, having authoritie to hear and determine the right of tythes, and also to compel the same person or persons so offending to do and yeeld their said duties in that behalf.’

This was the Legislative part: follows order in case of con­tumacy, that the Ordinary or other Judge shal crave the assist­ance of the Justices to attach the party, and commit him to ward, till he shall recognise to yield quiet obedience, &c. Pro­vided that this extend not to London, who were to have a way by themselves: nor to hinder any remedy by due prohibiti­on, &c. Nor any thing to continue longer then till the new Canon should be made, which is not yet done, and whereof before enough. Mark the whole Tenour; Is here any thing of giving Tythes? Of wronging any man of a Farthing by a new and forced Imposition? Of removing from one to settle on another? To enrich Peter by taking from Paul? Not a syllable. But all upon supposition, that somewhat was due before; Let that be paid; or if not, the allowed ancient course is awakened and quickened for recovery. So 'tis onely a Declaratory Law, as Sir Edward Cook speaks often upon like occasion, renewing what was, and rowsing up the dulness of perverse and covetous men to pay, who were found back­ward; but this was a goad to force them on forward in the way they had went, and wherein they ought to go. It were a disparagement to have here a Right settled to the Thing, and to it in our opinion, (yea, to our opinion it selfe) to think so.

But it seemeth things went not on by help of this new Law fully according to desire: The Times were we know troubled, and many other Rights being both unsettled and removed, no marvell if these (Neighbours to them) were also shaken. [Page 189] Divers no doubt wished them more then so, quite down, the mouthes or rather Gulphs, or rather then both hellish depths of sacrilegious and covetous carnal men having never been but wide open to devour what ever was sacred, and here stood gaping to swallow this morsell none of their Own, but due to man in Justice, as well as to God for Religion, and by Dedi­cation. For going on to subtract the just payment, the com­plaint is evident, inshrined in the sacred Monuments of the Law it selfe, and entered the Parliament Roll for memory, with what the wisedom of that Councel (the Representative of the Nation) could afford for remedy of so large a spreading inconvenience. It was intended chiefly for the new Impro­priator inabling him being Lay to make his Complaint in the spiritual Court, but reaching in all other also; with intent to let him in with them, by no means purposing to shut or let both out, and though with due restraint at first to that examen onely, yet Evasions were after found that both have used to go out, where no more was intended but to let one in. The Law speaks as followeth.

How Tythes ought to be paid, and how to be recover­ed being not paid.

Where divers and sundry persons inhabiting in sundry Counties and places of this Realm,32 Hen 8. cap. 7. and other the Kings Dominions, not regarding their Duties to Almighty God, and to the King our Sovereign Lord, but in few years past more contemptuously and commonly presuming to offend and infringe the good and wholesom Laws of this Realm, and gracious commandments of our said Sovereign Lord then in times past hath been séen or known,Mark: Laws, du­ties, and lawfull Tythes. have not letted to subtract and withdraw the lawfull and accustomed tythes of Corn, Hay, Pasturages, and other sort of tythes and Ob­lations commonly due to the Owners, Proprietaries, and Possessours of the Parsonages, Vicarages, and other Ec­clesiastical places, of and within the said Realms and Do­minions, being the more incouraged thereto, for that divers of the Kings Subjects being Lay persons, having Parsona­ges, Vicarages, and tythes to them and their heirs, or to them and to their heirs of their bodies lawfully begotten, [Page 190] or for form of life or years cannot by order and course of the Ecclesiastical Laws of this Realm, sue in any Ecclesiasti­cal Court for the wrongfull with-holding and detaining of the said tythes or other Duties, nor cannot by the Order of the Common Laws of this Realm have any due remedy against any person or persons, their heirs or assignes, that wrongfully detaineth or with-holdeth the same, by occasion whereof much controversie, suit, variance, and discord is like to insurge and insue among the Kings Subjects, to the great detriment, damage, and decay of many of them, if conveni­ent, and spéedy remedie be not therefore had and provided.

Wherefore it is ordained and inacted by our said Sove­reign Lord the King, with the assent of the Lords Spiritual and Temporal, & the Commons in this present Parliament assembled, & by Authority of the same, that all and singular persons of this his said Realm, or other his Dominions, of what estate, degrèe, or condition soever, he or they shall ful­ly, truly, and effectually divide, set out, yield and pay all and singular tythes and Offerings aforesaid, according to the lawfull Customes and Vsages of the Parishes and pla­ces, where such tythes or Duties shall grow, arise, come, or be due. And in case it shall happen any person or persons of his or their ungodly and perverse will and minde to detain or with hold any of the said tythes or Offerings, or part or parcell thereof, then the person or party being Ecclesiastical or Lay person, having cause to demand or have the said tythes or Offerings, being thereby wronged or grieved, shall and may convent the person or persons so offending be­fore the Ordinary, his Commissary, or other competent Minister, or lawfull Iudge of the place where such wrong shall be done according to the Ecclesistical Laws.

And so on to the Appellants paying Costs before he remove the Sute; Order to call in the Magistrates help in case of contumacy; saving Lands discharged of Tythes, and the City of Lon­don, &c.

This is that clearly is, and if there we no more, one would think, enough to settle as far as an Act of State or publick De­cree can, both a right and a course of Justice, that men should [Page 191] both be apportioned these Dues, and know how to come by them; of which yet I remember my word before, and far deeper is laid, and upon more firme, and lower, faster ground then any single tottering Act the Foundation of this Right, which settles not but upon (or with) the whole body of immovable Fundamentals of the Kingdom, is clasped in with the Roots of Government, hath grown up with it through all her known progresses to the present State of per­fection, is flesh of her flesh, bone of her bone, nor can, is much to be feared, without mortal violence admit a partition and segregation: such, as if mens private parcimony and pinching, wretched Covetousness, joyned with improvidence and injustice, should go on to call for so great a mischief upon themselves, would indanger to shake the frame of the whole Compages, and by the same unadvised Principle of its unjust and violent removal leave little constancy or assurance of any thing. Which great Possessours had need chiefly to look to, and prevent if they can, upon any pretence; as of easing poor men of their heavy burdens, preventing Troubles usuall in separation, hindering costly Suits formerly multiplied, wherein Christs Minister had sometimes the hap or favour of Justice, and to get the better of his wrangling adversarie, that will remove the ancient Land-mark, will remove any; they which complain of this Imposition may ere long think others heavy; that will unsettle one property will unsettle another. None is more rooted then this, hath its armes and fibres di­spersed through the whole body of the Laws Common Law, Canon Law, the Statutes, the Conquerours, S. Edwards, King Edwards, (the one past, the other to come) and hath in­deed over-lived all the mutations and revolutions of State that have been ever since here we have account of any thing. Good Englishman take heed in time, thy lot is fallen to thee in a fair ground, yea thou hast a goodly heritage, if thou canst be contented, thankfull, quiet, serve God, and give every man his his Due.Gen. 34. 21. As Hamor and Shichem to the sons of Ja­cob, The Land behold it is large; Here is enough for every one, if we can do as we would be done unto, give every man his Own, and suffer the Law to be master and onely safe Rule▪ [Page 192] to walk by; I am thine own flesh and bloud, and cannot but love thee, (yea, my self in thee,) with such tears of love I be­seech; Let no grating Incroachments procure mutual Trouble and molestation; Let not cruelty, covetousness, self-love, pride, malice, discontent, or pining envy that another man should have more then our selves, that another should have as much as our selves, that Gods Minister (our Governour in the Lord) should have an Own with us, (his known and granted Due,) prevail, least we wrap him with our selves in misery and wo, and all together in rage, fury, trouble, war, and by these wo­full steps at last, temporal if not eternal confusion. If the pub­lick had passed any thing to the contrary, This would alter the case; But I speak as Things are.

CHAP. XXIV.

THere remaineth yet one Statute more, the last di­rect: He that reades the former, and considers their plain, open, and full Contents, would scarce think it requisite their plainness should have an ex­position, or their fulness and sufficiency could need any sup­plement: but men love the things of this World Dearly, if any evasion be to be made from parting with the love of their souls, they will finde it: Call they the things of this World Goods? their fears, hopes, cares, desires, and all the affecti­ons of their souls shew an higher price in their estimation, as Best; and loath to depart they sing, for Religion, Gospel, the Service of God, and to redeem the acknowledged Ordinances of Heaven from the land of utter forgetfulness. Such is their worldly mindedness: I speak not of all, but so many there were heretofore as made it needfull to add, what young King Edward did, and by the advice and Authority of his Parlia­ment to make yet stricter provision that former good Laws should not be perverted (though 'tis complained His is since as much perverted as any) and men might not withdraw [Page 193] their Dues upon any occasion. This was done soon after he be­gan his Reign, and in the words following.

Whereas in the Parliament holden at Westminster the fourth day of February, In what manner Tythes ought to be paid. 2 & 3 Ed. 6. c. 13. the seventéenth year of the late Hen. 8 there was an Act made concerning paiment of Tithes pre­dial and personal, and also in another Parliament, July 24. in 32 Hen. 8. another Act was made concerning true pai­ment of Tithes and Offerings; in which severall Acts ma­ny and divers things be omitted and left out, which were convenient and very necessarie to be added to the same: In consideration thereof, and to the intent the said Tythes may be hereafter truly paid according to the minde of the makers of the said Act: Be it ordained by the King our So­veraign Lord, with the assent of the Lords Spiritual and Temporal, and the Commons in this present Parliament assembled, and by the Authoritie of the same, That not onely the said Acts made in the said 27 & 32 of Hen. 8. concerning true paiment of Tithes, and every Article and branch therein conteined shall abide and stand in their full strength and virtue; but also be it further enacted by Autho­ritie of this present Parliament, that every of the Kings Subjects shall from henceforth, truly and justly with­out fraud or guile, divide, set out, yéeld and pay all manner of their prediall Tythes, in their proper kinde, as they rise and happen, in such manner and form as hath béen of Right yéelded and paid within fourty years next before the making of this Act, or of Right or Custom ought to have béen paid. And that no person shall from henceforth take or carry away any such or like Tythes, which have been yéelded or paid within the said fourty years, or of Right ought to have béen paid in the place, or places tythable of the same, before he hath justly divided or set forth for the Tythe thereof the tenth part of the same, or otherwise agréed for the same Tythes, with the Parson, Vicar or other Owner, Proprie­tarie, or Fermour of the same Tithes under the pain of Forfeiture of treble value of the Tithes so taken or carried away.

And be it also enacted by the Authoritie aforesaid, that [Page 194] at all times whensoever, and as often as the said prediall tithes shall be due at the [...]he tithing time of the same, is to beIn continuance of care the might be for remedying that [...] mentioned to be redressed, and was redressed by the Provincial of Sim. Mepham before, Cap. Quia qui­dam, tit. de deci­mis. Vid. Sup pa. 136. & 171. lawful to every partie, to whom any of the same tithes ought to be paid, or his Deputie, or servant, to view and sée their said tithes to be justly and truly set forth, and severed from the 9 parts, and the same quietly to take and carrie away. And if any person carry away his Corn, or Hay, or his other predial tithes, before the tithes thereof be set forth, or willinglie withdraw the tithes of the same, or of such other things, whereof predial tithes ought to be paid, or do stop, or let the Parson, Vicar, Proprietarie, Owner, or other their Deputie or Fermours, to view, take, and carrie away their tithes, as is abovesaid, by rea­son whereof the said tithe or tenth is lost, impaired, or hurt, that then upon one proof thereof made, before the Spiri­tual Judge, or any other Judge, to whom heretofore hee might have made complaint, the party so carrying away, withdrawing, letting or stopping, shall pay the double va­lue of the tenth or tithe so taken, lost, withdrawn or carri­ed away, over and besides the costs, charges, and expences of the suit in the same, the same to be recovered before the Ecclesiastical Judge, according to the Kings Ecclesiastical Laws.

And, Be it farther enacted by the Authoritie aforesaid, That all and every person which hath, or shall have any Beasts, or other Cattle [...], going, féeding, or departuring in any waste or common ground, whereof the Parish is not certainly known, shall pay their tithes for the increase of the said Cattle so going in the said Waste or Common, to the Parson, Vicar, Proprietarie, Portiona­rie, Owner, or other their Fermours, or Deputies of the Parish, Hamlet, Town, or other place, where the owner of the said Cattle inhabiteth or dwelieth.

Provided always, and be it enacted by the Authoritie aforesaid, that [...] person shall be sued, or otherwise compel­led to yéeld, give, or pay any manner of tithes, for any Mannors, Lands, Tenements, or Hereditaments, which by the Laws and Statutes of this Realm, or by any [Page 195] Priviledge or Prescription, are not chargeable with the payment of any such tithes, or that be discharged by any composition reall.

Provided alwaies, and be if enacted by the Authoritie aforesaid, that all such barren, heath, or waste ground, o­ther then such as be discharged for the payment of tithes by Act of Parliament, which before this time have lain barren, & paid no tithes, by reason of the same barrennesse, and no to be, or hereafter shall be improved and converted into ara­ble ground or meadow, shall from henceforth, after the end and term of seven years, next after such improvement fully ended and determined, pay tithe for the Corn & Hay growing upon the same: Any thing in this Act to the con­trarie in any wise notwithstanding.

Provided alwaies, and be if enacted by the Authoritie a­foresaid, that if any such barren, wa [...]te, or heath ground, hath before this time been charged with the payment of a­ny tithe [...], and that the same be hereafter improved and con­verted into arable ground or meadow, that then the owner or owners thereof, shall▪ during the seven years next follow­ing, from and after the same improvement, pay such kind of tith [...] as was paid for the same, before the said improve­ment: Any thing in this Act to the contrary in any wise notwithstanding.

And be it farther enacted by the Authoritie aforesaid, that every person exercising Merchandises, Bargaining and Selling, Cloathing, Handicraft, or other Art or Fa­cultie, being such kinde of persons, and in such places, as heretofore within these fortie years have accustomably used to pay such personal tithes, or of right ought to pay, (other then such as have béen common day-labourers,) shall yearlie at or before the Feast of Easter, pay for his personall tithes, the tenth part of his clear gains, his charges and ex­pences, according to his estate, condition, or degree, to be therein abated, allowed, and deductes.

Provided, And be it also enacted by the Authoritie a­foresaid, that if any person refuse to pay his personal tithes in form aforesaid, that then it shall be lawful to the Ordi­narie [Page 196] of the same Diocesse, where the partie that so ought to pay the said tithes is dwelling, to call the same partie before him, and by his discretion to examine him by all law­ful and reasonable means, other then by the parties own Corporal Oath, concerning the true payment of the said personal tithes. Then after a Proviso about Easter-offerings.

Provided also, and be it enacted by the Authoritie afore­said, that this Act or any thing therein contained, shall not extend to any Parish, which stands upon and toward the Sea-coasts, the commodities and occupying whereof, con­sisteth chiefly in fishing, and hath by reason thereof used to satisfie their tithe by Fish: but that all and every such Parish and Parishes shall hereafter pay their tithes, accor­ding to the laudable customes, as they have heretofore of ancient time, within these fortie years used and accusto­med, and shall pay their offerings as is aforesaid.

Provided always, and be it enacted by the Authoritie afore­said, that this Act or any thing therein contained, shal not ex­tend in any wise to the Inhabitants of the Citie of London, and Canterbury, &c. And be it further enacted by the Authori­tie aforesaid, that if any person do subtract, or withdraw any manner of tithes, o [...] ventions, profits, commodities, or other duties before mentioned, or any part of them, contrarie to the true meaning of this Act, or of any other Act hereto­fore made, that then the partie so subtracting, or withdraw­ing the same, may or shall be convented and sued in the Kings Ecclesiasticall Court, by the partie from whom the same shall be subtracted or withdrawn, to the intent the Kings Iudge Ecclesiasticall shall and may then and there hear and determine the same according to the Kings Eccle­siasticall Laws. And that it shall not beHow then have suits been ordinari­ly and at first in­stance commenced where they have been? lawful unto the Parson, Vicar, Proprietarie, Owner, or other their Fermor, or Deputies, contrarie to this Act, to convent or sue such withholder of tithes, obventions, or other duties aforesaid, before any other Iudge, then Ecclesiasticall. And if the sentence given finde not obedience, the partie to be excommunicate, in which state if he stand fortie daies, upon Certificate into the Chancerie, to have the Writ su­ed [Page 197] out De Excommunicato Capiendo, &c.

And before a Prohibition granted, the Libel to be shew­ed to the Iudge, &c. whose hands (the Ecccles. Iudges) are after bound he shall not hold plea of any matter, cause, or thing, being contrarie repugnant to, or against the in­tent, effect, or meaning of the Statute of West. 2. cap. 5. the Statute of Articuli Cleri, Circumspectè Agatis, Sylva Caedua, the Treatise De Regia Prohibitione, ne against the Statnte of 1 Edw. 3. cap. 10. (as 'tis printed, but it seems to be rather from the second Parliament of 1 Edw. 3. ca. 11.) ne yet hold plea of any thing whereof the Kings Court of right ought to have Iurisdiction: Any thing therein con­tained to the contrary in any wise notwithstanding, Ex­cept for tithe of Marriage goods in Wales.

I have given this the more fully, because it seemeth the last direct binding law: and though it be at top, the bot­tome whereon all is settled; But so is it not: There is that lays five times deeper, as hath been shewn, and the axe must be laid to the root of the tree, even the bottome of all Law with us, and more then 500 years deep before the utmost can be reached here, which every private man should do well to think of, that dares give his thoughts scope to deliberate a­bout eradication. What is it to go down so low, and strike at those humours by strength of Physick that have their sedi­ment at the Root of Nature? Galens hand trembled the day before he gave his Rubarb, foreseeing thereby the vio­lence he must offer to the whole by pulling away a part, and to fetch some superfluities away, the Body must be shaken: If vigour of nature should not here meet to assist, no less dan­ger or fear then which it might import to think of purging out so settled corruptions; if tythes be such, and not as ma­ny take them, very wholesome juices. But to 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 [Page 198] 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 [Page 199] was? Or, then was no where? This were non­sense 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, [Page 200] though of the same year, for it is placed before it,) whereWestm. 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, andThe 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, 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, [Page 201] the Court of Religion? Yea, even frther for this reason, because they were spiritualibus annexa, as Bracton calls them ordinarily, they must be in way of tryal spirituali­tati annexa. And hence also we finde the purposed and dis­persed tractation of them, as in their proper Cell, in the Ca­nons; Not in the Statutes, nor in the Year-books, nor in Bracton, nor Fleta, nor the Common Law it self, (of late days,) for the nature of them brought them elsewhere for Regulation and Tractation; Why not? Yea, necessarily Therefore to the answering Court for discussion.

VII. Take the opinion of one, not less Learned (without disparagement,) then that Learned Justicer, who with judg­ment and much freedome inquired here into, and purposely long since; And he settles the Jurisdiction from the County to the Consistory by the Conquerour, as before.Selden Hist. of Tythes, cap. 14. His 14. Chapter is a Judicious and Intended History of that Juris­diction, which having found commixed with the Secular un­der the Saxons, and Danes, He makes them part with the Conquerour: He produces some instances of Cases soon af­ter reasoned and determined before the Ecclesiastical Judges, and with equal diligence is troubled to find, as a rarity, some other in the Kings Court so low, as about Hen. 2. and King John, and then Regularly they began to come to the Church alone, and nere there handled at first instance onely. This, (and it hath been so ever since) is long before 9 Edw. 1.

VIII. The Stat. De Regia Prohibitione, seems made when before. The print has it indefinitely for Hen. 3. or one of the first Edwards: But sith no evidence is for any of these, the place and manner of entring may give it to pass that it was in the former, sith, as before, in the least deceiving or to be suspected way of entring in Manuscript of about those times written, it is cast in among the Laws of that date, and by name before the Statute De Bissextili, made 21 Hen. 3.

IX. Plainly in another Manuscript of that Kings Raign, among other grievances which theAnnals of Burton, in M. Selden, pa. 429. And observe what follows in Rob. Grossetell hu complaint there next, especially that, A seculari n. Iudice discin [...] di non poterunt, pa. 431. and the advice of the Synod at London, p. 433 Clergy in a Synod at London represented to Otho the Popes Legate, desiring him to represent them to the King for remedy; One was, The lavish use of the Indicavit, whereupon, Solent Justiciarii [Page 202] Domini Regis judicare, quota pars decimarum peti possit vel debeat coram Judice Ecclesiastico: which was to binde the hands of that Judge, presupposing therefore certainly, and therein that he had then some liberty to use them. And ano­ther Article: Item ne currat Prohibitio Domini Regis, ne Rector Parochialis Ecclesiae impetat eis qui percipiunt deci­mas infra limites Parachiae suae. There needed a Prohibiti­on then to stop the usuall course of the Parsons, suing for the tythes of his Parish; where? think we.

X. To omitDecimae qua­tenus decimae de­bent in foro Ec­clesiastico inter­tari. lib. 6. cap 37 Fleta, who might be but under Edw. 2. (and yet many passages are in him fair for proof, that as sure they were then, so things had continued from Bractons time:) But for Bracton by assurance enough 'tis evident from him, that he often mentions tythes as Spiritualibus & spi­ritualitati annexa: and indeed he that can judge any thing by complex on of things, will be apt to pass his sentence from their nature; they were not far off from Causes Testamenta­ry, Matrimonial, and other of tenderest like nature and con­sequence, then knowne to have their walke here. Among otherLib. 5. Tra. 5. de Exceptioni [...]bus, cap. 2. sect. 5. so. 401. Exceptions (treating of them in general,) he lays one sort against the Jurisdiction of the Court, describing and defining what each is, and coming to that Section, Quae pertinent ad forum Ecclesiasticum, & quae ad forum seculare, among other things this comes in: Nec pertinet ad eos (the King and Secular Judge) cognoscere de iis quae sunt spiritu­alibus annexa; sicut de Decimis & aliis Ecclesiae proven­tionibus. Item, nec de catallis quae sunt de testamento vel matrimonio. After proceeding to the Common place of Pro­hibitions, Lib eod. cap. 9. & 10 fo. 406, 407. quando & in quibus locum habet Prohibitio, sicut de re sacra, &c. when allowable, when not; They do lay he says in case of lay fee, &c. but they do not when the doubt is de aliquo spirituali, vel spiritualitati annexo: Is tythes any such directly? It follows: Item locum non habebit pro­hibitio si agatur de decimis: which gives more then their Jurisdiction here, here alone without any removal; a Prohi­bition could not prohibit, and it had been vain again to sup­pose a Prohibition of that might not be prohibited. This is farther that alone that takes place to cause a suit to be new [Page 203] Cap. 4. sect. 1. fol 402. graffed from a Clerk to the Patrons name, bringing (up­on supposition of wrong done to him in his Lay-Advowson,) the main to the temporal Judge by Indicavit; And this not only if the whole tythes were in question, but aIb. sect. 2. fourth part, a fifth, or a sixth, but no farther: for so far the Writ of Indicavit would then reach, thoughBy the Statute of Westm. 2. ca 5. Circumspectè a­gatis, sect 2. & Artic: Cleri, cap. 2. Whereof see a notable disquisition in M. Selden, de dec. cap. 14. since it bee altered, and to the fourth part limited. Again, Item Cap. 10. sect. 6. fo 408. locum non habebit prohibitio de recenti spoliatione, ut si Clericus Clericum spoliaverit de Decimis vel aliis de quibus cognitio pertinet adforum Ecclesiasticum, in another place. And yet again in another, they are both styledCa. 16. fo 413 Res Spiritua­les (not onely Spiritualitati annexae, in their Jurisdiction as was alledged, whereCook Inst. ubi supra. before, but Res Bract fo. 412 Spirituales,) and are said to shift faces and change shapes; now for This, anon for That; One while for lay, Then for tythes, and back again ere long (as it may be) to Temporals. As Lay, Laica catalla, So they are under the secular authority: As res decimatae, tythes marked out, so under the spiritual: and as sold returning back again to Westminster. Quo teneam nodo? yet thus it is, and the thing the same under severall suppositions and considerations. Many other such assertions, suppositions, and intimations there are in him; The whole frame of whose Discourse bends this way, or is managed as supposing things thus, and I am confident he hath not any thing to the contrary. As for Glanvil who was before, he mentions the Court Christian often, but never tythes tryed there that I could finde, (though Glebe often;) This I confess: But then withall he mentions them not all to trial, nor as here, nor anywhere else, and so his authority is to be drawn neither way. Bracton dates from the farthest back­ward besides, And he hath as hath been seen.

And these things do, I rest assured, secure the thing un­dertaken for the Jurisdiction of tythes sooner in the Con­sistory (and by consequent their right) then was allowed by that most learned man. I hope his friends and favourers will not take it amiss that a Pigmy dare confront a Gyant, or Hercules in his power have some opposition by a weak and common passenger: Magis amica veritas, it must be so with [Page 204] me, and before whomsoever the beauty of Truth most gra­cious and lovely. Exosculor, I profess to love and reverence the memory of that most deserving man, both blessing and admiring the footsteps of his ingenouous sedulity, wherever I see him tracing with so much care, industry, eloquence and gravity, the windings and turnings of his sacred profession, (for he was a Judge of Israel:) But magna est veritas & praevalebit, Truth hath the greatest command, power, and lustre with me before All, and must ever prevailbefore any opinions, perswasions, persons or names of men in the world. Which I take to be here, that the Jurisdiction of tythes was not made a branch of Church-power by force or permis­sion of any ancient Statute, but a native and connatural branch of her first power, born with it and receiving life in this world, and hath been bred, continued, conserved, and brought up with it hitherto, nor since that Court has been, but this hath been a part of its work through all ages and generations. And so should I have done with this Statute, (whose com­ments have occasioned this digression,) but that finding there a clause for personal tythes, yet in force, and the things due, but little said of them elsewhere, and this thought the Onely ground; For illustration of a dark truth, and clearing their doubted right, I think it not amiss to continue a few steps more besides the direct way, to enquire presently what dee­per radication they may be discovered to have then the bare command of that single authority: For no question is, but they are due, and in conscience ought to be paid, as well as other dues, the Law remaining, whose Dueness arises onely by the word of the Law: Necessitate praecepti, as we say, meer­ly by vertue of the commandment; no other equity or neces­sity of the Thing appearing, but onely because they are stated settled Rights, by like reason where to here. He that denies my Heriot or Relieve, may as well his half years rent: He that shuffles for his suit or service, Homage or Fealty, by like reason (why not?) for his Corn or money: For the same Law gives the same Due to all; They stand upon the same bottome, are brought in by the same Spring, and if this prove too weak for the one, it may not be long ere Thence the other fall short of Home also.

CHAP. XXVI.

AS to Personal Tythes then, (to lay the whole under one view,) two things very material are to be observed to have been laid down before in the bosom of the alledged Law: 1. That they were not now set up, but the Statute in making them payable sayes they shall be paid where for fourty years past they had been: (which if it had not been here averred, without any great difficultymight have been made good from the condition of things, But we take that is.) 2. There was not only an Usage but a Right: So are the words; All persons shall pay where for time past they have paid, or of Right they ought to pay. A Right then, and an Usage, a Title and a Possession are already secured. Thus from the Statute, and beyond the Statute; but we must go much higher to search how. And we may not seasonably urge the Patern of Abrahams spoils to Melchisedek, nor what I findeBy Dr. Til­desley e [...] his Ani [...] madvetsion on Mr. Seldens Preface to his Hi­story At this day. Qui Religiosiores sunt inter Iudaeos, loco decimarum eleemosynam pendunt de omni­bus l [...]cris; de­cem aureos de ce [...]um, centum de mille, &c. Pirki Abboth. remembred by Mr. Selden in his re­view of cap. 2. p. 455. urged, Decimas & primi­tias manuum tuarum; Deut. 12. And Bring ye All the Tythes into the Lords store-house, (not some but All,) Mal. 3. Or, which is most pertinent, Give the Lord his honour with a good eye,—and dedicate thy Tythes with gladness: Give unto the most high as he hath enriched thee (as 'twere howsoever,) Ecclus. 35. 8, 9, 10. Da secundum Donatum ejus, is the vulgar there: whence Alensis nimbly, Si ergo ex dono Dei possidentur omnia quae acquiruntur justo negotio vel arte, de illis decimae dandae erunt: If we must render of all God gives, and he give what ever we get, then of all we gain in what just way soever: nor yet may I insist upon Councels and Fathers, as Hierom, Chrysostome, Gregory, Ambrose, Augustine, &c. the latter of whomDe tempore Serm. 219 Tom. 10. pa. 169. speaks out fully indeed, Quod si deci­mas [Page 206] non habeas fructuum terrenorum quod habet agricolas quodcunque te pascit ingenium Dei est, & inde decimas expe­tit unde vivis: (good Reason and Divinity both;) De mili­tia, de negotio, & de artificio, redde decimas; Aliud enim pro terra dependimus, Aliud pro usura vitae postulamus. If thou hast no Land, Render of that thou hast, of Gods guift what­soever, is the short of it. But all these are without my pale. And so it may be is also that of theDemilitia, de negotio, de artificio redde decimas. Caus 16. quest. 1. C. Deci­mae. Quid est fi­deliter decimas dare? nisi ut nec prius, nec minus aliquando Deo offerat aut de grano suo, aut de vino suo, aut de fructibus arbo­rum, aut de pe­coribus, aut de ho [...]o, aut de ne­gotio, aut de ipsa venatione ua. Caus. ead. Quaest. 7. Ca. Quicun (que). De vino, grano, fructibus arbo­rum, pecoribus, hortis, negocia­tione, de ipsa eti­am militia, de venatione, & de omnibus bonis, decimae sunt mi­nistris Ecclesiae tribuendae, ita ut qui de his eas sol­vere neglexerint, Ecclesiast ca di­st [...]ictione debeant percelli. Decret. Greg. lib 3. tit. de decimis, cap. 22. Decrees and Decre­tals; and yet perhaps not neither, by reason of the last Provi­so of 25 Hen. 8. 19. which speaks doubtfully, and whether all Canons before of force remain not yet so here, (that are not against the Temporal State,) as well as our Provincials, is at least from the words very dubitable. But our own binde strongest, like our English Oak which admits no compare; So nor for strength and certainty to us our English Constitu­tions. Look then at first far back, and even so far as before the Conquerour, somewhat was thought on here tending this way. Some Canons I finde or Rules of good credit digested and left to us under the Title of Excerptiones Egberti, who lived about the year 750. (soon after the first faith of the Na­tion,) and had it seems for his own use and others laid to­gether sundry Rules which he judged most expedient to be followed; among which, (after for Tythes in general) for Per­sonal. Vid. Exce [...]pt. Egherti, can. 100. in Spelman. Decimae igitur tributa sunt Ecclesiarum, (saith he) & egentium animarum. O homo, inde Dominus expetit deci­mas unde vivis. De militia, de negotio, de artificio redde deci­mas. Tythes are a Tribute due, Therefore pay of all thou livest by: of thy spoiles, of thy work, and of thy handicraft. Of about K. Knouts time were also some otherCapitula in­certae editionis. cap. 35. in cod. p. 610. affording reason again with command, and equity mixed with true pie­ty. Admonendi sunt qui negotiis ac mercationibus rerum in­vigilant, ut non plus terrena lucra quam vitam cupiant sem­piternam. Merchants and Tradesmen are to be minded that they look not more after gain then godlinesse, their estates then their souls: and a little after, Sicut ab his qui labore agrorum, & caeteris laboribus victum atque vestimen­tum quaerunt, & necessaria usibus humanis acquirere in­hiantes instant, decimae & eleemosynae dandae sunt; ita his quo­que [Page 207] qui pro necessitatibus suis negotiis insistunt faciendum est. Ʋnicuique enim homini Deus aedit artem qua pascitur, & unusquisque de arte sua, de qua corporis necessaria subsidia ha­bet, animae quoque quod magis necessarium est, subsidium ad­ministrare debet. As of Husbandmen and day-labourers Tithes and Almes are to bee spared, so of those that deal in any Trade; for God gives to every man how to live, and what from his gift man so uses to provide for his body, much more ought he therewith to be at cost to provide for his soul. But the most observable of this intervall was that given before from King Edwards Law,In cod p. 621. cap. 9. De hortis & negotiationibus, & omnibus rebus quas dederit Dominus, decima pars, &c. of merchandise, and All the Tenth to be returned to God that gave: which yet because it was there both given and repeated needs not here again to be transcribed and recited. Remem­bered be it that whereas before the Common Law was said to be made up of certain pre-existent materials, They as to this particular may have been such Laws as these: Whereas also those parts were after made up into one common body by King Edward, in giving this he may seem to have given the extract of Those (of this Nature before him:) Lastly, where­as those so distinguished Laws had after severall Scenes whereon things within their several charges were acted, what was Ecclesiasticall being separate for the Consistory, what Temporal left to the Shire Court, &c. Therefore we may not now reasonably hereafter look for any thing more of these personal Tythes but where they were, that is, among the Sy­nodals and Provincials, and there indeed we finde, nay we have both found and already given them before remembred and recited: as, What saidLindwood lib. 3. tit. de de­cimis cap. Quo­niam propter. Rob. Winchelsee? Statuimus etiam quod decimae personales solvantur de artificibus & mercatori­bus, sc. de lucro negotiationis. We appoint personal Tythes be paid by handicrafts-men and merchants. Similiter etiam de Carpentariis, Fabris, Caementariis, Textoribus, &c. and of Carpenters, Smiths, Masons, Weavers, and all work­men. WhatIb. Cap. Sancta Eccl. sia. said he again? Decimam lactis, &c. venationum, artificiorum, & negotiationum: of hunting, handicrafts, and merchandise. What said Simon Mepham and [Page 208] Jo. Stratforth, but to confirm and inforce what before he had before stated? and as well might then those that were pre­dial and acknowledged due have been denied as these, They stood both on one bottom. So Edward 6. found them, and did by no means raise and impose this personal burden, but bound it on to continue fast where it had been, and was; insomuch that in stead of barren words, and empty lines, a special em­phasis is to be acknowledged in that part of the clause laden with much Truth, where Every person exercising merchan­dises, &c. being such persons, and in such places as have within fourty years past used to Pay Personal Tythes, or of Right Ought to pay (save day labourers) is command­ed yearly before Easter to bring in their Dues. They were used to be paid: Then as Now, and Now as but Then, they must and ought. To make the Payment whereof more sure, or supply the defect, there was appointed a distinctSi decedens tria vel plura cujus­cunque generis in bonis suis habuerit animalia, optimo cui de jure fuerit de­bitum reservato, Ecclesiae suae à qua sa­cramenta recepit dum v [...]ve [...]et sine dolo, fraude, seu contra dictione qualibet pro recompenlatione subtractionis decima­rum personalium & oblationum secun­dum melius animal reservetur post obi­tum, &c. tit de consuetud cap. statu­tum, per Simon, Laughan. mortuary, of those that were not very poor, for compen­sation of such personal Tythes subtracted. The force of all which things, and particular­ly the two Constitutions before mentioned was such, even before the statute, that as grave aSt. Germane, lib. 2. Dial. ult. fol. 172, 173. Lawyer (as I believe) any lived in H. 8. time, though he wonders at some parti­cularity here, that they may be demanded, and if denied, sued for, whereas in other pla­ces they are left it seems to the Debtors con­science, yet he avers their Duenesse, describes their Nature, speaks of them as of known Right, no more questionable then predial; And what should have been done about them if the intended Reformation, so often spoken of, had proceeded to maturity, might be guessed by that which was. ForMagnam in­dignitatem habet à tenuibus & laboriosis agricolis decimas annuas Ecclesiarum ministris suppeditare, mercatores autem opibus affluentes, & viros scientiarum & artificiorum copiis abundantes, nihil fermè ad ministrorum ne­cessitates conferre, praesertim cum illis ministrorum officio non minùs opus sit, quàm colonis. Quapropter, ut ex par [...] labore par consequatur merces, constituimus ut mercatores, pannorum confectores & artifices reliqui cujuscunque generis, ac omnes qui scientia vel peritia qualecunque lucrum percip [...]unt, hoc modo decimas persolvant: pro domibus nimirum atque terris quibus utuntur, & illarum ratione decimas prae­ [...]iales non solvunt, quol bet anno dabunt annuae pensionis decimam partem. Reform. L. Eccles. tit. de de­cimi, cap. 14. p. 122, vid. etiam cap. 13. 15, 16. four [Page 209] severall Chapters are taken up there about the disposition of them, the heads whereof were given before, and into the Contents of one of them this very Statute is taken and au­thorized; If there had been a new Canon Law, those Chap­ters should have been part of it; As there is none, the old is of force, and in all its power beside the Statute, and that a­gain by Statute. Neither had the thing onely consideration in Books; we finde regard given to it in the Acts of Men, and the World busied, not to say very much troubled about the Wealth that came in by them. The great and vexed Contro­versie in Oxford, in Henry 6. time about Fr. Russell and his Doctrine which took up the learned Disputes of the Univer­sity there, and smoother Consultations also of the Convocati­on at London, and after was transmitted to Rome, and there not ended, was onely about the necessary and fit Receiver of personal Tythes; while he maintained, it seems, to his own advantage, and against the Secular Priests, that they might be given as well to the poor as the Church, as we say, to the Monk as to the Priest, (and then he stood ready as a Mendi­cant, as the Priest for his Parish:) They on the contrary to the Church onely, and so He and His were excluded. The de­terminations it seems settled (the major part) against him, and he for his errour was injoyned to recant publickly at Pauls Crosse, lesse then the performance whereof would not serve the turn, and all the Pulpits in England commanded to ring of what an Heresie Fr. W. Russell had maintained (indeed against the Pulpits) about personal Tythes, now to be cried down by all opportunity, and the utmost of possibility. The Particulars I findeBy Mr. Sel­den in his History of Tythes, cap. 7. Sect 5. related at large; the use I make of them is onely this, that These things Have been of Real consideration, not an empty Book Order, but such as had influence upon things and produced visible effect, the Consultations of Men having been taken up about the disposall of the seen fruit of them, much busying, yea not a little troubling the World, for long since, and so long together, and so no doubt things stood to Edward 6. time, and so he found and left them. Whereupon, and that ancient rooted Right (spreading likely further, as might be found by further inquiry, if it were also need­ful,) [Page 210] he settled his new vote and order of confirmation as it were: What, to make personal tythes due! to give them life and raise them to being! Nothing less: to revive and quicken the Law, that dull men that were to pay, and had wont, might be rouzed up to a ready and obedient perfor­mance of that which was their ancient known duty, to awa­ken justice, and force backward men to bring in their publick tribute, which though for Gods service their worldliness had rather perhaps were left out or let alone: Due they were before; This vote of publick power onely cleared the chan­nel that the in-come might be it self, and come in fresh and free, without impediment, for which His words and Act reach, we see, fully his meaning.

By occasion of which clause of such import, thus much: Thus much of Personal Tythes, And thus much also for that last binding Act of State both for personal and predial, in 2 & 3 Edw. 6. Behither which is little but the implying Peti­tion of Right, (in the grant of All mens, without doubt mea­ning These,) That other was the last, clear, full, expresse, purposed and direct binding order. Not yet of no force; Even for it self; though the chief strength (beside the Le­gislative power of the Land, here drawn into Act) is in a­broad and before; The Root that supports and cherishes most powerfully (both predial and personal still,) laying farther in the Right created by ancient Constitutions, deeper then possibly can be thought by any new declaration. For we shall seldome meet with a tree that planted the last year hath at­tained much strength; It must have time to root and settle, before it can be able to endure the shock of a tempest, or make good its being against any forceable opposition: So the best and usefullest Constitutions of State are those expe­rienced firm ones, that have lived, summered and wintered with us, as we say, and given approbation of their agreeing with the soil by having safely endured there all influences; Settling and gathering strength, (as it uses to be, and Must) by degrees, and in and with time clasping in fast to be made one, & co-incorporate with the soil of a Re-publick. Rash de­crees use to be as soon revoked almost as made, bespeaking [Page 211] little but uncertainty at first both to themselves, and all things and persons that they are conversant about: Blessed are the days when the Aged decree Judgement, the ancient and ex­perienced good Laws, I mean, are made the sure and constant rule of Righteousness. And even this Humane Ordinance hath so much in it of Divine, that it partakes of toward his nature who is Constancy and Immutability.

CHAP. XXVII.

BUt to go on to the mentioned Petition of Right, a great and bright star shi­ning hithermost and very clear in the firmament of our Law; whose allow­ance vulgar apprehensions still gaze at for the great and onely stabiliment of all, as indeed an excellent and needfull stay it then was, when it was, of the subjects tottering property: But to look upon it as the onely bank and bulwark against tyranical invasion, both the settler of Right and Giver; the knowing know there is more then twice ten times as much dispersed abroad (though in latebris to plain English Readers) as this, Nor could the supream pow­er without breach of trust, and transgression of duty have before, (and so it may still) invade the peoples Right, or without injury have then (and so it may yet) do injustice and unrighteousness. A Bond this was upon the former Cove­nant, a new lock added to the former bolts and bars to keep out invasion from above from protectours, now explicitly, purposely, newly, and afresh confirming to all their old Rights, (no more,) And say which: The Merchants right, the Gentlemans Right, the Noblemans, the Free-holders, and why not also the poor Scholars too? the Church-mans too? whose work is Church-work, and his Trade and Cal­ling publick, holy, heavenly duty: that so having his Due, [Page 212] he may the better do his Duty, having his Right, people may the better look for Theirs; and having his property to live on (his Living) secured him in peace, and with assurance, he may now [...]. That ye may wait on and stick close to the Lord, 1 Cor. 7. 35 serve His Lord above Alone; and having nought of this vile, yet necessary world to interrupt and stop his course, he may now wait upon Him [...]. Not whi [...] ­led and turned hi­ther and thither, (as men: [...]se that are distracted with cares how to live;) for violent are the pullings of flesh & bloud to preserve it self, and self­loving nature will look about before it yeeld to be sup­pressed or choaked. But that ye may attend this Thing alone, and serve your now onely Master without a­vocation, ib [...]d. without distra­ction. The rather considering what a prosperous and lucky hand he had in helping to procure as well the Charter, as this Petition, much of reason would stand on his side, that he should gather some of those grapes himself had helped to plant the sciences of, he should partake of the harvest he had sown, and reap some fruit of his own successful impetration; at least to have his own Right secured in that he helped to ob­tain to All, The Petition of Right. The title whereof gives: Petition exh [...]bited to his Majesty by the Lords Spiritual and Temporal and Commons in Parliament assembled, concern­ing divers Rights and Liberties of the Subjects, &c. and The Contents, Humbly shew unto our Soveraign Lord, &c. (the persons before,) That whereas it was declared (34 Edw. 1.) that no Tallage, &c. yet of late divers Com­missions have issued, &c. And whereas by the great Char­ter, &c. no Frée-man may be taken or imprisoned, or It might have been by the same reason, Whereas the Church had some sp [...]ciall rights, and those contained in the Charter; Also priviledges and im [...]unities gran­ted there, &c. as before; Pray they therfore every man or sort of men may have their Own: [...]nd as much was after allowed under the generall word of Rights, and ac­cording to the Laws and Customs of the Realm. be disseised of his Frée-hold and Liberties, &c. but by the Law of the Land: yet, &c. And some other things touch­ing life, &c. Now they pray that the like may not be done hereafter, &c. All as their Rights and Liberties according to the Laws and Statutes of the Realm; and that all Of­ficers and Ministers serve in their places accordingly. Whereunto the Kings answer being, That Right be done according to the Laws and Customes of the Realm, and that the Statutes be put in due execution, that his Subjects may not have cause to complain of any Wrong or Oppres­sions contrarie to their just Rights and Liberties; This not satisfying, upon reply this second personal answer was added, Soit droit fait come est desire, Let Right be done as is desi­red; And this after expounded to be mistaken, if it were drawn to any other then the Ancient Rights and Liberties, which he willed, and no more. Where still we find Rights [Page 213] sounding all along, and concession of Them, and in answer to such a Petition, the particulars are within the possible and easie view of every English mans eye, and they fitly All march under the Head of the Petition of Right. Now then I in­fer and argue: What is that was here granted? Was it not Right? Right to All? and one mans Right as well as ano­thers? Did not the whole Commonalty petition? Were not All heard? Was not All granted, and to All? And if those that wait upon the Temple of the Lord in England in his ho­ly Service, had thereby then, and yet have, they and their successours an Own and Right, was not this then meant to be granted? and was granted and settled upon them There­fore thereby, nor can be revoked, but by the revocation of this, or a part of this Concession of Right? Each mans wrong is of the same nature, guilt, injury, crime, and grievance, Nor can they ever be interpreted but partiall and unjust sha­rers of such a claim to themselves, as, Any others having e­quall part with them therein, they can be contented earnestly to strive for their own, and will not be denyed, but for those others, think they may be excluded, (or help to exclude them) at pleasure, and no matter whether they partake of any share in the common allowed stock of Right. As if it were Theft to steal, but not from some: Injury to defraud, but the Red or Gray Coat, not the Black: The Law must hold in some cases, what need it in other? to retain him in possession of his Right that hath nine parts, but not him that hath right to the Tenth; One mans Own may not be taken away, nor in­juriously invaded, but his Neighbours may, (that holds by the same Charter,) and himself outed, or spoiled, or wronged at pleasure, and That shield is large & strong enough to protect against al assaults the former, for the later is infirm & narrow, though it were seen to be made of the same breadth, strength and firmness. What equity is this? Should not every ones case that is the same be alike, and every Childes part equall in the same stock of the Common-weal [...]h? Murmurers were in the Apostles time, and discontented fault-finders no doubt in ours; But let no private worldling be heard as speaking reason, that Right is wrong, or the expectation of this Right [Page 215] is now to him and others grown burdensome. There is none fit to judge, who is able to say, Any part of the Law is Bur­densome. Exactions are burdensome, injuries are burden­some, oppressions, spoliations, depraedations, undoings of those that are innocent and quiet in the Land, All iniquity is generally burdensome: But the Law is a gentle yoak, justice lovely, Right a favour, the dictates of these never were nor ever can be truly Burdensome;1 Tim. 1. 9, 10. Unless, as Gods Word says, to the disobedient and lawlesse: [...], to the irreligious and sinners (that have no true fear, or wor­ship of God, for this would teach to obey every Ordinance of Man for the Lords sake;) [...], to unsanctified and profane men (that have never known true purication, whatever they pretend;) patricîdis, matricîdis, homicîdis, (fit company, 'tis pity they should be parted;) To Whore­m [...]ngers, also to Plagiaries, deceitful lyars, forsworn lyars, and such other; To all these the Law is Burdensome, Blame them not, they are weary to beare it, 'Tis a beam to their backs, and lays on fast and close, wrapping them under ever­lasting as well as heavy inconveniencies: But that the Law is burdensome to any Just man, can hardly be believed by any wise man. 'Tis Gods great blessing to a Nation, it makes rich, happy, safe, and quiet where it comes; An humane O­racle for deciding humane doubts in matter of own and equi­ty amongst men, the voi [...] of Justice, the measure of Right, that gives to every one [...], every one something, most men enough, all whatever they enjoy; Allotting upon grave con­sideration what they should have, why they should have, how much they should have, why no more, and generally upon good reason, why things throughout Be as they Be, (if our wisdom drew deep enough to fathome the reason of her pro­foundly prudent consultations, resolutions and dispensations) and shall we yet say, That Law is burdensome? My neigh­bours will is burdensome, his covetous desire is burdensome, his unjust, wicked, worldly ambition may be, to sit Umpire on my estate, to inquire what I have, to determine I have too much, but I shall have less, the superfluity of my abounding right (which is but one part of ten to keep me alive to serve [Page 214] God in his Church already, whereas he has the other nine to serve none but Himself, or perhaps Venus, or Bacchus, or Mammon,) must be pared off to piece up supplies for his riot and prodigality, to feed the greedy worm of his covetousness, or rather to help fill up the wide and insatiable gulf of his craving ravenous and cruel soul; This were indeed, what were if this were not heavily burdensome? But shall I serve the Lord Christ with such an inside? Shall I profess my self a Church-member, yea, a member of Christ, the Childe of God, and an Inheritour of the Kingdome of Heaven, har­bouring in my bosome a nest of such unreasonable, griping, cruel, carnal lusts? Shall I go on to read the Scripture, pro­fess the Light, hang on Jesus Christ and all his Ordinances, with pretended love to his Law, and grudge or subtract any mans known worldly dues, refuse to give every one his own, detract from the humane ordinance, and dare say in any case Right is wrong, or Law burdensome? Shall my turbulent, greedy, envious, unruly passions prevail with me so farre to make me think my neighbour has too much, though it be his Own, I must covet it, I will have it, Nay, Gods Minister has too much, of his known Right, I cannot temper but I must covet my neighbour goods, That neighbours goods,Let a man so account of us as of Ministers of Christ, and [...]tew­ards of the myste­ries of God, 1 Cor. 4. 1. Gods Ministers Right, Rob the Church, yea, perhaps rob God, and starve, or occasion the starving of souls by withdrawing that which should warm the bloud and quicken the bodies of those should and would feed souls in present, and discourage those that are to come in hereafter? furthering in the least degree or upon any pretence by my wilfull parcimony, that the thing we have so long feared, may at last fall upon us, That chil­dren may cry for bread and there be none to give it them, a worse famine may pinch us then that of bread and water, even a famine of the Word of Life, that hungry souls may run hi­ther and thither for meat, and grudge being not satisfied; from Parish to Parish, from one empty Church I mean to a­nother, for the Ordinances of Life, and none be found in Sion to comfort her children, a well-instructed Teacher in England be as rare as was a man in Israel, and because no more means is left to sustain his natural life, One Preacher [Page 216] must serve for twenty Congregations. Away Pluto and Mammon! Let Judas and Achan be for ever separate from the Congregation of the Lord! Cursed be Ananias and Sapphira, and all their brood! Let their posterity never find fig-leaves to cover the shame of their sin in this world, nor a­ny thing but Gods mercies and Christs merits to shelter their guilty souls from condemnation in the world to come. Let me have ever light enough to know mine Own, Justice to give every man his Due, Religion to direct, I Ought to do so, Pru­dence to measure it out by the onely wise and safe Law, and either cast away my Bible, (Gods Law,) out of my hands presently, or cease eternally to covet my Neighbours goods. One word also in the spirit of meekness, to him not hitherto thought of, that is, I take it easie enough to be led, but as it falls out miserably out of the way, that follows the light of his eyes, and they guide him to errour, urging the Petition of Right for every ones and his own, and yet crying down tythes thereby, which being a Right can certainly have no discountenance, but must rather have a firm, consequentiall establishment by that Petition. Philip, Philip, understan­dest thou what thou readest? Do but say, I pray thee, what is it thou so importunately callest for? Is it not for Right? Civil Right? Every ones? Thy Neighbours as well as thine own? And Christs Ministers, if he have Right, yea, Civill Right, hereby to his Tenth, as well as thou to thy Nine? If this; why pervertest thou the right words of the Law, de­stroying again presently what but now thou buildedst up, and by or with thy hoarse and importunate out-cries for this Pe­tition, endeavourest to cry down tythes thereby, which be­ing a Right (sure Mans right is not Gods right) cannot but have thereby a clear and evident confirmation. Is not ones mans right of the same kinde with anothers? and as good as anothers? Must not thy Pastors have been included in All? Or, couldest thou be content to have his little portion un­derstood at least to be struck out of this book of temporal life to augment thy part, to a proportion of ninefold bigger then His already? What equity were this, or shew of Consci­ence? Suffer I pray thee the word of exhortation, and be not [Page 217] offended if I tell thee the truth: If thou be a Christian in­deed, thou wilt not entertain a gentle reproof with disdain, nor repay meekness with rage, storming at him that would by the grace of God, and according to the light given him, deliver out nothing to thee but the words of truth and soberness. Ask thy Lawyer, and he will tell thee: Advise with the Lear­ned in his own profession: Consult with the Potter about the things of his own trade. There is never a Judge at West­minster, never a Serjeant in their Innes, never a learned Councellour or knowing man in this Land, but will assure that tythes are as due (besides the rules of equity, for work, and generals of Scripture, for competent maintenance) by the Law, the rule of Civil righteousness among us, to their due receivers here, as any rent, or rent-charge, debt or bond, (not a benevolence, but a strict Right,) and that the settled and compleat body of the Law doth with as much unanimity, evidence, constancy, and aged consent agree to settle and say so for them; and yet doest thou contend, and urge a publick grant of right as an argument to destroy them? Those sages are wise; They will not deny their books; They cannot deny this; Thou must consent to it; Thou hast nothing to say against it; Where art thou now? On Gods side, or on Baals? for Christ, or for Mammon? For Righ­teousness, or Ʋnrighteousness? Wouldest thou but have e­very one have his Own? Doest thou not covet thy neigh­bours goods? Wilt thou own the power of as much Reli­gion as in one verse of one Chapter of the whole Bible; Ren­der therefore to every man his due, Rom. 13. 7? Keep to this, I desire no more: I know I have gained with thy honesty, thy sure vote for tythes, and for ever hereafter; Hold to this Concession, and be constant, thou wilt never hold up an angry hand nor finger against them, or but for them, unless thou change thy minde to petition against the petition. Thou wilt not I suppose be wiser then the Law, mangle the Royall Grant, or deform that Petition of Parliament: If thou do, 1. Thou art unjust, because not impartial: 2. Inconstant, because even now thou chosest to submit Hereto, and madest use of it: 3. In plain terms little better then a fool! Bear [Page 218] with my plainness, thou wilt rather thank me for it, when thou shalt see I intend not Reviling, or Reproach, but ne­cessary home caution and admonition. Resolve with thy self, There is none so highly such, and dangerously too, as he that thinks himself wiser then the Law: Which is, as a Lord Chief Justice said, Summa Ratio, the strength and Quintessence of Humane reason applied to the common good; and what must He needs be then that goes on the contrary part? that un­dervalues it? that opposes it? that censures it? and in stead of obeying the Oracle, quarrels with it? Laws are made to be reverenced, not disputed of, obeyed, not judged, submitted to, not censured by every forward man, scarce by every Con­gregation of men, scarce by knowing, wise men: and who is he then that of his own private head dares busily controul and censure? abrogate and revoke, repeal and establish the whole or a part, (as much as seems good unto him, be it what it will) of a Wise Parliaments Petition, a dead Kings Concession, the Statute Law, the Canon Law, the Common Law, that whole body that hath ruled all actions and possessions here? Thinking, such a part may be changed, another spared; The great Charter was well thought on in some things; The Petition of Right was part as it should; K. Edwards old aged and reverenced Laws, that had so many requests made for them, so many bloudy battails fought about them, and were wrested by the people into the Coronation Oath, may now be advised of: I see a way, not spyed by any since Christianity came hither (and yet they had the voice of the Spirit, in the Word of the Gospel) of Civil Justice and Righteousness, I will make Laws, change Ordinances, re­verse Rights, new-mould properties and dominions, &c. though all that is be troubled, &c. and the Petition for every mans right shall not hinder: What arrogance is this? What intolerable presumption? Does it become a private man! a single man! a simple man! Any man! Were not obedience better then this sacrifice? To be ruled by the Law, better then thus to quarrell about it? Say but this one thing, Every man shall have his own: and I have obtained my end, and wish all unsaid hath (to thy offence or otherwise,) [Page 219] not tended hereto. Say but Right shall be done as is desired, (Soit droit fait come est desire, as the King:) I will not be wiser then the Law but follow it: I will not judge the Rule, but be ruled by it; 'tis the blessed Ordinance of God, where­to I ought conform, and must, and will, ingenuously, and ful­ly, the whole and every part, and then we are met and friends. Especially the Petition of Right, let no one be defrauded of his part of that, No One, and then be the issue that God will give.

CHAP. XXVIII.

ANd now it may be time to look forward, but first a glance or two backward, that we may not lose our selves, to see the way we have already gone. I hope it is either made evi­dent, or at least much hath been said for it, that Tythes are Civilly, Politically due; They are so, for they have been given; they are so, because that gift hath been confirmed: comfirmed by the common Law (in its Cradle:) confirmed with the confirmation of King Edwards Law, confirmed by the Church Law, of Au­thority sufficient, and now lastly by the glances of the State. But by-blowes I confesse these last, yet as they have been set on, I hope reaching home, till of late some were direct in Henry 8. and Edward 6. time, (yet of force;) and so is also the Petition of Right, it being taken they were before a Right. Descend we now from publicke to private, and see what the Sages have said, who are either Law, or after next to Law. The Romans had their Responsa Prudentum taken into the Digests which although they were at first but the issue of private thinkings, given by single men upon occasion in decisi­on, yet with time they got credit, and being found usefull, and meetly well agreeable with reason (the great Standard even of Rules,) They were at last taken into the Rule, and ur­ged [Page 220] as the twelve Tables, or the Senatusconsulta, of original and ruling Authority for themselves: So and by the same de­grees have some mens credits and savings been advanced with us, whose ipse dixit is next to Oracle, and their private voice so highly advanced as to be for Authority and Rule next to the Publick of the Kingdom. We shall not be long nor curi­ous in this search; for still the Publick speaks lowder to Credit then any Private; and why should we care much for Silver, when we had plenty of Gold before? or look after even the Judges, when their Masters stood ready, yea the Rule of the Judges Masters in publick Agreements subservient to justifie our Assertion and undertaking?

And Lord chief Justice, Cook is here first, (for we will now take leave to proceed ordine retrogrado according to licence reserved) He is now become almost a good Authour; but be­cause his opinion and practise are both in fresh memory with many both as to Pleading, Councel, and Judgement, the less would therefore be said of him, because known. In 2. of his Instit. alone he so comments on four ancient Statutes, sc. pa. 489, 490. Circumspectè agatis, pa 610, 611, 612, 619. Articuli Cleri, pag. 619, &c. the 18 Ed. 3. 7. touching the Scire facias from the Chancery, and that pag. 648, &c. of 2 Edw. 6. 13. that none that knows the occasion can well forecast any doubt of the event; none that considers the Text can much doubt of his Comments, unless he will make so cross and absurd interpretation of his likely meaning, as that he chose his Theme to go against the Suppositum, or meant to darken and contradict what was taken in hand to expound and illustrate: such were Commenta indeed rather then Commen­taries, strange inventions: but He raised his Doctrine accord­ing to his Text, and prosecuted it punctually, as he had raised it. Let them heed him well who alleadge him frequently, ac­counting him Authority in one part as well as another, or else the World will account them I know what, Partial, I mean; That All; and that's true enough, That they do but in stead of representing his sense fully as they finde it, pervert it, pick­ing a Posie perhaps of the sowrest flowers, and leaving out what is not to their advantage, or to their disadvantage, insi­nuate, that is not, which perhaps they would not have. Sure [Page 221] he thought, spake, wrote, and judged, that Tythes are civilly due, when he shunned not to declare they were every where due,Report 2. fol. 49 6. in the Arch-Bishop of Cant. C [...]se, avouched by a London Mini­ster in his late an­swer to a Do [...]bt about the a [...]ienati­on of Tythes, p. 17▪ And in the same Report fol. 45 in the Arch Bishop of Winch. Case, alledged by Spelm. de non [...]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 isBy Dr Co­well in his Inter­pret. in the word Docto [...]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 ofDial. 1. cha. 2. so. 11. And in the new additions to that Book printed. 1531. He tells us; In the Kings Bench & Com­mon p [...]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 'twas settled, and the Constitu­tion prevailed,) And he gives reason for all: For 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 [Page 222] 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 HeLib. 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 thingLaicus igi­tur praesentat ad Ecclesiam vacantem ut praesentatas Ecclesiam Regat, & Episcopus eam dat, sc. praesentatum admi [...]tit ad Regimen, & inst [...]tuit. Bracton. l. 2. c. 23. f. 53. implying duty, and ground­ed [Page 223] 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 majoribu [...] 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 Indicavit, and ruling power thereof, he yetLib. 5. ca 17▪ Sect. 9. pag 330. makes the bottom, after discussion in the Kings, to be the Churches Court; and as that shall sentence such or such a Patron to have right or wrong in the Advouson of Tythes, so after the binding sentence, though regulated before, must be formally given in Curia Christiana for them. 9. In casu autem quo Rector Ecclesiae impeditur ad petendas decimas (saith he) in vicina Parochia per prohibitionem de In­dicavit, habeat patronus rectoris sic impediti breve ad peten­dam advocationem decimarum, & cum disrationaverit, proce­dat postea placitum in Curia Christianitatis quatenus disrati­onatum fuerit in Curia Regis. The final sentence must be here, [Page 224] though the discussion be elsewhere, as upon a Verdict at the Assizes the Judgement Posteà is given at Westminster, though the Triall were in the Country. Afterwards, then which no­thing is plainer, treating of Exceptions to Pleas, among the first is the CourtLib. 6. ca. 36. Sect. 7. pag. 428. Erit igitur à digniori incipiendum, sicut à Jurisdictione judicantis & persona Judicis, cum ipse sit pars principalis Judicii. And what is that? it follows,Cap. 37. Sect. 3. p. 429. Cum autem diversi sint Judices, aestimare debet quilibet an sua sit Juris­dictio, ne falcem ponat in messem alienam. Iudex autem secu­laris de rebus spiritualibus cognoscere non debet. (The greatest reason in the world) Decimae autem in quantum decimae, & res testatae in possessione testatoris tempore obitus sui existentes, &c. in foro ecclesiastico debent intentari. In a near case indeed, not: as if the Tythes have been once sold, for then Per vendi­tionem jam translata est spiritualitas in temporalitatem, & quo casu locum habebit Regia prohibitio ad inhibendum judici­bus ecclesiasticis ne in cognitionem hujusmodi catallorum pro­cedant, &c. If sold, they change nature, and by consequent Tri­all: and much there follows of such prohibition and permission, but of Tythes as Tythes nothing but as before. FromBefore p. 202. Bra­cton (to come to him next) four of five places were given before for permission of Jurisdiction decimal hither, which have all their use here▪ to which may be added this one, (for those I re­peat Not, but remit to them) which speaks thus. If a Clerk wrong another of Tythes, a Prohibition shall not lay ('tis in the Trea­tise of granting Prohibitions,) because there is no wrong to the Patron in his Lay fee, which is his Advouson;Bracton. l 5. tract. de except. ca 10. fo. 408. Sect. 6. Item locum non habebit prohibitio de recenti spoliatione, ut si clericus clericum spoliaverit de decimis vel aliis de quibus cognitio pertinet ad forum ecclesiasticum, quia de hujusmodi restitutione non generatur praejudicium patronis, quantum ad jus advocationis. And this granting the scene of Triall is still upon the matter a granting of all: the sending for Triall to where before it is known what will be there said, a virtual ap­probation and confirmation of what shall be there done; As he that refers to the Admiral Court does, upon the matter like and approve the Civil Law so far forth there ruling. And our state having many Rules de pactis, but few de legatis, or of [Page 225] Wills themselves, sending, in its Own want, to Another place, and willing the Rules of the Canonist or Civilian shall take place, does interpretatively speak further, That what is there done and decreed is just, and by it self approved; Even so the party grieved appealing to the Temporal Court, making his Case known there, Praying relief which is denied, His tenth fliece or sheaf are like to be taken away, and upon Complaint, nor Parliament, nor Common Law afford him any comfort, but their Ministers or Consultations and Resolutions send him back to where the taking away shall be allowed; What is this but mediately, remotely, and implicitly, but fully to approve of what is there done? For they are presumed willing to do justice, and known able, but not interposing, do consent and partake in the decision they order to, be it where and whatso­ever. So that it is no vain suggestion so often repeated, and ne­cessary to be always understood, that the making good the Ju­risdiction is the securing all, for all comes along with it, as Ma­homets Alcoran will bring a long Tenths with it to Religion and for Conscience in way to his Paradise, (but no Wine upon earth) and as the entertaining the Jews Law includes Circum­cision, Passover, Pentecost, the Sabbath too, and even Deci­mals. And so have been the proceedings with us, That Court, and those discussions have used to bring in Tythes effectually, and not but ever; Ask either the Lawyers or Owners, they who did judge or were judged, They both found the transpo­sition of Wealth and Riches to be accordingly: Prohibitions if they were often granted, were seldom asked, and always deni­ed, but if according to these Rlues: The Judge was Lex lo­quens, the speaking Oracle, and nor did, nor would oppose, or speak or do otherwise: & to their cost always men found it to be most true. In the Manuscript before mentioned, with Magna Charta, and the other old Statutes, are also the Writ of Indi­cavit, and many other such Prohibitions grounded upon the same Reasons that are alleadged in the Register, and leading to the same end, sc. of with-drawing Lay-inquiries from the Court Christian, the subject matter whereof is mostly Tythes, which shews they permitted in other Cases the Triall to go, where it would, and certainly did carry them. In the usuall [Page 226] Registers are inhibitions enough composed so, that none of them will vary any thing; they areEt dicitur ideò Breve quia rem de qua agi­tur, & intentio­nem pe [...]entis pau­cis verbis brevi­ter enarrat. Bract. de Action ca. 12. Sect. 2. Briefs, and give the Brief of the thing in triall: In the Book of Entries The Declaration sets forth great Complaints for suing in the Court Christian for tythes of Oakes under the Title of Sylva caedua to the di­sturbance of the King, &c. but meddles no further, fol 226. & f. 489. Restraints there are enough for suing forFol. 483. Annuities because they were De catallis & debitis quae non sunt de testa­mento vel matrimonio, &c. in laesionem coronae & dignitatis no­strae: but Tythes are spared, not a word of them. So far Fol. 488. Debts, alleadging this reason, and under this danger, Ma­chinans nos & coronam nostram exhaeredare, & cognitionem quae ad curiam nostram pertinet ad aliud examen in curia Christianitatis trahere: so for defamation, so for demanding Tythes of Lands discharged. But not else: so for recovery of TythesFol. 489. set out, and become Lay Chattels, yet so as in All still, no pretence was to impede the Jurisdiction of known due Tythes; but if the Court were extravagant, and would med­dle with what was Lay, then clog it with a prohibition that it might not exceed its bounds; otherwise let it go on and pro­ceed freely and fully without any manner of disturbance. And this I say, hath been the known way of proceeding; view their Books, ask the Lawyers themselves, they will allow (though they may finde some fault in my expression) the reality of things, and that what I aim at is right, though I may faulter in the way of expression: Nor is any thing more certain then the Restraint of their Restraints, the Prohibiting of their Pro­hibitions, that they should not step forth to hinder the Court Spiritual in that was such, or belonged thereto, the certain Consequent whereof was a known Recovery, and translation of one fliece, sheaf, lamb, or thing whatsoever of ten, from one man to another. This was a little extravagant, but I pro­vidently forecast, and conditioned not to be tyed too strictly to Rules of Method though of mine own making: Too much exactness may be as incommodious, as altogether loose: This belongs to what I was upon, the Jurisdiction of Tythes, and thereby right: and to the reflections of the Temporal State, as it stood separate, and favouring glances (of which sort onely [Page 227] is all in this Cell we may properly look for) and these, though not alleadging one quarter of that is, seem to make good what was undertaken abundantly.

CHAP. XXIX.

AND this of the first branch of Donation, made out by many subsequent confir­mations, before, under, by, and since the beginning of the Common Law, as well before the Conquerour, as since under these four heads of, 1. The Confirmation of K. Edwards Laws, (wherof these were a part:) 2. The Church Decrees, (authori­sing the King, licensing the State, looking on and approving all the other power that was:) 3. The Acts of Parliament, such as looked this way out of their direct way from the great Charter to the Petition of Right, inclusivè:) 4. The Learn­ed Expositors, taken for Oracles of Law particular, as Cook, Fleta, Bracton, &c. Adding some hint of proceedings accor­dingly, and especially asserting throughout the Ecclesiastical Jurisdiction for them, which will alone induce and make good all the rest. All which together has been so much, and the Roots of this Right so far shewed and evidenced to be spread hereby, that few mens estates I beleeve can hardly shew, or colour for the like, and yet the men possess and en­joy what they have in peace and firm security: for through all the good old Laws of the Land these roots are hereby ma­nifest to have been dispersed, and as it were through every part and member of our English State and Corporation; Fees, Socages, and Serjeanties are but of yesterday, the Children of Power rather then Right at first, and take their ut­most date on this side the battle of Sanguelac, besides age and to us unusefulness, affording other infirming considera­tions enough; Mannours and Fee-farms of not much grea­ter reason and equity; and both Copy and Free-hold chiefly [Page 228] grounded on (as they are come to us, & understood to be pos­sessed) the Word of the Law: But these were voluntary Concessions of the highest powers, in their solemnest meet­ings, long since, upon so reasonable consideration, as to e­stablish the doctrine of the Bible, (and so they yet stand to beare it up like the pillars that supported Solomons Ivory Throne,) Behither and beyond the Conquering day have held up strong and fast in despite of all storms that have been since our Nation believed the Bible, (whether to de­cay with it time will shew,) and if the reasonable and con­tinued, willing and authorising powers of the Nation, all of them, could by their pactions (the surest ground) create a Right, Here it must be Sure and Firm, such as the like is scarce to be found again in our Community. All could not have been deceived, nor force in every thing 'tis very like mis-placed: Laws, Canons, Acts, Ordinances, De­crees, Statutes, could so many effectual, and in other ca­ses sufficiently made Rules of Right be here made, and yet not made, and yet have born rule with obeyed power? If Civill Right be stood upon, could All so Many operative and continuing causes thereof have wrought from time to time kindly and vigorously without any effect, or but Must contribute and do what humane Pactions and Concessions could, or any thing below the footstool of Gods Throne? The Divine Right I confess is of another sort, more awful, it separates clearly to an higher kinde, and we look upon it as (more venerable,) founded in God, and partaking therewith of his constancy as well as holiness, must be al­ways without shadow of change the Same, Nor can be tou­ched upon rudely with profane hands without a Relative violation of that Majesty above from whence it proceeds: (And Therefore men should be very wary how they affixe this seal of Heaven to every Imagination of their Own, stamping the Character of Divine Right upon disputable o­pinions, entituling God thereby to their perswasions, per­haps errours of fancies, and but what they strongly con­ceive must be Thus of equall authority with Divine Ora­cles: Highest presumption!) But speak of Humane Right, [Page 229] what has its firmness whence▪ all lower titles and inclosures have, the agreeing Acts of Men, and Mutual Humane Stipulation; Of this sort I believe we shall seldome finde any thing better grounded or faster settled then This, (And if seconding and conspiring rules of common equity can contribute any thing to the backing and strengthening of what is so placed and settled, these not wanting neither) and by as good title as any men have any thing with us, our tribe of Levi has here in England the same to the In­heritance of Israel. Equail in this too, that 'tis as good as the best, and if we had any better or higher, this would no doubt come out with the highest: But we have none; Our Tribes pretend not to a partition from Heaven; nor Dominion, or Property, Lordships, Mannours, or Honours to any thong to be cut out by but inferiour, lower, incon­stant rules of arbitrary good Will and Pleasure, guided by compact and Humane Wisdome; And therefore Levi hath no reason to take it amiss if in this he be not preferred a­bove his Brethren to a right of another sort (if it should prove so) and higher strain having a touch of sacred and extraordinary, sealed from Heaven; But rather bless his God if he have done full out so much for him, as for o­thers, (and as he did anciently heretofore among his own people,) giving him an Equall Highest Claim and Right with the Best, and as near Divine as any of his Nation. Which is both done and cleared certainly, and should serve his turn sufficiently and abundantly.

CHAP. XXX.

NOW proceed next to other helping supports amongst men, firm enough in other cases to create Right, if these hitherto should fall short of reaching that aime, though of their nature they seem not so well and aptly pro­portioned to so good an end, and they are Possession, and Prescription. A­gainst which many things have been said by many, chiefly this, That they seem but a kinde of necessary Politick devices for advantageous peace and as it were Quiet injury; settling many a man in that he hath really and truly no just title to, and by consequent wedging Him out necessarily upon whom that right was devolved, or in whom it is inherent: Which yet notwithstan­ding, and all that can be said against them, they doe pass, and are allowed, and a man is thought rightly to possess and enjoy what by so, and no other means is come unto him or seated and settled with him. For though it may seem most reasonably Mine, (and is,) which another makes over un­to me, or which fals to me by inheritance from another, or is escheat, (that is, reversed) or purchased, or given, &c. wherein by the contrivances of the Law, and reasonable devices of honest wisdome, that title which was really and truly existent in another is conveighed over unto me and ve­sted in me, and so I have, as 'twere by removal, His right; yet when I shall have and enjoy any thing upon this naked presumption, That it is Mine, because I Have it; or, I ought, Because Long I have Had it; These as they are with cautions and limitations served in, do not onely put an end to many differences, and to more advantage then [Page 231] what has more of strict right in it; But having Law on their side, do no doubt bring along a true Right with them, and I may, by reason of that Law, (the foundation of All right,) have, enjoy, possess, defend and keep against all men, what is but so settled upon me, upon these and no other pretensi­ons.

The first of which, the second ground in all of the Civill Right of Tythes, is Possession: a good plea in other cases, and so not to be despised here, which Others hold forth as sufficient, and One may as well as another, affording this argument not easie to be answered or evaded; Tythes are belonging to our Tribe of Levi, Placet definitio Aeli [...] Galli, Pos­sessio est usus rei, si modò usum ac­cip as pro de [...]en­tione, five [...]t in his libris scriptū est duobus locis, detentatione, non pro eo quod graeci [...] dicunt, ab usu enim hu­jusmodi possessio plurimùm distat. Paratit. ad F. de adquir. vel amit­tend. possessione. Vid etiam para­tit. ad Cod. lib. 7. tit. 32. Because they have them; They are Theirs, For they are theirs; They possess them, Therefore they have right unto them. For it prevails, (as said,) in Other cases, why may it not also Here? Other Men defend themselves with no other shield, being in, against invasion, or recovery; therefore may these: And if having his little loaf in his hand made up of few grains, Gods Minister account it his Own by Possession meerly, why may he not as well as his neighbour, who holds nine times as big upon this title often and by no other, and yet will not part with it?

But for understanding these things the better, and therewith some other, As of Donation before, it may be no less expedient to premise here sundry things also of Pos­session in general; The nature of it, the force it hath, the equity thereof, and sundry other such things, that so the generall doctrine may a little strengthen that particular we are to insist on.

Possession then, saith Cujacius out of the Roman Gal­lus, is the use of a thing, if so be we take use for the one­ly holding and detaining it, not for the enjoying and using which are different and somewhat farther. I understand by it that we call Having; as Things Corporall by taking them in our hands, Incorporeall by making use of them upon oc­casion; which when we so Have and Handle the one, or make Use of the other, we may be said to have, hold, de­tain, occupy, or possesse them. Which such having and pos­sessing [Page 232] (to note so much by the way, and in the very en­trance) that it hath been here of and belonging to the Mini­sters of sacred things, as before, and to others in their right, is I suppose doubtfull to none but he that is ready also to doubt, Whether there have been Harvests? Whe­ther the Sun have shined? Whether the four Seasons of the Year have had their vicissitudes? or the Blessings of God been reaped by Men who have in gratitude returned to Himself some of the fruits of his own bounty? I except onley those who are to be excepted, and they are who claim effectuall exemptions; As those that succeed the Templars, Hospitallers, or Cistertians: that inherit a Custom for a Modus decimandi, orOur Books say, A man may prescribe in modo decimandi▪ but not in non deci­mando. Hobart. in Slades case, pa. 297. De non decimando, (if in Corners this hath with us perhaps prevailed anywhere,) and some such other: But for the general, 'tis known the use hath been of as wide extent to set aside One, as to carry home Nine, as diffused as to plow, sow, reap, and feed, And tanquam de jure Communi, as was wont to be put into the Libel for recove­ry, Commonly prevailing all over the Kingdome. The Lord of a Manor hath not more usually taken up his quit­rent once a year, and thereby secured his Right Perpetuall, nor the Landlord his Farmours rent, nor the Merchant his debt, then the Lords Minister these Dues for his heavenly work, (and he hath not been wont to require them of Courtesie, but take them as Due,) or somebody else in his right, and this wall over and everywhere without delay, dis­pute, or denial. Which Postulatum was need to be not proved, but called to remembrance: And this done, pro­ceeding to possession it self, the Great force it has in the world, and by consequent may here, is not hardly discer­nable from the heeded truth of these following Positions or Observations:

  • 1. That it gives Right.
  • 2. Was the first Natural Right.
  • 3. Is a very Right, able to endure examination.
  • 4. Defending it self against all comers.
  • 5. Even against the true owner, sometimes, (scil. at last.)
  • [Page 233] 6. Against whomsoever at any time that hath but e­quall Right.
  • 7. Against all the world still till it be evicted.
  • 8. And enables a man to keep what he could never have gotten.

This force it has, and it seems a great force; The simple assertion was first, It gives Right, And it does so: for in some cases a thing is Mine, from or for no other reason, but because I Have it. If another Had it, it were His, (as now 'tis Mine,) But because I have it, it is Mine, and not His; and it is injury and wrong to deprive Me of it.Iu [...]e natu­rali prim [...]evo an­te quam essent ju­ra civilia, id est, leges, fuit statu­tum, ut quamcun­que terram calca­verit pes tuus tua sit. Gloss. quta naturaliter, ad F. lib. 1. tit. de ad­quirend. vel amit­tend. possess. This Book, That Field, This Garment, or Sword, or Diamond, my Hand gives it me, I have right to it in Conscience, because I have it; and as any other thing is another mans by his plea whatsoever, so these Mine by bare Possession. Which chiefly prevails in vacuity of title: for then, Quod nullius est, id ju­re naturali occupanti concreditur, saysF. de adquir. rerum Dominio, L. 3. Singulorum autem hominum res multis modis fiunt; quarundam cnim rerum do­minium nancisci­murjure natura­li, &c. And of the severall such naturall ways of procuring one is by possession. Institut. lib. 2. tit. 1. sect. 11, 12. Iure autem gentium sive naturali do­minia rerum acquiruntur multis modis: Imprimis per occupationem corum quae non sunt in bonis alicujus. Bracton lib. 2. cap. 1. sect. 2 & vid. Flet. li. 3. cap. 2. sect. 1. Gaius, That is No ones and comes in my way, seems naturally to come home to Me; as Beasts, that are wilde, Fish, Fowl, &c. which if I can take, no one will doubt my right to Own them. Nor skils it muchNec interest feras bestias & volucres, utrum quis in fundo suo capiat, an in alieno Pla­nè, qui in alienum sundum ingredit [...]r venandi aut aucupandi gratia, potest à Domino si is praevide­rit prohiberi ne ingrediatur. Quicquid autem eorum coeperis, eousque tuum esse intelligitur, donec tua custodia coercetur. Cùm verò tuam evaserit custodiam, & in libertatem naturalem sese receperit, tuum esse desinit & rursus occupantis fit. Instit. Vbi Supra. where: for though I might have been hindred coming into another mans Field, what yet I take there is for my self, I might have been keep out, not from my fortune, The wrong was in the intrusion, not in what I have gotten. But then I must fully have it: ForIllud quaesi [...]um est, an fera bestia quae ita vulnerata sit, ut coepi possit, statim nostra esse in­telligatur. Trebatio placuit statim nostram esse, & cousque nostram videri, d [...]nec eam persequa­mur. Quod si desierimus eam persequi, desinere nostram esse: & ru [...]sus fieri occupantis. Ira­que si per hoc tempus quo cam per [...]equimur, alius eam coeperit eo animo, ut ipse lucrifacret, fur­tum videri eum nobis commisisse Plerique putaverunt non aliter cam nostram esse, quàm si eam coeperimus, quia multa accidere possunt, ut eam non capiamus, quod verius est. F. de adquirendo terum dominio. L. 3 Sect. 1. Vid. Instit. Vbi Sup. & Bracton & Flet. if I wound, ano­ther [Page 234] take, He that possesses must onely have the benefit of Possession: and so I must keep, else I have lost what I had gor. So in the wars,Item ea quae ex hostibus capin [...]us, jure gentium statim nostra fiunt: adeò quidem, ut & liberi homines in servitutemr nostram dedu­cantur: Qui tamen si evaserint n [...]stam pote­ftatem, & ad fuos reversi fuerint, pristinum statum recipiunt. Instit. eod. sect 17. Our Bracton and Fleta have also the same. Habet etiam locum ista species occupationis in iis quae ab hostibus capiuntur, &c Item quae ex animantibus domin [...]o nostro sub­jectis nata sunt, eodem Iure nostra sunt: Idem etiam in insulis in mari natis, & in similibus, & in rebus pro derelicto habitis, nisi consue­tudo, &c. Bracton ib. And elsewhere: Posses­sio aliquando jus parit, & pro possessione prae­sumitur de Iure, Id. lib. 4. tract 1. cap. 2. sect. 7. fol. 160. the spoils of an Enemies Camp are Mine, so much thereof as I can lay hold of: Those Captives à Capiendo, orInstit. de Iure personarum, sect 3. servi. lib. 1. tit. 4. & F. de statu hominum, lib. 4. Mancipia eò quod ab hostibus manu capiuntur, because they are touched to Property; Servi also (à Servorum appellatio ab [...]o fluxit, quod imperatores nostri captivos vendere, ac per hoc servare, nec occidere solent. F. de ver­borum signif. l. 239. & vid. Instit & Digest. in locis citatis. ser­vando, non à serviendo, from being kept, not made slaves of,) are all re­duced within the compass or restraint of Property, to bee disposed of as the New Owner pleases; But so long as they are kept again; for if they break out and return again to their former liberty, they are now again their Owne as before, and not His whose they were, who hath lost that whereby he had them. These things maySee Bracton and Fleta in the places [...]i­ted before. have some speciall way of ordering with us; but then gene­rally they prevail Thus abroad, and with Us too in some and most cases; Nor want we instan­ces of Right of Land so gained meerly by vertue and power of occupancy. For although all were originally in the Crown, if out, derived from it, and so upon extinguishment of the derivative title, as Escheat should have naturally reverted to whence it came, yet in some cases and by some circum­stances it proves not so, but a title may beChancellour Bacon gives an Instance, Where an estate is granted to one Man for the life of Another, and the first dye without disposing his Right, Nor Heir, nor Execut [...]r [...]. nor Reversioner can have it, So it is his that layes hold of it. Vse of the Law, pag. 24. See the example as large. gainable and tenable by Entry as they call it, and a man Have and have Right to Land meerly by Possessing it.

2. I said moreover, Possession is the first and naturall ti­tle: Nothing is more Naturally Mine then what I do lay [Page 235] hold of. Justinian Possessio appellata est, ut & Labeo ait, à fe­dibus quasi positio: quia naturaliter tenetur ab eo qui ei insistit: quam Graeci [...] dicunt. Domini­ùmque retum ex naturali possessione coepisse Nerva fili­us ait: cujusque rei vestigium remanere in his, quae terra, mari, coeloque capiuntur. Nam haec protinus eo­rum fiunt, qui primi possessionem eorum adquisierint, F. de adquir. vel amittend. possess [...]in princ. taught me so, and Thence yet, what we take is our Own, as hee has from Labeo. Ecce effectus possessionis, theGloss. Dominium. ibid. Gloss there bids us mark it, and it is re­markable: For even beasts, we see, will rarely exclude the Possessour: They have onely the Law of Nature, they skill no compacts or force of agreement, yet they observe (whence but from natural impression?) for a kinde of right by Ha­ving; whence though their ravin be greedily set, we shall finde they cease to pursue what they see another has got.

3. Yet more: this title is firm and solid and will en­dure the touch of Examination. 'Tis not a fraud or dis­seisin, which are wrongs, and have their known remedies, but a very Right which the Law looks upon and approves, and more then permits, justifies and protects the possessor. If the other are once searched and found, they are lost, but this how much the more it is examined and known; is so much the more approved and justified.

4. Against all but the true owner at first, though the bottome of the claim be no better then in some regard an unjust entry. The words of the Law are such: Hóe Doct. & Stu. Dial. 1. ca 9. f. 19. that hath possession of Land though by disseisin, hath right against all men but he that hath right. Chancellor Bacon Vse of the Law, p. 25. addeth also, that whether he outed any one of his quiet possession, who is properly a Disseisor, Or stepped in after a Possessors death before his heir, who is an Aba­tor; In each of these cases whether Disseisor or Abator possessing and dying possessed, His heir hath gained the right to the possession of the Land against him that hath right, till he recover it by fit action at the Common Law. And if it be not sued for within sixty years after the dissei­sin or abatement committed, the Right Owner hath lost his right by that negligence. If either of these, the Abator or Disseisor, be excluded by a third invader, Is not now [Page 236] this third person, a second Disseisor, his title good against those before, who were no better indeed then Usurpers? Answ. No: For to the two former the Possession gave, besides the present Having, such a Right that against All but the right owner it gives title to be as ground still left to recover upon again: and it shall not be excepted against such a man, He had no right, the thing was never His; For he Had, it Was, and He is to the second Disseisor an Owner and may out him, as having by his former posses­sion, not so Good, an Equall, but a Better and Prevailing title: And this in favour of possession, which to all but the rightful Owner, gives true title, and may not be eva­ded or rejected. The question is put byTract. de As­sisa nova disseisin. cap 7. sect 2. fol. 165. Bracton un­der this Head, Who may grant a Writ of Assise? (the known remedy of a possession, not an usurpation,) and up­on Answer, That None save he that is possessed in his own right, no Guardian, no Fermour, no Servant, &c. Hee replies, But whether then a Disseisor disseised? It should seem not, for he had no title in his own right; indeed None? Yes; though not against the owner, against all else, and so is truly dispossessed, and of his right, and may have his remedy as of a disseisin: and this propter commodum possessoris, (or as Fleta, propter commodum possessionis,) and there is no exception against his wrongful title. Indeed such a one should not recover against the rightful possessour upon even terms, for he wanted ground to fight on, compared and contesting with him, and so things must remaine as they are: But when neither has true right, the possession (com­paratively among themselves) shall create a right with the first to keep as his own, or recover being out, Et Hoc pro­pter commodum possidendi, onely for Having.Lib. 4. cap 2. sect 5. pa. 217. Fleta has the same, and theBracton Tra. sup. ca. 2. sect. 8. fol. 161. former again, Cum neuter Jus habet, metior est causa possidentis: andVid. lib. 2. ca. 22. sect. 1. fo. 52. many other such things which I forbear to transcribe. All which and many such other do together so much favor & strengthen his right, who Hath, that if I am In any thing (onely In) and all the world against me but One Man, (sc. Hee in whom is the True right) yet I shall defend my self against them All, not [Page 237] can be justly outed by any, but shall for Possessions sake and Because I am in, sit fast, (or if I am thrown out, Recover,) and this by Law, which may be bottome, good, and justifi­able enough for me to rest upon, because it settles all things.

5. Moreover, against that one man, the true owner too in time; for They are the words of the most Learned Chancel­lour Bacon in the place before. if the Abator or Disseisor (so as the Dis­seisor hath quiet possession five years next after the dissei­sin,) do continue their possession and dye seised, and the Land descend to his heir, They have gained the right to the posses­sion of the Land against him that hath right, till he recover it by fit action reall at the Common Law. And if it be not sued for at the Common Law within sixty years after the dis­seisin, or abatement committed, the right owner hath lost his right by this negligence. (For, Flet. lib. 2. cr. 60 sect 7 p. 129. Currit tempus contra de­sides & Juris sui contemptores, as is elsewhere:) And if a bastard possesse quietly, and dye so, his Children shall hold a­gainst the lawful Children and their issue. This still in fa­vour of possession: and —Longa­e [...]im possessio (sicut Ius) parit Ius possidendi, & to lit actionem vero domino pe­tenti, quandoque unam, quandoque asiam, quandoque omnem, quia omnes actiones in mundo infra certa tempora habent limitationem, de acquirend. rerum dom. fol. 52. Bracton agrees thereto, that long, peaceable, and continuall possession locks the rightful Owner quite out: for there must be a time to end strife, and he has lost his time of regaining.

6. Yet farther: Where many titles are equall The Possessours is Therefore Best; and if the scales hang even, the Advantage of Being in shall sway the Right also to that side where is the Possession; Not onely the Having but the Right: For it must be always a better title must evict that which is, as if I have footing any where, it must be a strength whose Greater power shall out me, and take possession of my room. Hence theReg. Iur. Ca­non. 65. Canonist: In pari delicto vel cau­sa potior est conditio possidentis: In equality of state the pos­sessours is the better. And theF. de diver­sis Regalis Iuris antiqui, l 170. D [...]m quaeritur d [...] damno, & par utriusque causa sit, (one must lose,) quare non potior sit qui tenet, quam qu [...] per­sequitur? de verborum obligat. L. Si servum Strchiu. n. Sect. Sequitur. Civilian: In pari cau­sa possessor potior haberidebet: much to the same. And [Page 238] when with us one contended for a Wardship, and one posses­sed, upon equal Right neither should have been outed, and then He was well enough was in, He kept what he had. For, Bracton l. 2. cap. 38. Sect. 5. f 90. Non sufficit quòd petentes probent se jus habere, omnes, vel quidam eorum, ad hoc quod auferatur possessio à tenente, nisi sit qui probet se majus jus habere: Paritas enim juris non aufert seysinam a tenente, propter commodum possidendi, & privilegium possessionis. A stronger weight must be to fetch up the Scale when a Possession is settled any way: a parity or equality of Right leaves the thing onely where it was. Again, if an Action be begun onely upon pretence of Id lib. de Exception. ca. 19. Sect 6. f. 418. Et si uterque Ba­stardus fuerit, tam petens quàm tenens, & petens Bastardiam ob­jecerit tenenti, si tenens replican­do dixerit peten­tem esse Bastar­dum, oportet pe­tentem se do cere legitimum; alio­quin nihil capiat, cum melior sit in hoc casu conditio possidentis, &c ib. Sect. 3. And see also before the very end of the Book de Assisa mort. Antecess. Agreeable with Flet. lib. 6. ca. 39. Sect 7. p. 433. Bastardy, and the Defendant put in his Recrimination; The other is what he Accuses; This Plaintiff must both prove his own legitimation, or else all is well again, and shall conti­nue as it is, and which is more, is Therefore well Because it so is, unless there be a greater strength of Reason to alter and remove. For the Law still favours that which is in Being, which shall not be altered for equally good, or unless for clear­ly better; as an Army of ten thousand upon equal Advan­tages in Nature is able to stand upon the defensive against a far greater number, a like force is not like to remove it. Far­ther; What must be done if a man fell his Right to two men, or a pretender his coloured shew of Right for Right, Who shall then obtain? TheBracton l. 2. c 18. Sect. 2. f 41. Flet. li. 3. cap. 15. Sect. 8. p. 202. Rule is given:

Rem Domino vel non Domino vendente duobus,
In jure est potior venditione prior.

The first Buyer had first Right, and shall carry it: agreeable enough to that ofIf a man sell to two persons, who shall enjoy? Iu­hanus libro sep­timo digestorum scripsit, ut si qui­dem ab eodem non domino emerint, potior sit cui priorires tradita est; quòd si à diversis non dominis, melior causa possidentis sit, quam perentis, quae sententia vera est. F. de Publiciana in rem l. 9 Sive autem Sect. Si duobus. Et cum de sucro duorum quaeratur, melior est conditio possidentis; de diversis reg. Iur. l. 168. Sect. 2. Ʋlpian in the Civil Law. Nay, some­times this carries a victory where there is no fast ground to fight on, and maintains the field stoutly, having onely this to say, I am there. [...]Tis in the case where he that has no Title, sues against him that has but as much, and in possession, where can scarce be comparison, neither having any thing, and yet the Possessour Thereby has enough to carry All.Bracton fol, 161. Quia cùm neutor Jus habeat, melior est conditio possidentis. [Page 239] And no marvell again then, if theEt quia longè commodius est possidere, quàm petere: ideò plerunque & ferè semper ingens existit content io deipsa possessio­ne. Commodum autem possidenti in co est, quod etiamsi ejus res non sit qui possi­det; si modò actor non poterit suam esse probare, remanet in suo loco possessio; prop [...]r quam causam, cùm ob­scura sunt utrius (que) jura, conrra peti­torem judicati solet: Iustit. lib. 4. tit, 15. sect 4. ver Retinenda. Emperour observed so much Contention to be for Possession, as that would some­times winde in all the rest, and carry the whole business. These are the favours of Possession when in a double claim the measure of Right is on both sides equal; which seems to be grounded upon that repeated, and so much varied Axiome both of the Canonist and Civilian, or rather upon that reason upon which they both are founded, In favour of Peace, to keep that in being, that is. For if quarrelling men should be hearkened to in every motion, and but upon equal terms be heard with no disadvantage to him that begins the Fray, little would soon be left quiet among men; our nature is so peevish or weak, and many or most herein so very natural, that Con­tentions would multiply beyond either doubt of reason or hope of end, if there were not some publick devices and ho­nest discouragements invented to choke and stifle them at the very beginning; whence prudently he that first stirs is onely assured of disadvantage to begin upon; the uneven Ground must give him so much the worst at first, that if his Plea be no better then his Antagonists, it is in no sort good. If his An­tagonists be but as Cum par de­lictum est duo­rum, semper one. ratur petitor, & melior habetur possessoris causa. F. de diversis reg. Iur l 196. good as his, it shall be better. For, In Fleta lib 2. cap 63. sect. 11. pag 137. paritate Juris prior admittitur defensor quàm pars actrix: In equality of Right none shall be dispossessed of that he has. AndF. de diversis regulis, l 167. Favorabiliores Rei potius quam Actores habentur. If there must any favour be shewed, it shall be to the Accu­sed: and if the JudgesDe rejudicata. l. 38. Inter pares. cannot agree or be equally divi­ded, He that is impeached shall be quit, though he be guilty; for if the Scales hang even, of proof andCum sunt partium Iura obscura, Reo fa­vendum est po­tius quam Actori: Iur. Canon. Reg 11. probability, 'tis presumed for him that Has innocence: still and in all looking as it were with an evil eye upon those that move complaints, and in favourable supposition of that well that is; Hanging back with might and main from alteration upon equall strength (Reg. Iur Can. 56. In re communi potior est conditio prohibentis, both must agree to stirr, or the thing stands) and One shall never draw forward so powerfully to alter and change, that which is, as another with equal strength shall hold back to stay things where they be, because Melior est conditio possi­dentis; if both be, or seem good, the Possessors title is thereby [Page 240] best. Peevish malice is apt to cherish melancholick Dreams of black Distempers every where, but the serenity of clear and firm wisedom is always mixed with that goodness that thinks most things well. That deforms all for amiss, that (looking on with an evil eye) it sees not well. This charitably inclines to believe well of all it findes not evidently ill: whence with a­versation to change as little alteration is made as may be without apparent wrong. That must be not so good but better and truer which is promised, and he that is in possession of 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 saidA 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. 'Tis 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 notHooker 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, 'tis 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 [Page 241] 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 CasesFrequens 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. TheBracton. 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, quàm 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 [Page 242] 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 and notorious. This then laid in to the former, I infer: What hath been said of possession, what can be more said of it, hath it not All force here? Doth it give right, right alone, full and natural right, the most na­tural, the Law looking on, approving and consenting, and shall it have no operation here? Shall the Churches case be singu­lar, & the Ministers of Jesus Christ have no benefit of common [Page 243] axioms, no fruit of those are to all other fruitful operations? Shall they have no favour by that All have favour, no benefit by that All have benefit, the Having their Own in their own hands? and shall that helps others many ways, advantage them no ways? Shall men look upon securing enriching Pos­session, shall wise men look upon it? Shall the quintessence of wisdome in most reverenced Laws, and those diffused all abroad have consideration of it? Nay, shall that little mea­sure of knowledge imparted to tame Beasts, inable them to espy the good, and prompt them to observe the Law and or­der of it? And shall onely in one case the poor Servant of God, that secludes himself from all the world to wait on his Lord in the Temple, nor for his own sake, nor for his Masters sake partake of the common benefit of the Sun-beams as it were, that shine cheap to all others to their comfort and be­nefit? To keep him in that he has, to preserve him from in­jury and spoil, to secure his dear Owne, to render him but so much regard from his fellow as one brute creature gives another, whith will not lightly snatch the prey ravenously out of his fellows mouth, yet more unreasonable men will! Will they? (and plot to undo those that dare but mutire contra?) take away, or keep away I say, from their Brother, Neighbour, fellow-Christian-subject, and Gods Minister his rightfull possession! without regret! without mercy! casting him out of the vineyard, and as good as slaying him! for to strip is next to starve, and that worse then to kill;) not dreading to act over again the mighty mans part against poor Naboth, who had but a little, yet he must not keep that; He that has nine for one already, must have his Tenth also to make elbowroom for his pleasure, or content, perhaps for his Riot and Sensuality. Can this look like good, Christian, or well-pleasing in the sight of God or man! Is any unrighteousnesse, and this not unrighteousnesse! Is any thing unequall, and this not unequall! Is any thing with impious rude and uncivil, and is not this of the worst sort of impiety joyned with incivility and barbarous cruelty! Every man claims his Property, Every one owns his Own, and shall not Ones? Must he alone be excepted? Every one has benefit by it, comfort from it, with expectation (well enough a­greeing) [Page 244] of joy in the world to come; Shall one sort onely be pent up to fast or feast himself with his spiritual apprehen­sions, comforting no higher then with the expectation of the world to come, denyed his own bread here in a Land flowing with milk and honey, to all other the joy of all Lands? If there be no due, I say nothing: If there be, I could say no less: There is something of Justice due to Truth, and the se­riousnesse of things sometimes calleth for sober vehemency. The Law is every ones birth-right: The Husbandmans, the La­bourers, the Tradesmans, the Beggars: Soli ex omnibus Clerico commune jus clauditur! as spake S.Ambros. li 2. Epist. 12. tom. 5. pa. 98. Ambrose upon like occasion, shall they alone that wait on the King of Heaven, have no benefit by Imperial Constitution! The ten­derly regarded Church was wont, and even by judgement of the Law, to be compared to aSee before p. 61. & Brit [...]n. Ecclesia fungitur vice mi­noris, meliorem potest facere conditionem su­am, deteriorem nequaquam: fol. 143. cited by Cook Instit. 1. fol. 431. & vid. Bract. de acqui­rendo rerum do­minio: l. 2. c. 5. sect. 5. &c. 15. s. 1. In proximis in­fanciae propter utilitatem eorum benignior juris interpretatio facta est. Inst. l. 3. de inutilibus st­pulation bus. sec. sed quod dixi­mus. Pupil, (under age and subject to wrong) As much religious Charity or demonstra­tion of true Christian piety to be helpful to her weakness, as to relieve a fatherless childe, whereinPure Religion and undefiled be­fore God, is, to visit the fatherless and widow, &c. Chap. 1. ult. S. James placeth the power of that Religion that is Pure: Are things so much changed? No, they remain the same: Or, are wise mens pious thoughts so much altered, their Pure Religion corrup­ted, themselves set upon Pelf and Mammon, yea, spoil and wrong not declined for conscience sake, that they dare invade anothers, Religion instructs or permits them to take from Religion, strip this Orphan-Church, withdraw from her Ministers, force from their hands, and extort and wrench their very meat out of their mouths, I mean in their rightfull dues, held back, grudged, or squeezed from them by fraud or force? Must not Gods bright honour be darkned, if his Lights goe out? Must they not goe out, if the oile be taken from the Lamp? Can it bee there put without the Levites help? and how can they attend to do it, if that which the Laws of God and man have settled upon them to live on, (in equality of strength for right with all other Tribes) be surrep­titiously or violently taken or withheld from them (for He may starve me as well that gives me not my allowance of meat being appointed so to do, as he that takes it away from me,) and they have no benefit of Law, no not of that whereof all the world hath benefit, and by Law, I may keep mine Own that [Page 245] I have in Possession. Heed every syllable of which proposi­tion, striking in with the interest in common of every One man in this Nation; and if it be a very small thing now that Possession may not be stood upon by some, but they turned out of theirs, or it be questioned whether it may be with­holden, who knows how long it may be ere others—&c. But I forbear. I ominate no ill, I wish nothing but good, I pray they may enjoy their Own who grudge, or quarrell, or want but leave to withhold other mens; Onely I fear that Circular Curse which hathFor it is [...]: a demon­stration of Heaven a [...]stice, or a sign or example of it thus to do: [...], to return Affliction to the Afflicter, or One for Another, 2 Thess 1 5. used to come about, which also I invert into a hearty prayer: Let not, O Lord, the Extor­tioner consume all that They havePsal. 109. 10., Nor the stranger spoil their Labor. Hoc avertat Deus. [...]. Absit. Amen, Amen.

Object. But here comes a great Objection to be answered, How the Churches Person or Man, in the sense before, can be said to be possessed of these things, sith they are known to be in anothers, the Husbandmans possession? He plows, and sows, and looks to, and Has: Much good do it you, saith he then, with your part, sith I have nine and the Tenth, As was jestingly put upon the Sophister, who when he had with much subtil­ty of Syllogisme proved two egges three, was bid take the third for his supper. Ans. Nay, not so neither: Here is more reality, a possession (or quasi possession) of these things, be­yond fancy or speculation: Not of the things indeed strict­ly, but of theIs qui actionè habet ad rem re­cuperandam, ip­sam rem habere videtur. F. de di­vers. regulis. l. 15. Liberty and Right to take them up, and that is possessed continually, even when the things them­selves are not: As a Lord is possessed of a Quit-rent seven years together, and yet he receives it but once a yeare, his right is inherent when the power is not used: Or, as a man possesses a way over such a ground, not by the Land it self, but by the leave, he may when he will, and will when he lists, and that list comes as often as there is occasion, Thus to make use of the Land for his Service. For understanding which things the better, we must have recourse to a known distin­ction, even in Law, or a separation or sorting out possessions into two kindes, of Rights, and Things; Corporeal, and In­corporeall. The one (Corporeal) are possessed but by gra­sping, or clasping the Things, as in our hands, &c. The other [Page 246] Incorporeall (the Rights) are enjoyed, even in the use, or having used, and so continually enjoyed, even when the use it self (the fruit) is not. As the Patron of an Advowson in gross, 1. Has never the Glebe, nor Church, nor Tythes, nor any thing seen: 2. Nor has (it may be) presented these 20 years past, or for these 20 years to come may not, yet still all this while he hath ever a Right to present, (ifVid. Bract. lib. 2. cap. 23. sect. 3, 4. & Flet. l. 3. cap. 15. sect. 16. ever he presented, or had right, which right is lieger dormant with him continually, till he draw his power into act, as he does when is occasion, reaping some fruit of that right which was though seldome used, inherent continually: Even so the occasionall Receiver of Tythes, it may be once a year, or whensoever, has still Jus ad rem, that is, to the taking them up when they shall be, which is the fruit, Though not Jus in re, the continuall actuall perception of them: In short he is possessed fully and clearly of a right to them all the year, but he reaps the fruit of this power onely in the fruits of Har­vest. Much is said of these things both among our Lawyers and the Civilians; But this may clear the thing, how the proprietary hath continuall possession of his right in the inter­ception of use of his power, and yet always leave and pow­er to use it when there is occasion.Object. And this also may pre­vent another doubt wil arise anon about Prescription, which is always founded in possession and more, even a continuance, and how can this be in the interruption of taking up these dues but seldome and as is occasion?Answ. Yes: This may be well enough: for without Interruption, Ever, there is a perpetual right of taking them up when they shall arise: a continuance of claim though the things arise not to be claimed.

But it may be replyed to both,Reply. These things are corporal, visible, quae tangi possunt, within reach of All the senses; And how throng we them up then into that notional airy specu­lation of a right in the clouds;Solut. Such Things should be Pos­sessed actually, or they are not within the Claim of Possession. For aThe redouble upon that is given in answer to an an­swer: a term familiar in Law. Ad replicationem vero sequitur triplicatio, & ad triplicationem quad [...]n­plicatio (one rejoynder farther) ex causa, &c. Bracton de Except. cap. 1. sect. 4. so. 400. & vid. fol. 428. & fol. 242. Replicatio est, &c. & contra replicationem datur triplicatio Reo, & iterum quadriplicatio petenti. Flet. lib. 6. cap. 36. sect. 10. pa. [...]8. Triplication to which reply, Yes; so they may [Page 247] indeed; The Things may be seen, but their Right is invisi­ble: as a Church may be seen, the Glebe is tangible, but the Right of Advocation thereto is, what? Ask, who everQuamvis Ecclesia secund [...]t quod const tuitur lignis & lapidi­bus, sit res corpo­ralis, jus tamen praesentand [...] erit incorporale. Bra. fo 53. had it in his hand, or can tell who saw it, or where it is. The Instit. lib. 2. tit. 2. de [...]rebus corporalibus & incorporalibus. Emperour has fully satisfied this point; Let patience bear with a little more length then ordinary in transcription, be­cause it tends to illighten all before: Quaedam praetereares corporales sunt, (saith he) quaedam incorporales. 1. Cor­porales hae sunt quae sui natura tangi possunt: veluti fundus, homo, vestis, aurum, &c. 2. Incorporales autem sunt, quae tangi non possunt: qualia sunt ea quae in jure consistunt: sicut haereditas, ususfructus, usus, & obligationes quoquo modo con­tractae. Nec ad rem pertinet quod in haereditate res corpora­les continentur. Nam & fructus qui ex fundo percipiuntur corporales sunt, & id quod ex aliqua obligatione nobis debe­tur, plerunque corporale est; veluti fundus, homo, pecunia. Nam ipsum jus haereditatis, & ipsum jus utendi fruendi, & ipsum jus obligationis incorporale est. 3. Eodem numero sunt jura praediorum urbanorum, & rusticorum quae etiam servi­tutes vocantur. And the same is also the nature of this Right; Though the Things themselves admit possession as visible, tangible, yet the Title to them is in nubibus, a conceit, or supposition of the Law, without any sensible existence; And we may not argue from a Thing to a Title, from Land to an Inheritance; for they come under severall conceits of the minde, and must be cloathed with several expressions, and though they are about the same thing, yet they are not The Same thing, nor admit the same words and considerations. So that it remains then, Tythes may be truly possessed, even when they are not, that is, A right to them against they are or shall be; That quasi possessio is enough to go along with the measure of time in even paces to be a ground of Prescription by that continuance; and though the things themselves may be seen and possessed Corporally, yet the Right cannot, nor is expected should. Be sure of this; That if the Lord of a Mannour, or that higher of an Honour, a Patron of his Ad­vocation, or Copy or Free-holder have right or possession of any thing they have, the Corporation of Publick Sacred Mi­nisters [Page 248] has as certainly possession present and continuall of Tythes in the severall Trustees or Persons, of or for that Corporation, which stand forth to Act for it, being a thing otherwise onely in Nubibus and consideration of the Law; That Right is vested in Them while they live; When they die the Law has provided them of a Chain of never fai­ling successours to supply their mortality; Thus it has been, Thus it is, Thus it may be if Justice may be suffered to have its course, and innocent forms of Justice not disturbed by par­cimony and improvident troublesome folly; and Thus is Reli­gion, and with us the Rule thereof, the Bible provided for and possessed of (in its publick Ministers) sufficient, outward, visible support to the end of the world. O Christian, if thou be, Think of this one word; What it is to Wrong the Righ­teous, to dispossess innocent poor Naboth of the inheritance of his Ancestors, to thrust any Poor man out of his Own, or get or Wish any helpless just man out of his Due and lawfull Possession! If thou be such, think of this, O Christian!

CHAP. XXXI.

IT follows, and is fitly joyned to the for­mer, In whose name this Possession is, which may bring it about that in a strict sense indeed no Man was or is or can be thought to be immediately in possession of these Rights but God himselfe, and that in the words and thoughts of the Law: (for, I give not mine owne, but onely as the Priest heretofore delivered forth the minde of his Oracle:) For, [...]leta lib 4. cap 3. sect. 1. Is Possidet cujus nomine nomine Possidetur, says the same Ora­cle again,Bracton de Assi­sa nov. disseisin. cap. 7. sect. [...]. fol. 165. It is not so much He that is In, as He in whose right he is in, is strictly the Possessour: As in a Tutor com­pared with his Pupil, or a Servant with his Master, &c. And [Page 249] this then fitly advances us onward to the additional strength this Pillar of the Support of This Civil Right has by Anothers interessing, That he that takes them up is never estated in them in his Own Right, but the true and farther uttermost Possession of them is vested and seated elsewhere, terminated Higher, above in Heaven. Men are Takers up of Gods Dues, They doe receive what (withdrawing his visible presence) is His Right, (who should sure be least despoiled or defrauded,) and Persons they are in the sense before, as to stand forth and act for a Supposed Corporation, So Having another Persona­lity to hold forth, in being His receivers, (who though he be everywhere is yet to us Invisible,) To take up to His honour what is Devoted to His service, who is the Soveraign Lord believed of All things, JEHOVAH God Almighty.

This is much believed in the world, and has very much affirmance even in our Civil laws, nor can it (if the thing be thus) but much strengthen and settle this pillar of property, whereupon as great security as Any must Needs rest for In­joyment and Continuance, that Men shall not be put out for Gods sake, nor from His right They be disturbed, Who re­ceive not from or for themselves, but as His Deputy-Possessors and Receivers; Vicars all by a substitution from the Highest, in whose Right taking up what they doe, they are the more bound to dispense in His service to His honour; And who is he will be so bold to turn the Lords Steward out of doors, if not for his own, for his Masters sake, or dispossess God and Religion, subtract or withhold any thing from the Eternall Majesty? Heaven, 'tis said and believed, interesses it self in this case, the Powers above have laid their Sacred hands upon these bequests and receits; What is so settled by clear Human Law below, has a bond of Religion to tie it on faster upon Whosoever are theSee Sir Hens Spelman of Tythes, p 139. Usufructuaries; The spoil wher­of must needs be Then not that of Wrong but Worse, not of Robbery but Sacriledge, a Divine Theft, the Robbery of Heaven, like the Giants offence, and of that Kinde the Ea­gle heretofore committed for love of her young, Not sparing to take the smoaking flesh from the Altar, wherewith the Gods should have been propitiated, B [...]t there hung thereto [Page 250] a fatal Coal that set all on fire, and burnt both her nest, her self, and young ones. A fearfull consideration! (if i should be so, for still I argue upon supposition, delivering forth the tendries of another, my Oracle must bear me out) enough to awaken the deadest, and startle the wisest, to amaze the bold­est, and affright all sober, and any ways considerate, and ad­vised men, from laying violent and profane hands upon that God had touched before, or tugging it out by strength in this Case, least they be not onely like that deplorable sort, Against whom God hath a Controversie, Hosea 4. 4. This People is, (Let them alone,) as they that strive with the Priest; but worse, Shall the Clay exalt it self against the Petter? Wo be to him, Esay 45. 9. that striveth with his Maker. Into whose divine hands the Donations made and following Rati­hibitions favour, in expression, intent of delivery; That what to Religion, was rather Devoted, then Given; even to Gods Great Majesty, the Donee, Receiver, and intended Detainer, and Disposer, That so men might not but give forth to his Will what they receive by his Deputation, being like to be thereby the better Stewards of those Manifold Gifts of God which they receive upon his account, in his Name, and from his Right, and upon a second consideration should be the more precise in dispensing onely to his honour, what for a se­cond reason the hand of his providence dispenseth unto them to have so dispensed: and yet farther the reason of whose proceedings and Justice may seem in equity to expect that they should not spend merely upon themselves, but use Non quasi suis sed quasi commendatis, what they receive of his bounty, as His, to be so, and no otherwise but so used.

But to come to the strength of some Particulars; (not deal­ing onely with the supple and pliable affections to mould and frame them, but stablishing the judgement in the thing aver­red or supposed;) That things devoted to Religion are not solely and ultimately Mans, but in a further hand; I will not urge the sayings of Poets, and Oratours, Councels, School­men, and Fathers, though these offer themselves; but the glances of Scripture may be not inconsiderable, at least to prove the possibility and elsewhere existence of the thing; to [Page 251] which purpose I awake to remembrance: first, the vow of Jacob, Gen. 28 2 [...]. Quicquid dederis mihi, ejus Decimam omninò sum daturus Tibi. Whatsoever thou shalt give out to Me, the Tenth I will give back to Thee: which promise he makes to his God. And of Lands, Vows, Oblations, &c. 'Tis said, Lev. 27 28. Every devoted thing is Holy to the Lord: particularly ib. ver 30. these Tythes, whither of the seed of the land, or fruit of the Trees, (as we would say, Corn, and Fruit) And ac­cordingly paid in practise, not without intimation of this Consecration and appropriation;2 Chro. 31. 6. They of Judah and Isra­el brought in, Decimas armenti & gregis, Decimas sacras, id est, sacratas Jehovae Deo ipsorum, as Tremellius; Their Tythes of the flock and of the herd, sacred and devoted to Jehovah their God. Who complained He was defrauded, even he him­self, in These?Mal. 3. 8, 9. Will a man rob his God? (possibly the thing may be done, or else here in vain questioned:) Yet you have robbed Me: Wherein? In these. Ye are cursed with a curse, &c. And for the Attournment or making them over to Man to be received by him, for his good Lord and Masters behoof,Num 18. 21. and compare ver. 23. & 26. Behold, I have given the Children of Levi all the Tenth in Israel, (They were mine, but I have Given them to Them) [...], for their pub­lick work of Ministration, For the service they serve in the Tabernacle of the Congregation. All this is in Gods Book to prove the possibility of the thing (and abundance more not found or sought:) But now for what apprehensions Our Laws had of this thing here, which is to the point indeed, The be­ginning of the great Charter was remembred before; Chap. 1. Concessimus Deo, & hac praesenti Charta confirmavimus, We have given to God for us and our heirs, that the Church shall have All her Rights and Immunities, And a part of the Church Rights were then in Tythes, and Juris­diction to Command them: (Whereas the Liberties of the Freemen of the Realm were given to Themselves as 'twere into their own hands immediately.) Were those blinde days? Was King Edward blinde also?(8) Leg. Edovar. cap. 8. (1) De omni annona decima garba Deo debita est, & ideò reddenda, said he, The Tenth due to [Page 252] God and so to be paid: so preached Augustine, and was granted by the King, his Baronage, and People. Not Augu­stine of Hippo, but one was more near us, and more to be heeded by us, though Nosti quia Dei sunt cuncta quae percipis, &c. as the word were alleadged before, p 74. And a lit­tle after, Quid si diceret Deus, Meus est homo quem feci, Mea est terra quam colis, Mea sunt & semina quae [...]argis, Mea ammalia quae fatigas, Mei sunt imbres & pluviae, & ventorum flami­na mea sunt. Meus est Solis calor, & cùm omnia Mea sint elementa vivendi, Tu qui manus ac­commodas, solam decimam merebaris. Sed quia piè nos pascit omnipotens Deus, amplissimam tribuit minus laboranti mercedem, sibi tantum decimam vendicans, nobis omnia condonavit. Ingrate fraudato: ac perfide, divina te voce con­venio. Ecce annus jam finitus est, redde Domino pluenti mercedem, &c. Iu a harvest Serm, de temp. 219. Tom. 10. p. 370. that Father spake fully enough and to this point, to his Africans; but I keep my promise and home: Wise, prudent, valiant, successfull, and exceeding pious, King Alfred required,Spelm Concil. p. 360. Thine Ty­thing portion give thou to God: and Id. p 377. in his League with the Danes calls them, Dei Rectitudines: and his father before him wrote his Catholick Dona­tion Id. p. 349. at the Altar, offered it there, as to whom? and not having to do with an Eorl or Earderman, or any upon earth Man-receiver. The Councel at Id. p. 517. c. 10. Enham called them, Jura Deo debi­ta; King Knout in hisId. p 544. Laws, Quot annis quisque Deo debita Jura justas­que redditiones ritè persolvito, Let every one pay yearly to God his due Rights: and KingId, p. 531. Ethelred before, Nemo auferat Deo quod ad Deum pertinet, & praedecessores nostri con­cesserunt, Let no man take from God what belongs to God, and which our Ancestours gave. What was in King Edwards Law we had but now: which how much the Common Law remember also, and the following confirmations of that Law (as many as were) involving this also: and to omit what might be gathered from our Provincials in Lindwood, and the Decrees at large, step at once to Henry 8. where27 H. 8. c. 20. the Parliament complains to the King for remedy, that, Numbers of ill-disposed persons having no respect of their Duty to Almighty God, but against Right and good Conscience, did with-hold their Tythes, Due to God and holy Church, &c. They were then reputed and in Parliament Language so to belong: and lastly in the commonly reputed common Law, Bract. and Fleta are not wanting. No one can but account, these [Page 253] things, and even in their account a part of the sacred Reve­nue, and thenLib. 3. cap. 1. Sect 3 Res verò sacrae, relligiosae, & sancte in nullius bonis sunt. Quod enim d [...]vim Iuris est, id in nullius ho­minis bonis est, imò in bonis Dei hominum censura. Braction lib. 1. cap. 12. Sect. 8. f. 8. vid. ff. de [...]erum divisione, l. [...]. Sect. 2. Inst. l. 2. tit 1. Sect. nullius. Sacrae res sunt quae ritè per Pontifices Deo consecratae sunt veluti aedes sacrae, & Donatia, quae ritè ad Ministe­rium Dei d [...]d [...]ata sunt. Q [...]ae et am perne­stram constitutionem alienari & oblicari prohibuimus, excepta caula redemptions captivorum. 16 Sect seq [...]. sayes Fleta: Extra pa­trimoniū sunt Res sacrae, &c. beyond mans Right or reach: neither are they to be transposed for that reason: forItem donari non po erit res quae possi­derin [...]n potest, sicut res sacra vel religiosa, vel quasi, &c. Hujusmodi verò res sacrae à nullo dari possant, nec possideri, quia in nullius bonis sunt, id est, in bonis alicujus personae singularis, sed tantum in bonis Dei vel bonis fisci Bract lib. 2. cap. 5. Sect. 7. f. 14. no man has them, they are a part of Gods Inven­tory, sayes Bracton. They A Rectory or Parsonage is a Spiritual Li­ving, composed of Land, Tythe, and other Oblati­ons of the People, separate or dedicate unto God in any Congregation for the service of his Church there, and for the maintenance of the Gover­nour or Minister thereof, &c. So three e [...]ual integral parts, sc. Glebe, Tythe, &c. Spelman. de non temerand. Eccl. Sect. 1. and the Glebe are questionless as to this all of a nature: their property, use, possession, in­tention, devotion, application, and juris­diction the same: and for what Land is gi­ven, Bracton. lib. 2. cap. 35. Sect. 4. f. 78. So Fleta. l. 3. c. 16. Sect. 13. p. 205. Videtur & verum est, quod primò & principaliter fit Donatio Ecclesiae, & se­cundariò Rectoribus & personis, says the same Bracton. Which if it be excepted a­gainst as thrown in with the exploded Ab­by possessions, elsew here is shewed some difference. It is in Case of Remedy for recovery of Cathedral, Conuentual, and Parochial Church-lands, by a Writ of Juris utrum, whether an Assize shall lay of the latter as of the two former? and it isBracton in tract. de Assisa utrum. ca. 2. Sect. 8. f. 2 6. said, it shall not; For though those Lands were given to them In libe­ram eleemosynam, yet they were given to Persons, as well as Churches, who in that regard having leave of remedy, As Other men had, thereQuod alicui grat [...]osè conceditur, trahi non devert aliis in exemplum. Reg. Iui [...]s. Can. 74. needed be no stepping aside out of the way upon no occasion; and the form of the gift may be known by the Charter; but now for him that has Right by his Parish Church, it was not so, that any thing was settled upon his person, but onely upon his Corporation, Et quae persona nihil clamare poterit nisi nomine Ecclesiae, suae, quia in Ecclesiis Pa­rochialibus no fit donatio personae sed Ecclesiae, secundùm quòd perpendi poterit per modum donationis. This is evident, for what Land is given to a Parish Church; the reason is the same of Tythes, as devoted to beyond this World, and [Page 254] Sir H. Spelman of Tythes, chap. 17. That things offered to God be Holy. I must first explain what I mean by Holy, & that is, not that they are divine things, or like those of the Sanctuary, which none might touch save the anointed Priests: But like the Lands, and Possessi­ons of the Levites mentioned in Lev. 27. v. 28. 29 that were said to be holy and separate from com­mon use, and separaie from man, that is, from the injury of Secular persons, and to be onely disp [...] ­sed to and for the service of God, Defensum & munitum ab injuria hominum. ff. de rerum divis. L. Sanctum, as the persons of Emperours and Kings are said to be sacred. For as the Al­tar sanctifieth the Offering, Matth. 23. 19. So these things being offered to Go [...], are by the very act of Oblation made holy, and taken so into his own tuition, as they may not be after divorced. p. 82. sacred, in the same sense that any thing visible is, as separate and laid in in se­veral from the touch of prophane hands, and common vulgar uses, designed and set aside for God and godliness, ( [...], as isAristot. Polit. l. 6. c. 8. Aristotles very fit and apt expression,) onely for Heaven. Not for nature or sin, necessity or sensua­lity, in the serving of which ends most other things spend themselves, but merely to set forth Gods honour in this World, as the Ox or the Lamb brought to the Ta­bernacle or Temple, or as he reserved ma­ny things to himself in the Levitical Law, but the Levites were his Receivers. He was no more visible Then then Now, nor the things invisible and of a different nature, yet to his honour, yea to himself were appointed then, (and he did appoint them) sundry things to be set aside, which his Levites had and he in them. So here. As in implica­tion of some like thing whereto believed and received here, it was spread abroad, and yet remains at the sea coasts, that those followers of Peter and the other Apostles who main­tain theit temporal life by the painfull labour of Fishing, bring the Tenth of their personal gains and lay it down at the pub­lick Minister of sacred things his feet by the name (which they yet retain) of Christs share. Why this, but because they intend Him a part of every Draught? As if never a day or night they lay forth with any success but somewhat must be laid aside for Heaven, and of their penury some mites be con­tinually paid in to his Treasury. How? To give them into his Own hands? This is impossible: He is in Heaven beyond the thick clouds, where we nor can offer, nor he receive any thing: But he has Servants, and Service, and Ministery, and Mini­sters, upon earth, to whom he hath said, He that receiveth you receiveth me, into what place soever ye enter Take what ye finde, for the Labourer is worthy of his hire; For them therefore and their sakes,In as much as all the Types of Christ, as a Priest, have received tythes as du [...], & as types; and in as much as his person and office are eternal, and therefore the an­nexa; and in as much as he hath no wh [...]re dispensed with, or denied, or refused, &c. and lastly, in as much as he hath left those are his Ambassa­dours, in his stead: for my part I do not see why unto them in the Name and Right of their Master, those rights should not be due, which were mani­festly His in his Types, and of which Himself hath no where in his word declared any revocation, Raynolds. on Ps. 110. 4 p. 474, 175 in His Right these things are [Page 255] issued forth and brought in, and accordingly they receive name. If the world were asleep at first when the title was given and prevailed, It hath been awaked at some time since; 'Tis hard to impose on the vulgar, or plant any name or ti­tie among them that shall with success spread and grow, un­less it fit in with their preconceived notions and apprehensi­ons: It seems this did, whence they entertained it general­ly and retain it firmly, and by this name they yet express their own mindes of what they give, calling it Christs share. Upon which account of somewhat beyond meerly Human, and that had a touch of Divine or toward Heavenly, These rights be­came triable, and the doubts of them onely disputable and determinable in that Court, by rule and practise, where few of earthly or meer worldly things were once thought of, and whose natural and first proper essential bound of Jurisdiction was, Spiritualia & Spiritualibus annexa. There were inquired into things above this world, and which could not be regulated by common rules of Civil Justice, as Articles of Religion, Exercise of Discipline, Ecclesiastical Censures, and generally things being or reputed Sacred: And Thither Al­so, as being of kinde and kin, did These things throng in, or rather were both admitted and invited, as Saying by Doing what was, and that they were not reputed meerly of humane consideration, because they were let in and there had regard and only proper tractation or trial where things Divine and most nearly belonging to God had or should have had their due inquiries. If the aim had been only to get in dues, (these Dues,) to determine of Civil property, or to keep one man alive in a Parish, All Civil Courts of Justice were open where All such things had their proper inquiries and resolutions, and the Tenth part needed not to have been separate from the Nine: But it seems somewhat farther was aimed at, and meant or implyed which was the cause why these things were parted, and the face of things seems to represent that there was an apprehension and supposition that it was, because they were thought to draw near the things of God, and were, as far as any, toward Beyond this world, and Therefore they were sorted with a scene accordingly, and had their trail and dis­cussion [Page 256] where the things of Religion and Christianity were in­quirable onely, sc. in the Court-Christian.

Farther, by onely which kinde of Supposition the crime can be aggravated of taking them away to that heighth it commonly is, and men for purloining be accounted in the number of more then unjust, Impious and Sacrilegious. For it seems at least unto me that it is not so much the violation of any Command or Law humane or Divine, from earth or above heaven if it were possible, can denominate and speci­fie this sin, (if that Law were as plain as another Divine Com­mand, Thou shalt not commit Adultery, Thou shalt not Steal;) But something else and growing in the Nature of the sinne below that must advance the crime so high as to change kinde and become of Wrong and Injustice, Impiety and Sacriledge: To rob Heaven must offer violation to Hea­ven, and that be more then to offend in transgressing a Law of Heaven. For the Morall Commandements above come thence and are in force for us, and yet No one says Adultery or Theft are Sacriledges: Sins they are, but that their full latitude, the Divine Precept does not new specifie the nature of the offence, These or Any. So heretofore, when Jus divinum undoubted had bounded every ones own, The tribes at least if not the families were parted by sure and immediate Commission from Heaven, yet the unjust invasion of any part even then was not counted, I believe, more then Unjust,Qui rapit pe­cuniam proximi sui, iniquitatem operatur: qui au­tem pecuniam, vel Res Ecclesiae abstulerit, Sacri­legium facit. Cau. 17. qu. 4. c. 18. Wrong or Injury when any part of the second Table was bro­ken, (whereunto yet the seal of Divine Authority had been affixed in every part,) No more. Even so here, to raise this aggravation, and cause this change by new specification of the nature of this sin from Theft to Sacriledge, seems not to me so properly to grow from any authority of any sort of power and command above, as here below fromPorrò à sacris fures Eorum vel violatores pro­priè sacrilegi di­cti. Pet. Gregor. Tholos. Synta­gom. lib 33 cap. 14. sect. 8. something in the very heart and nature of the offence, which makes it [...]; Rom. 2. 22. [...], a Sacred Spoliation, not from the Law, but from the Thing: when either Sacrum de Sacro, or Sacrum de non Sacro, or non Sacrū de Sacro is taken, still hovering Here below, and as theZouch. descript. Iur. Eccles. par. 2. sect. 8. Pet. Gregor. 1. Tholos. ubi supra. Lawyer speaks, through whose spectacles we are [Page 257] like to see clearest in this case. And accordingly theCujacius in parat. ad legem Iul. Peculatus. Ci­vilian defined it, Sacrilegium est furtum Rei aut pecuniae Sa­crae ex loco, vel religiosae ex religioso: and they are Sacrilegi­ous, who?Tit. eod. L. 9. sect. 1. Qui publica Sacra compilavêrunt, that have medled with somewhat Sacred: still relating to the Thing from the Command; And the word also imports that way; forApud Ioan. Calvin. Lexie. Iur. pa. 824. Sublegere is Furari, says Servius, unde & Sacri­legus dicitur qui Sacra legit, id est, furatur, so Another. Still dwelling below and conversant about That Is, Not Who says: as we do not read that Ananias and Sapphira had any order at all to bring, or sinned against any Prohibition in revoking, and yet (with Achan) they usually march, (trans­gressing in what had come under divine precept no way,) in the head of the Sacrilegious. We have no strict Command for a Chalice or diverse other Utensils of the Church, nor the Church it self, yet few I believe will allow but transgressions aggravated by being conversant about these Things are worse then others, and ofLocus facit ut idem vel fur­tum, vel Sacrile­gium sit, & capi­te luendum. Claudianus. li. 48. Digest. tit. 19. L. 16. sect 4. extraordinary Guilt in this world, and they are Things. I promised not to meddle with any Theo­logical Discourse, Nor do I here, but as it has dependance of and derivation from, yea, necessary complication with what was Civil. Our such Laws say, That Tythes are Given to God, which I say does well infer, their surreption sacriledge, as on the contrary, they that say, 'tis sacriledge to take them, give argument, they think they belong to God, Forasmuch as not so much Gods Command or Divine Right for dueness makes this sin, as something in, below, with the Act it self, and indeed Correlatively they infer or remove one another: for if a thing be bequeathed to Gods hand, (as the Law says plainly here,) it cannot but be sacriledge, Sacra legere, to take them (Holy) from him; as on the contrary if it be sacriledge to take them, They that say so must first imply and suppose they were made over and given to God.

I have in the prosequution of this point omitted what E­pithites or Paraphrasing Descriptions I finde of them given abroad, where they are styled Res Dominicae, Dominica sub­stantia, Patrimonium Christi, Dos sponsae Christi, Dei cen­sus, and the like, all which must needs advance them high, [Page 258] and joyn them near in with better then meer worldly things: In usum pietatis concessae, as is properly said in the Caus. 16. qu 7. ca 1. Ca­non, Or, Decimas Deo dari omnino non negligatur, quas De­us sibi dari constituit, quia timendum est, ut quisquis Deo debitum suum abstrahit, ne fortè Deus per peccatum suum auferat ei necessaria sua, as in the Cited by M. Selden Hist. ca. 6. sect. 6. Councel of Mentz: But these are without the Circle of our Own, to which I promised to confine my self. Much less may I take scope to look abroad into the profane world, for their Oblations, even of Tythes, and to God, to whom they vowed and thought they payed. As Agis in Xenophon, and Agesilaus in the same, who both brought their Tythe to Delphos to their god, and offered it him; which Agis Delphos profectus est ac decimam Deo obtulit. Xenoph. ac rursum: Ho­stium verò ita fruitus agro est, ut duobus annis centum talenta & ampliùs Deo apud Delphos decimam dedica­ret. Id vid. Ba­ron. ad an. Chri­sti, 57 sect. 74. tom. 1. col. 607. Baronius having remembred, and many more, concludes with, At verò non immorabor diutiùs in singulis exemplis recensendis: Constat quidem apud om­nes ferè gentes, velut quodam jure naturae exigente, deci­mas Numini devotas ac redditas: upon his credit, paid all o­ver the world, and as due to God, not to maintain a man or any sort of men, but in signum universalis dominii, in thank­ful gratitude to the Original Donour of All, of whom they did conceive to have and hold their good Lease, and in ac­knowledgement of the tenure they brought him back again something. Fain (as M. HookerEccles. Polit. lib 5 sect. 79 pa. 424. gravely resolves and con­cludes, and with him I conclude this point also,) would we teach our selves to believe, that for worldly goods it sufficeth honestly and frugally to use them to our own benefit, without detriment and hurt of others; or if we go a degree farther, and perhaps convert some small contemptible portion thereof to charitable use, the whole duty which herein we owe unto God is fully satisfied. But forasmuch as we cannot rightly ho­nour God, unlesse both our souls and bodies be imployed some­times meerly in his service; Again, sith we know that Reli­gion requireth at our hands the taking away of so great a part of the time of our lives quite and clean from our own busines, and the bestowing of the same in his; Suppose we that no­thing of our wealth and substance is immediatly due to God, but All our own to bestow and spend as our selves think meet? Are not our riches as well his, as the days of our lives are his? [Page 259] Wherefore, unlesse with part we acknowledge his supream dominion, by whose benevolence we have the whole, how give we Honour to whom Honour belongeth, or how hath God the things that are Gods?

Thus far that grave and judicious man; a piece from whose page does more then a little adorn Ours: And so now we have seen how Tythes have been intended to be settled on Heaven: How our Laws say, They were so: How they have been tryed accordingly, and this alone renders their spoliati­on, sacriledge; Besides what else abroad to this purpose: Sure then the world has looked upon them as Such: Sure they have been reputed at least as God's.

It remains for application, How fast and safe they should then be from injury and spoil, How inviolably not to bee subtracted or touched, as things laid up in Heaven, as what may not be purloined from the foot-stool of Gods Throne, (if there they have been deposited;) And Who is he dares put his hand toward that God has touched before, or lay a fin­ger upon that he has laid his hand, and would, (to see him­self deprived and wronged, or that the wrong should but redound to him, or touch toward him,) shew himself no doubt an Angry Jealous God! Sure, This must not a little confirm humane Right when a bond of Religion (or as Re­ligious) shall adde what strength it can to that which hu­mane wisdome by the best contrivance of all its devices had made and settled before for immoveable; and this we find not in some scattered loose sheets, but the universall, all-ruling, all-giving Law making faith for it; after the stablishing by Civil sanction, This coming in and saying, These things were given to God, I know it, I should know and do assure it: Take my word for it, I have best looked upon them, and never took them for any other. We know, for natural and equitable reasons as well as Law, No one should be put out of his own: Posses­sion bears such a sway that it secures multitudes in their Hea­then right, nor are they touched or questioned but from most known injury: And shall not Gods Minister sit as safe and fast, and faster in that not onely the Law gives him as His, but the same Law tells him and all the world he is in possessi­on [Page 260] on of for the God of all the world? for the King of Heaven? Ye cannot wrong me, but ye must Rob Him, defraud Reli­gion, disturb an higher title, impoverish the Ministery, disa­ble Gods service, starve and choak, (by diverting those warm showers of bounty had wont to cherish and feed it) the publick practise of Religion at the root, leaving onely a possibility, but never reducible into act, of glorious service, by this that Ananias and Sapphira have taken what Others gave, to maintain the Ministers of that service: Do we ac­count it so hainous a thing, (as Justly we do) to remove the old Land-mark, to curtoll the set rule of Right, or to deprive the good people of the Land of their part in the Great Char­ter, which as but to a lower hand neither was never delive­red farther then their Own Custody: (Item, We have gi­ven for us and our heirs to all the Frée-men of the Realm these Liberties following:) And shall it not strike higher that reacheth to the injury of Heaven, touching the Impri­mis concessimus Deo, that the Church shall have her Rights? Reaching as it were unto another world, conveighing up to Heaven, and depositing as it were at the foot-stool of his Throne the Assurance, making Him the entrusted Feoffee for others use, or rather the absolute and irrevocable Donee, and Proprietour estated and indowed to have Right or Wrong by the men of this world? I will not say the thing is so, fully; I onely propose, what the Law seems to intend; with what an eye that hath looked upon it, or under what form it hath represented it; me thinks in terrible form enough of Consci­ence to all that believe a Deity, to fright any from medling that considers, (if it Should be so,) Decima DEO debita, Dei Rectitudines, Deo debita Jura, In usum pietatis con­cessa, & Concessimus Deo pro nobis & haeredibus nostris, &c. If this should NOT be so? Some one may say. But say I, What if it should? THESE may be but the workings of fearfull fan­cies? But, What, say I, if they be Reall and Solid Truths? They do but terrifie: But what if they should and ought instruct? As theCambdeans Remainces, p. 250. barefoot Friar heretofore answered the Gallant, who scoffing at his austerity, asked, Why so? This is not much, quoth the Friar, to him that thinks there is [Page 261] Hell. But if there be no Hell replyed the Gallant, what a Fool art thou then? But, if there Be, said the other, Who is then the greater Fool? What if thy sinfull soul be sealed up to unbelief, and thy seared conscience will not render thee dreading the Fire till thou feel it, till thou lye down in it, till thine own experience be the first credible Preacher thou wilt believe, when thou shalt finde thy self laying down in flames, where the worm dieth not, and the fire NEVER goeth out? Doubtless it is best to cast the Worst; most safe to forecast what May be although it may Not be; the more if it may tend to danger in the worst, and those everlasting incon­veniences and if men be not given over to a reprobate sense, Rom. 1 28. past feeling, Ephes. 4. 19. as the Scripture speaks, lulled asleep by the deceit­fulness of sin into a dead Lethargy,2 Cor. 4. 4. the god of this world ha­ving so blinded their eyes, that they have no regard of the next, It cannot be but these considerations must breed a pawse at the least, and with all sober and advised men a deliberati­on and Doubt whether these things be so, or no? Whose pos­sibilities are assured by the instances of Scripture where they were So: Which men have agreed so all abroad to deliver from the publick voice as it were of the Church and of the world: Which are left inshrined in the sacred monuments of most reverenced and solemn Laws, and unless most things did agree to deceive us, could not but be True. And if so, that there be Possession, yea, sacred, and in the sense given Divine Possession, both Equity and Law, Godliness and Honesty, Religion and Reason, Piety and Justice call out for Every man to have his due, (especially where a party may be more then man) and it can be no less then Ʋnrighteousness and Im­piety both together to dispossess and deprive of them. We are bound to love our Neighbour as our selves: How do we this, if we wrong him? If we undo him? If we give him cause of grief? Which of us could be contented to be thrust out of our own possessions or inheritances? a part, much worse from the whole? and yet much worse then that if the whole labouring Tribe should be left to uncertainty, and Churches in danger of being vacant? We should love God above All: How shew we this in wronging His Ministers, ta­king [Page 262] oile from their His Lamp, and venturing to lay a cove­tous finger where He is said before to have laid his hand? The prosperity of Religion is, or should be to every good man the Joy of his heart, the light of his eyes, the comfort of his soul, the life of his life: how further we this, when we take, (not onely from man, but) from that Religion we pre­tend to honour, depriving the labourer of his hire for work therein, muzling That Oxe treading out the1 Corin. 9. 9. 1 Timoth. 5. 18. or, treading the mowe: So Ioseph has left us that law intetpreted, with much proba­bility. Vid. Iosep. Antiq l. 4 cap. 8. [...]: Thou shalt not muzzle the Treading Oxe. Deut. 25. 4. the place the Apostle alledgeth, as Esai. 42. [...]. Thou shalt trample the Moun­tains. Corn that he is not able to do his work, and whereas the offering of the righteous maketh the Altar fat, we make it lean (by ta­king away the fat that others gave,) and are resolved once more to tempt the Providence of Heaven, whether it be a­wake and regard to revenge its own wrong? whether the Gold of Tholouse shall prosper in our hands, though it were once spread upon the Altar? or the sacrifice will carry again a fatall coal, which kindled by Heaven, may not have pow­er to be quenched on Earth?

Will a man rob his God? Will he? His own God? Any? saith the Prophet: and will we be instances in ours? Dare we contend with Him that is Great? are we mightier then He? Are Gods and Mans rights combined both together? and will not this double strength hold? a double fence protect from violation? Seneca's Epistles would sure teach us more ho­nesty, and the Law of theSacrum Sa­crove commen­datum qui demp­serit rapseritve, parricida esto. L. 12. tabul. twelve Tables fright us into better Religion. The Relation To A Deity is me thinks such a charme as should not but affright any from medling where it is inscribed, or entring that circle where the dim­mest Characters thereof do cirtumscribed appear: Sure he that put in some respect into his [...]. So the Septu [...]gint reads the Text, Exod. 22. 28 in­terpreted by Io­seph of foram Gods: Antiq. lib. 4. cap. 8. & contra Apion. li. 2, near the end. And also by Philo the Iew. lib. 1. de Monarch. Law, To God As God, and would have None violated, would least of all excuse us if we should profane (Himself,) Our Own.

CHAP. XXXII.

IN Whose right Man hath been Long possessed too: through the continuance of ages and generations: for this is no device of yesterday, like to change to morrow, but such as has already out-lived peace and war, troubles and conquests; yea, the revolutions of all seasons, of winter and summer, health and sickness, corrupti­on and reformation; Nor from the darkest remoteness of any Christian days, does shew of any other maintenace appeare for Gods family but this, which hath bin the subsistence of his workmen all along that have laboured in his harvest, and bin maintained hereby, without which they could not have sub­sisted nor have laboured. As if Providence had intended by this solitary instance to furnish us with one very good argu­ment for Expedience of continuance, Because the world could yet give example of No other, At least some cause of doubt there Might be and Reason to fear whether Any other would do so well, because none at all had yet been tryed. For ma­ny things smile with very much content and pleasing flattering delight upon the nimble working fancies of busie bold under­takers, Who when they have cast and contrived such a thing should be; give themselves leave to be perswaded presently it shall, and what hath been moulded in their working fan­cies (commonly attended with weak Judgements) may easily be made out into Existent Realities, for which their quick wits are soon able to afford them arguments enough: But when they shall come to reduce their speculations to practise, and give life to their pregnant and very Happy conceptions (as they think) setting the whole frame of their new and unexperienced devices to move forward upon all those neces­sary wheeles their fancies had soon made, and now must be made out to keep their Projects a going, Many a doubt starts out ex improviso, Many a rub is cast in the way of their [Page 264] smoothest and evennest most probable designes, Many an incongruity arises to disturb and cross their promising and most handsomly and universally complying expectations; Ma­ny a sowre and unlooked for opposition to make the plot rellish of Humane, whatsoever hath been the best fruit of Mans contrivance, accompanied as it is with manifold Hu­mane infirmities: Whence some wise men have declined nothing more then Change, accounting it a good part of their best Wisdome to Vary as little as may be in things of waight, yea to let things quietly and upon deliberation alone with Some inconveniencies if but Tolerably Well, not onely because of the Charge and trouble, but also that manifold Uncertainty will always follow Change, (as we are able to make it,) taking that Is, though precisely and purged from all inconveniencies None of the best, and venturing with choice and most satisfaction of reasonable desire along in the trod­den, though somewhat uneven path, because There they can descry the feet of Sundry Passengers that have Used to goe before them. Experience is among the greatest Securities of Hope; Duely applyed it gives as much toward Assu­rance as almost any thing, that What Has been shall Be; As on the contrary dark untrodden wayes have Wise mens jealousies always hanging over them, and perillous innovations been by them both shunned and feared: Forasmuch then as Christian Publique worship hath (with us) had little other supportation then this Hitherto, and Many think No other will hold, This may affoord at least a Topicall argument for Continuance; that What hath been May, because of none other the world hath had any of the certainty of Expe­rience.

And this step advanceth us fitly to the last plea of Prescription, and that confirmed by what it had its first strength from, such continuance of Time as doth more then manifoldly double and treble that Time of Having, which was simply necessary to Prescription; (as each pillar before had some additionall strength:) Which to understand the better, and ground all the firmer, it may be expedient, as in them, to premise some things of the doctrine of Prescriptions in generall; for this [Page 265] will be the more solid and able to endure examination, if we shall not fancy to our selves, any thing, but take that mean­ing thereof here, that others have both taken and given.

Mos Decret. par. 1. dist. 1. c. 4. est long a Consuetudo de moribus tantummodo tra­cta, I begin then with that of Isidore in the Canon: & Ca. sequ. Consuetudo est jus quoddam moribus institutum, quod pro lege suscipitur cùm lex deficit: Combined, as it were, one in another, and are both in effect, Ʋsage strengthened into a Law. Of which Law, if there were never a word in this world, nor Scriptum est had ever dropped from any learned mans pen, or publique vote to bear Umpire or decide doubts, yet if mens forwardness shall take up, and Use continue, some men goe before and others follow in any good way. This Continuance by degrees grows up into a Law, (especi­ally in England) and what is warranted hereby is lawfull enough; future Travellers may keep that rode justifiably and without controll, because they can urge they see the print of others footsteps which have usually heretofore gone there before them. I said, especially in England; for here some peculiar influence is from Custome; Our law seems much made up of it and more then other, so farr that whether it or law say the same thing is not much materiall with us as to credit or validity. Consuetudo verò pro lege observatur, in partibus ubi fuerit pro more utentium approbata, & vicem legis obtinet: Longaevi enim temporis usus & consuetudinis non est vilis authoritas, saysDe divisione rerum, c. 3. sect. 2. Bracton: It is as strong as Law. AndId c. 1. sect. 2. before, Cùm autem ferè in omnibus regioni­bus utantur legibus & jure scripto, Sola Anglia usus est in suis finibus jure non scripto, & consuetudine. In ea qui­dem ex non scripto jus venit, quod usus It follows there: Sed absurdum non erit leges Anglicanas (licet non scriptas) le­ges appellare, cùm legis vigo­rem habeat, quic­quid de consilio & de consensu magnatum & reipublicae communi sponsione, authoritate regis five princi­pis ptaecedente, justè fuerit definitum & approbatum. Sunt autem in A [...]glia co [...]sue [...]ud [...]nes plures & diversae secundum diversitatem locorum: Habent enim Anglict plurima ex consuetudine, quae non habent ex lege: sicut in diversis Comitatibus, Civitatibus, Burgis & Villis, ubi semper inquirendum erit, quae sit illius loci consuetudo, & qual [...]ter utuntur consuetudine qui consuetudines allegant. comprobavit. As if some peculiar regard were given to it, here, Vivitur exem­plis, we durst almost venture by track, and it may and must be well what others have used to doe before us. What other ground almost besides this doe we know of many things [Page 266] we see done and allowed? Ask the reason of fines, Herriots, (or Heregates, for that I take to be the right name, somewhat belonging to an Army) Relieves, Widows thirds, (in a speciall manner here) Copyholds, to the eldest or youngest, and severall rules of right yet stinting strife all in severall places; Is not the bottome of most of these, Custome? it hath been so? Men have used to pay, or give, or do so? and This reason enough why it should Be so. For men are with some difficulty debar­red their accustomed way; Late may not be hindred, what might have been at first prevented. So that if overwise poste­rity shall at any time think to awake out of that dream wher­in their dull and patient Ancestors have suffered themselves to be led out of the way for a long time, as their new wisdom thinks, and champing irefully upon the bit, resolve to call all to scrutiny that hath used to pass, and if it cannot give a very fair account of it self, discharge it for superfluous, Does not the answer that heretoforeIoseph. de [...]ello Iud. lib. 2. cap. 16. Agrippa made to some Med­lers, seem especially fit to be served in to their satisfaction? Intempestivum est nunc libertatem concupiscere, It is now too late to seek for what they might have desired; Olim ne ea omitteretur certatum oportuit: Nam servitutis periculum facere durum est, & ne id subeatur, honesta certatio: At qui semel subactus deficit, non libertatis amans dicendus est, sed servus contumax: They might have chosen, but now they are bound and concluded, the yoke is setled on, and must be born, (as Peter told Ananias, Thy money was at thine own dispose, but now thou hast limited thy former liberty.) And Honestum quidem est pug­nare pro liber­ta [...]e, sed id olim factum oportuit. At qui victi se­mel sunt, et longo tempore parue­runt, si jugum ex­cutiant, faciunt quod desperatorū hominum est, non quod liber­tatem amantium: Ioseph. Joseph himself, as his wont is, to the same Men, Gravely: It is commendable indeed to fight for liberty, but this should have been done in time: Those that have been subdued, and long obeyed, to shake the yoke is rather a desperate shift, then an advised attempt for liberty. There be many things, 'tis like might have been amended at first, and the work of true prudence have cast things in such a mould at beginning, as might have saved (or prevented) many after following and continually renewing inconveniencies: But when the lot is cast and the tables shut up, the publique hath appointed, time setled, and continuance made next to immoveable and natu­rall, [Page 267] Then for every thinking man to be tampering with avitae consuetudines, to amend all he thinks hath been long amiss, cannot but be the way to much trouble, or is not much remo­ved from intemperate fury: Because he is very weak that thinks not at least he can mend somewhat in Sir Tho. Moores Eutopia, or Plato's Common-wealth, and it may be, Could, but Some evils are better born then their remedies. I con­fess my self not very Curious before in keeping my self to that strictly may come under the word of Prescription, but to that which hath the nature of the thing, to create a title by Posses­sion and TimeEver: And I know what distinction the Civilians have between it and that ranges also under the same head, of Ʋsucapio: ThatJoan. Calvin. Lexic. Jurid. in vocab. Praescri­ptio. pag. 732. & in vocab. Usu­capio: pag. 959. One is restrained to land, The other to goods: One for, Longi temporis, the other for yet larger size; ThatId. in vocab. Praescribere. pag. 731. where is a purposed, and as the author thinks, first started disqui­sition of their difference: Vid. etiam Cujac. in paratit. ad [...]od. de praescriptione longi temp. to take place onely in Italy, This also in the Provinces: But chiefly, that one givesVid. Gloss. Quod autem praescriptione in Caus. 16. quest. 4. in Rub. & Cujac. in the place but now. full right of posi­tive Dominion, for recovery; But the other onely Excepti­onem contra actionem, to protect the Possessor against an assaylant, cannot recover a disseisin: But these niceties are not to be much stood upon by us here in England, and the rather for that theAs may be seen in Jo. Calv. pag. 732. cited before. Civilians themselves stick not fast to them: We mean, as said, the Thing; that which gaineth Title bySo Cook on Littleton. Inst. 1. fol. 110. b. Having and Using, Possession and Continuance; and these two, I suppose, as so many essential parts, doe goe al­wayes to that which is Prescription. Which is then, sayes Fol. 113. Cook, A title taking his substance of Use and Time, al­lowed by the law; Praescriptio est titulus ex usu et tempore substantiam capiens ab authoritate legis. He critically distin­guisheth again between This founded in a person, Custome in a place; A man may prescribe, a Mannour or Honour breed a Custome: (but this I insist not on neither.) and the Civill law agrees with ours:ff. lib. 41. tit 3.. l 3. Ʋsucapio est Rectiùs fortassè, Adeptio dominii: Sic enim ex Ulpiano Duaren. in loc. & Calvin. in Lexic. Jur. pa. 959. adjectio dominii per continuationem possessionis temporis lege definiti. But now what time is requisite to create title, would require somwhat a large parenthesis.

[Page 268] First, abroad: andIure civili const [...]t [...]tum fue­rat, [...]t qui bona fide ab eo, qui dom nus non erat, cùm crede­ret eum dom nū esse rem emerit, vel ex donatio [...]e, aliáve quavis justa causa acce­perit, is, eam rem, si mobilis erat, anno ubi (que) uno: si immo­bilis, b [...]ennio tantum in Italico solo usucaperet, nererum dominia in incerto essent. Et cùm hoc pla­citum erat putan. tibus antiquio­ribus, dominis suffice [...]e ad in­quitendas res saas praefata tempora, nobis mel [...]or fententia sedit, ne domini maturiùs suis rebus defraudentur, neque certo loco hoc beneficium concludatur. Et [...]deò Constitutionem super hoc promulgavimus, qua cautum est, ut res qu [...]dem mobiles per triennium; immobiles vero per longi temporis possessionem, id est, inter praesentes decennio, inter absentes viginti annis usucapiantur: Instit. lib 2. tit 6 in princ. by the twelve tables one year was enough for moveables, two for immoveables: If a man had possessed bona fide, & ex justo titulo so long. He was in for continuance. This Justinian altered, (or rather Tribonian,) for three years in the former, and ten in the later, inter prae­sentes, but if the owner were absent he was allowed twenty. This was calledNon usucapies nisi sint tibi tal [...]a quinque, Recta fides, justus titulus, res non vitiosa, Quodre [...] tradatur, possessio contint [...]e [...]ur: Gloss Quod autem, in Caus. 16. qu. 4. in Rub. praescriptio longi temporis, which yet satis­fied not in all: for it was needfull to bring in besidesVid Cu [...]a [...] parat. ad Cod. lib. 7. tit 22. Prae­scriptio longissimi temporis, which lengthened the leave to claim within thirty years, or in some cases within forty; and here with them most things stayed.Vid. parat. ad tit. 39 de praescriptione triginta vel quad raginta annorum.

By the feodall law (1) thirty years prescription was good, and He that had no investiture, and had been in so long and done services stood firm.

So by theSi quis per triginta annos rem aliquam ut feudum posseder [...]t, & servitium domino exhibuerit: quamvis de ea [...]re non sit investitus, praescriptione tamen triginta annorum se tueri potest: Obertus de Ort [...]. Fend. lib. 2 tit. 26, sect. 4. Et vid Gloss. fin. ad Feud. lib. 1. tit. de us [...] Med [...]olan. Canon in many things determinable hereby, though for one Church to prescribeCaus. 16. qu. 4 c. 1, 2, 3, 6, 8. 9. Decretal. Gregor. lib. 2. tit. 26. cap. 3. Twenty, or ten was enough in some cases The words see after transcribed in pag. 273 in marg. Tythes against ano­ther require forty years, and in some,Tit. eod c. 6. Adaures nostras pervenit duas Ecclesias litigasse super decimis, quas una earum in alterius paroch [...]a annis quadraginta possedit: & infra. Tuae fraternitati tenore prae­sentium innotescat, quod de Iure melior est conditio possidentis; Quia quadragenalis praescriptio omnem prorsus actionem excludit. other Cases.

Here at home has been much variety: and we have had no fewer then three sorts of measures to limit and set out the time of possibility of Recoveries by without or beyond the bound of Which, no hope.As, against a Church or a Religious house, tit. eod. c 8 & Caus. 16. qu. 4. c. 16. approving that of the Code, de Sacrosanct Ecc [...]es. Authent. Quas Actiones & Novel. 131. cap 6. B [...]t to hold Tythes, a Layman prescribes never. Quia cum L [...]ci decimas detinere non possant, cas nulla valent praescribere ratione: Decret. lib. 2. tit. 26. cap. 7.

[Page 269] 1. The yet standing and yet withall For it was by the Common Law, before the Statutes, says Littleton. Sect 170. most ancient and natural Rule is by comparing with theThe limitation of a Prescription gene­rally taken is from the time that no mans minde runneth to the contrary. Doct. & Stud. f. 19. as if that had been always. And so in the new Ad­ditiens to that Book. Add. 1. f. 4. Also abroad, Ductus aquae eujus or [...]go memoriam excesse­rit, jure constituti loco habetur. ff de aqua quotld l. 3. Sect. 4. Ac fortè non improbabi­liter dici potest, non esse hanc rem in sola praesumptione positam, sed jure gent [...]um vo [...]junta [...]ò inductam hanc legem, ut possessi o memoriam excedens, non interrupta, nec provocatione ad arbitrum interpellata. omninò dominium transferret. Credibile est enim in id concessisse gentes, cum ad pacem communem id vel maximè inter­esse [...]. Grot de Iure Bell. l. 2. c. 4. Sect. 9. knowledge of present men; if within the reach whereof any thing be seen and to be said as known and remembred, the Possessour is loose, and may be removed; if otherwise, Melior est conditio possidentis, He that has is se­cured his continuance of having.

2. But because this might flag, or prove uncertain, and is always wavering, some more certain bounds were thought fit to be enquired after, which as stakes fixed, at least at one end, migh determine huc usque shall inquiry come, and no fur­ther; precisely laying down what might be expected, as 'twere to a year and a day. As in Glanvils time, the Claim must be laid in someIn tract de de leg. Ang. l. 13. c. 33, 35, 36. Cases, since the Kings last Voyage into Normandy; inl [...]b. eod. ca. 3 5, 6. other, since his Coronation; in l. 2. cap. 3. & l. 12. c 10 Writs of Right, his Grandfather Henry 1. and if on this side these severall limits, nothing could be shewed to mo­lest, &c. beyond was as good as nothing. In Bractons time, under Henry 3. the widest Writ ofBract. de de­faltis, c 5. f. [...]73. & tract. de ex­cep [...] c. 19. Sect. 1. f. 416. Right was bounded by Henry 2. time, others narrower, according to the limitation of the20 H. 3. c 8. Statute of Merton. InFleta l. 4 c. 5. Sect 13 p 224. & l 6 c. 6. Sect 3. p. 401. Fletaes time, who lived (likely) undervid. Seldeni dissert. ad Flet. c. 10 Sect. 2. Edward 1. from the days of Richard 1. according to theMade about 3 Ed. 1. Statute of Westminster 1. cap. 38. And this it seems remained to Littletons time, about Henry 6. for Sect. 170. f. 113. he mentions the same to be the Hercules Pillar then, be­yond which no Claim could be laid to any thing.

3. But albeit these times of Limitation were reasonable when they were made (I make bold here toFrom Cook in his Instit. 2 on the statute of Merton. c. 8. p. 95. borrow a little piece) yet in process of time (there being set times ap­pointed in former Kings Reignes, from which as a Barque from the fixed Land the future went always further and further) the times of necessity grew too large whereupon many Sutes, [Page 270] Troubles and Inconveniencies did arise, and therefore the ma­kers of the Statute of 32 Henry 8. took another and more di­rect course (by setting stakes as it were at both ends of the stage,) Which might endure forever; and that was to impose diligence and vigilancy upon him that was to bring his Action, so that by one constant Law certain Limitations might serve, both for the time present, and for all the times to come, viz. That the Demandant should alledge Seisin in a Writ of Right not above sixty years next before the Teste of the Writ, in others thirty, in others fourty, in others fifty. This yet left some difficulty, which was after explained in 1 Mar. c. 5. Queen Maries time, and pieced out as to some trifling Sutes according to muchCook Instit. [...]od p 96. desire in21 Iac. 16. King James his time, and so do things I think remain with us at this day. Now from these severall Limitations of Prescription abroad and at home, and about them I cannot but note their general end, which was no doubt to prevent Sutes as much as might be, depending on proof remote and of dark days past, by limiting to fourty, fifty, or sixty years, seldome farther, &c. All which it was also fit to note [...], or at large, that by seeing what has been, not in this place or that, but All Abroad, we may the better make estimate of what we shall finde in our Case, by comparing the length, (wherein is also the strength,) of This prescription, with that has been generally reputed enough, and to establish a Right elsewhere. I confess the thing it self as to the equity of it seems not to me at first sight altogether soNot Prae­scriptionem esse odiosam. gloss. Praesidium ad no­vel. 9. fair and reasonable as that Thereon any thing should be settled, or There-from derived; for it seems as it were many times to settle aQuod initio vitiosum est non potest tractu tem­poris convalesce­re ff. de diversis reg. l. 29. Right upon a Wrong, a Due upon an Exclusion, (perhaps of Right) and at a venture such a one shall keep, what by Gift, Succession, Escheat, or otherwise May in due scanning perhaps belong to another: (Perhaps also to him that has it, But this is Ʋncertain, and Justice should never proceed but in a regular, constant, cer­tain, sure way:) And therefore the prudentNam de iure naturali praescri­ptiones non sunt inductae; nam de jure naturali iniquum est aliquem ditari cum aliena injuria. gloss. Legis. ad Caus. 16. qu. 4. cap. Praesulum. gloss upon the Decree scarce allows it to be according to the Laws of Equity [Page 271] andNay, it is contra naturalem aequitatem. gloss. vel injuria ad ff. de negotiis ge­stis. l. 1. Nature, wch would by no means have any oneAu old Rule of Pomponius, Iure naturae ae. quum est, nemi­nem cum alte­rius detrimento & injuria fieri lo­cupletiorem. ff. de diversis reg. juris antiq [...]. lib. 206. & vid. de condict. indeb. l 14. en­riched by the spoils of another, as here it often is, always may be. But then again on the contrary part it would also be consi­dered, That there had much need to be someOmnes acti­ones infra certum tempus habent li­mitari. Flet. li. 6. c. 16. Sect. 3. Tollit amensura­tionem (dotis) aliquando diu­turnitas temporis in perpetuum, cum omnis quere­la & omnis actio injuriarum limi­tata fit infia cer­tum tempus. Bra­cton. de Act. do­tis. ca. 17. Sect. 5. f. 314. end of strife; The negligent is but duly punished if he will not come in in some reasonable time; He knows written in the very face of the Law his perill if he do not come in to claim his own, nor is it fit Justice should wait ever; And if Controversies should be admitted of things whose knowledge is so farre off and out of our reach, that almost all the foot-steps are worn out by the continuance of Time, Our life is so brittle, changes so frequent, Arguments from what we see not so but probable, and yet so many, and on both sides, But above all the wit of man so fertile and pregnant the quarrelling way, That still some color would be found out or other, Why that should not be, that is, and that in the place thereof, which is not, and so our lives would be spent with quarrelling, as our means with charge: Where­fore, & Ne dominia rerum sint semper in incerto, as was the gloss before, it was prudently because necessarily determined to have some end, wherein if there wanted somewhat of Ju­stice, there might be amends made in freedom from perpetual trouble and all-consuming charge; some Hercules Club must be found out to strike the matter home in certainty one way or other, or rather some Alexanders sword, that what of the Gordian knot could not be untied, it might cut a [...]under, so here: when it grew tedious or rather impossible through the manifold complications of crafty Contrivances to bring the matter, whose whole stage was at a distance, to a certain end, for certain yet let some end be; and at a venture settle upon the Possessour: He May have Right, he has had for a long time the Thing, Possession is many points of the Law, (be­cause every man is supposed at home, and that to be a Mans own in which he hath dwelled a long time without higher ac­knowledgement or any ones controll,) and this He hath had no one can remember to the contrary but ever: therefore let him Continue toPrescription and antiquity of time fortifies most [...] Titles, and supposes the best beginning Law can give, Hobards Reports in Slades Case, pag. 297. injoy, and he that was so lazy as not come in some reasonable time for his Own, let him now see one have [Page 272] it that will be more carefull of it, and perhaps do more good with it. This may not be well, yet better then what is worse, Not exactly just, but the Good of Peace compensates the Evil of Injury, and a quiet suddain loss may prove better to the loser then a gainfull eternal contestation. Bono igitur Publico introducta est usucapio & praescriptio: as Gaius [...]ff. l. 41. tit. 3. L. 1. spake, This is now then for every ones good: Ʋt sit aliquid litium finis, asFulbeck part. ult. c. 4. f. 20. another makes it out; for now there will be quietness what ever there be else or more.Remembred by Cuiac in paratit. ad Cod. l. 7. tit. 34. Whence Va­lentinian made thankfull memory of his Predecessour Theo­dosius, as in favour of humane peace and tranquility, setting forth his Edict of this nature, which Cassiodorus called the great Patroness of mankinde; And if it do nothing else, it keeps the Peace, and where Peace is, either ready there are most worldly commodities, or Non invita sequentur, they will soon follow.

But this prescription that must be thus the soveraign and inriching Peacemaker, a virtual fine, (in the rational import of that word, quia ponit finem litibus,) mustNunc autem dicendum quali­ter transferuntur (dominia) sine titulo, traditione, per usucaptio­nem, sc. per lon­gam, continuam, & pacificam pos­sessionem ex diu­turno tempore & sine traditione, &c. Bracton de acquir. rerum dom. c. 22. have three Conditions, which I but name. It must be, 1. Long: (how long hath been said already.) 2. Continual: that isQuod si per naturalem posses­sionem possessio interrupta fuerit, à [...] die recuperatae possessionis novi triginta anni in omnibus praescriptionibus numerabuntur. Gratian. Caus. 16. qu. 4 c. 15. An abator or disseisor dying s [...]ised after five years quiet possesssion gaineth Right to h [...]s heir, that the owner shall be put to his action, and if he let it run to sixty, shall never recover. Bacon. of the use ose of the Law p. 25. For, Vsucapio inde dicta est, quod per usum aliquid cap [...]t & aufert. Vsus enim per lapsum temporis a limit [...]es corporales priori domino, & transfert in alium. Calvin. Lexic Iurid. p. 595. with­out interruption, by word or deed, by violence or gentle claim. 3. Peaceable, by the true Owners patient and dead negligence. For if he stir, the bone cannot settle to grow awry, the Winde blowing hinders the Water for a time set­ling into Ice by coagulation; so strength is here forbidden to grow of the Adversaries Right, by him that if he strives cannot recover his own. And these three things observed give a consci­onable Vsucapiens plenum jus incipit habere. ff. de rei vindic. L. 17. in fine. Sicut tempus est modus inducendae & tollendae obligationis, ita erit modus acqui [...]endae possessionis. Longa enim possessio (sicut jus) parit jus possidendi & tollit actionem vero domino, &c. Bract. ubi sup. Right, against all but one, was said before; Now against him: for Time though it can do nothing, yet by it are done many things, and though it work not at all, yet without [Page 273] it is nothing else wrought. Tempus ex suapte natura vim nullam effectricem habet; Nihil enim fit à tempore, quanquam nihil non fit in tempore, asG [...]t de Iure Belli, l. 2. cap. 4. Sect 1. one spake pithily. And there­fore, as it is a means ofVid. Flet. l. 4 cap. 5. Sect. 12. & Bract. de Action. cap. 2. Sect. 13. f. 100. dissolving, so it is also ofVid▪ Flet. ca. eod. Sect. 15. Qui rem suam ab alio teneri sc [...]t, nec quicquam contradicit multo tempore, is, nisi causa alia mani­festè appareat, non videtur id alio fecisse animo, quam quod rem illam in sua [...]um rerum nu­mero esse nollet. Grot. de jure bell. lib. 2. cap. 4. Sect. 5. con­tracting obligations; Settling and unsettling, binding, loo­sing, doing and undoing. Indeed every thing is done by Time, and without it is done nothing that is done. The Crooked grows Straight by it, the wrong, right; Ʋsurpa­tion, Justice; the Invader, an Owner; And he that nought else has but what Length of Time can give, has (with that, and possession supposed) enough to answer all that can be said to disturb him.

Which Soveraign, and almost unreasonable priviledge is allowed uponPraescriptio­num aliae sunt in­troductae odio petentis & favo­re possidentis, a­liae tantum odio petentis. Qui enim bona fide, & justo titulo rem praesentis per decennium, absentis vero per vicennium tenu­erit, perpetua ex­ceptione tutus erit, non solùm adversus alios, sed etiam adver­sus creditores quibus res ipsa obligata fuerat, etiam adversus dominum, and shall regain if he be ejected. Si autem nullo titulo, bo­na tamen fide per tricennium rem alienam possederit, simili gaudebit praesidio, &c. Hae possessiones introductae sunt favore possidentis, & odio petentis, quia lex favet his, qui bona fide, & justo titu­lo, vel bona fide tantùm possident: odit autem & punit circa rem suam negligentes & desides. Quòd si mala fide rem alienam quis possidere coeperit post triginta annos adversus omnem petentem excep­tione tutus erit. Gratian. ubi sup. And yet the intruding possessour is after [...]ards discountenanced what may be, and by the least occasion set beside the sad [...]le or kept from recovering: But the lazy owner shall least and last be reli [...]ved. a double consideration, as well of favour to the possessour, as hatred to the negligent of his own no [...] ­seeker: for if he be possessed upon valuable consideration, bo­na fide, and deceived but as an honest wise man might be, there is so much pity of his wrong that he is kept in in favour and for his wrongs sake: But if he were a meer invader, and as he entred, continue a meer Usurper, yet so much doth Reason and the Law hate him that is [...]lothful in his own in­teresse, that rather then he shall have any thing, wrong shall take place (by right) against right, and rather then Ju­stice shall always wait upon him that neglects himself, her constant purpose of giving every one his due shall wax weary, and give him onely dismission of suit at last instead of reme­dy. Currit tempus contra desidiosos, &c. as was said, and though the Law could even wish too that He should not have it that has, yet in hatred of his sloth that should seek, He shall never be put out, nor the right owner in.

[Page 274] All this of visible reall things, but so as the same rules hold, mutatis mutandis, of Rights and Services: Whatsoe­ver (being intractable) is possessed andDictum est, qualiter, &c. nunc autem dicendum est qualiter acquiri­t [...]r possessio rei incorporalis, si­cut possessio juris viz. alicujus ser­vitutis, per pati­eatiam, quae trabitur ad con­sensum & lon­gum usum & pacificum, sine constitutione vel expressa volun­tate. Patientia vero trahitur ad consensum, & acquiritur posses­sio juris per u­sum; ut si do­minus proprieta­tis liberum ha­bens fundum, ex patientia per­miserit uti vici­num suum, prae­sens & sciens, in sundo suo, aliqua servitute, ubi jus utendi non habuerit, sicut in pastu p [...]o­rum, itinere, vel actu vel aquaeductu vel hujusmodi per longum tempus, pacificè sine interruptio­ne: this presumes leave and creates right. Bracton ubi sup. owned by use, a continuance of that use conveighing still so much vigour and proportionable quickness to the thing it self, that it daily in­creases in strength more and more: If it were weak it grows strong, If it were not able to stand alone, it doth now, tra­ctu temporis convalescere, and a man Hath that he Had [...], nor can another Forbid, what he might at first have forbid­den. As if a man shall allow a way, an Aquaeduct, and by like reason liberty to come once a year and take such a thing, a tree from the Forest, the tenth row when the Coppice is cut, a sheaf or a tenth sheaf out of the field when it is reaped, or the like: Ex tali usu & patientia praesumitur de consensu & de voluntate: & ita acquiritur possessio ex tempore, ita quòd taliter u [...]ens sine brevi & judicio ejici non poterit, &c. as we may say in the words of Bracton. But then there must be pre­sence, and science, the use must not be clandestine, nor in the night, &c. and many other such things there are, de qui­bus hic non est narrandi locus; but they do not contradict or contravene these things or our aim or scope.

This I take to be the doctrine, and general nature of this accident, in part abroad, but most at home, leading to what prescription is, to our purpose: from which it cannot but be evident, That such a thing there is, The Law allows it, There is plea for it and from it; In time it bindes the hands that were at liberty, and creates a right to that was at first but a lazy permission, or courteous concession, or perhaps vi­olent intrusion: We have seen in what time this may be done, (more then by our bare conjecture,) any limitation scarce exceeding sixty years; and that in a Writ of Right (the high­est with us) the possessour need not prescribe farther to barre out any pretender. In some tender speciall cases indeed, (I [Page 275] should have said,) 100 years were allowed, asVt inter divi­num publicum (que) jus, & privata commoda com­petens discretio [...]it, sancimus, si­quis al [...]quam re­liquerit haeredi­tatem, vel lega­tum, vel fidei commissum, vel donationis titulo aliquid dederit, vel vendiderit, sive sacro-sanctis Ecclesiis sive ve­ne [...] abilibus Ze­non [...]bus vel pro­chotrophiis, vel monasteriis masculorum, vel virginum, vel orphanotrophiis, vel brephotrophiis, vel gerontocomiis, nec non juri civitatum, vel donatorum, vel venditorum, vel relictorum eis sit longaeva exactio, nulla temporum solita praescriptione coa [...]ctanda. Sed & si in redemptionem captivorum quaedam pecuniae, vel res relictae, vel legitimo modo donatae sunt; & earum exactionem longissimam esse censemus. Et nobis quidem cordi erat nullis temporum metis hujusmodi actiones circumcludi; sed ne videamur in infi­nitum hanc extendere, longissimum vitae hominum tempus eligimus: & non aliter eam actionem finiri concedimus nisi centum annorum curricula excesserint, tunc enim tan [...]ummodo hujuscemodi exactiones evanescere sinimus. Cod. de Sacro▪ sanct. Ecclesiis, l. 23. in things given to charitable uses which might be claimed within the Century, (but this after shortned toVid. in Authent. Quas actiones, there following, &c. Vt omnes praescriptiones contra Ecclesias, sint 40 annorum. Novel. 131. cap. 6. forty:) and in the an­cient Vid. Novel 9. & Authent. Quas actiones, alledged but now, & Gratian▪ Caus. 13. quest. 2. endowments of the Church of Rome, and former­ly noInstit. lib. 2. tit. 6. de usucap. Sect. 9. prescription could run ever against Res Fisci, or Vniversas terras quae à colonis vel emphyteuticariis dominici jur [...]s, reipublicae, vel ju [...]is Sa­crorum Templorum, in qualibet provincia venditae, vel ullo alio pacto al [...]enatae sunt, ab his qui per­peram atque contra leges cas detinent, nulla longi temporis praescriptione officiente jubemus restitu [...]: ita ut nec pretium quidem iniquis comparatoribus reposcere liceat. Dat- 5. non. Iul. Const. eal. A. 4. & Eutropio Coss. Ced. lib. 7. tit. Ne rei dominicae vel templorum vendicatio, temporis praescriptione submoveatur. L. 2. The title might never be secured, no [...] the purchase recouered. things of a Temple, orVsucaptionem recipiunt maximè res corporales exceptis rebus sacris, sanctis, publicis, 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, asPa. 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 [Page 276] 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 WhereVbi eadem est ratio, ibi idē jus. Cook Instit. 1 fol. 56. It is a maxim in the Law of England, that All cas [...]s lik [...] ▪ 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) Ʋt 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 [Page 277] 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 [...]ame: 'Tis 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, (lik [...] the [...]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,Fortes [...]. de Laud [...]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,M [...] Selden in hi [...] Hist. of of Tythes. and not to be [...]et behinde a­ny of the rest, who wrote purposely near half a prescription space of years since upon this argument, even most learnedly. [Page 278] 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 thingHoc 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, but de Jure, of the right, which has not alwayes taken place in action; (for good Laws have not alwayes had the good hap to conveigh so much felicity to the world as they might, by being throughly and fully Obeyed:) but in the following he comes home. Chap. 10. HePag. 278. acknowledges some payment under the Saxons by K. Knouts letter yet extant, or if not, punishment: Many Churches under the Conqueror arePag. 280. marked with, Ibi decimae, in that most authentique memoriall of our Nation, or perhaps this part of the world, the book of Domus-Dei, as in Sussex, Hampshire, about Basingstoke, &c. though this neither generall, nor common then. OtherPag. 282. evidences of dueness and payment are under Hen. 1 & Hen. 2. and to them, And now they began to settle: A parochial Right is Pag. 283. acknowledged and supposed by Alex. 3. & Hadr. 4. in their Epistles hither treating of them (they lived about the begin­ning of Hen. 2.) and it were somewhat hard to disbelieve in matter of fact, such and so solemn asseverations and depositi­ons. But about Edw. 1. a parochiall right is granted by him­self, evident from the Stat. of Circumspecte agatis, and the writ of Right of advowson, of that date, where the Esplees are chiefly laid in Tythes: Pag. 285. And by the practise of the King­dom it became clear law (as it remains also at this day, he says) that Regularly, if no other title or discharge, to be specially pleaded or shewed in the allegation of the defendant might ap­pear, [Page 279] every Parson had a common right to the Tythes of all annuall increase (prediall and mixt) accruing within the limits of his parish, without shewing other title to them in his Libell. After, giving other things, as of Cornwall, from Chaucer, &c. HePag 288. concludes plainly the received and acknowledged Pa­rochiall right in the practise of those times, which hath to this day continued: Neither is it necessary to adde more for the uniform continuance of it. Save where a Statute hath dis­charged, or a Modus decimandi, (which being Discharges, doe clearly presuppose and imply one ration:) And this (being a Lawyer, he says) is Regularly clear Law. Some curiosities there follow, and judicious, usefull, needfull disquisitions, but so as nothing impeaches a full and universall Parochiall Right setled nine half hundred years agoe, even by his con­cession: And he hath been generally taken to be no great favouring friend to what more then needs he must grant in the Churches behalf, though in this particular I never held him injurious or undeserving: With his grant taken to be most sparing, he howsoever grants this, and this to our pur­pose Enough. He avers moreover Chap. 11. thatPage 362. after Innoc. 3. time, all lands paid according to the Canons; and therefore no other title was made by the Archdeacon of Lewes to the Tythes of Barrington then in demand, then that the Land lay infra limites Parochiae suae de Barenton. & chap. 14. giving the history of their Jurisdiction tripartitely, into 1. that was before the Norman. 2. to Hen. 2. And 3. since: he has enough to the same purpose, the minde whereof having been given before, needs not to be here repeated again. And these things at home are agreeable to what was abroad, as cut out by the same rule: for as times then were, the Canon sate over all, which how it discharged it self, was shewedPage 167. before, Chap. 7. for Parochiall payment by the obeyed De­cretals. Cap. cum con­tingat. tit. de lecimis Decret. Gregor. l. 3. Quia perceptio decimarum ad parochiales Ec­clesias de Jure communi pertinet, as the reason is given in case of new broke grounds: and the action accordingly was, Jure communi fundata intentio, that is, by common right Tythes praediall and mixt were due to the Parish Rectour, if they were not by some speciall title enjoyed by some other Church, or [Page 280] discharged by Canonicall exemption: sect. 1. for they were not so much given or granted by the Owners as then sup­posed, or exacted or expected of or from them by vertue of any act of theirs, as to concession (of the right at first) or after delivery, As they had been Reserved by God at first, at the grant of all, in signum universalis dominii, quasi quodam titulo speciali sibi Domino decimas reservante, as the Law speaks, Never making the right out of himself that it might return: As a load of Hay, a Mine of Lead or other Mettall belonging to the Lord, is not so much a due issuable out of that land he hath let to his Tenant, as a reservation to himself at first when the Land was let, and he parted with the fruit of the ground; or as if the same Lord cuts his wood or timber, and carries it away from his tenants land, His tenant Pays it not, but gives way to the taking of that was always excepted and reserved; Or as no Mannour or Parish ever laid out any Kings high-way, but the King alwayes kept it for his other subjects out of the grant from himselfe So, I say, God reserved (the times seemed to take things so,) the tenth as his part never parted with, and as his Own (some­what like a quitrent) it might be seized on Jure communi without any order or Act of man, by vertue of primary excep­tion or reservation. And according to these things, the Rector in his libell, Page 151. upon the allowed Actio Consessoria, needed propose no more then that the demanded increase arose within his parish, the rest would follow: Which action, if Durand disallowed, grounded upon common right supposed, and ap­proved rather of a Condictio ex canone, by some positive made law, (not by generall right but Statute-Canon-Law, or agreed on Constitution) this is all one to my purpose, and for an allowed granted right in those days, which is all I seek for. Of what is behither, (trusting to any that pretends to know,) I need say nothing.

All this from one man, yet living, and worthily of fame enough for learning, not confined by our own seas, nor scarce Christendome, Neither can [...]e but know, and I beleeve, will be ready to averr many times more in this case; that if ho­mage were paid to the earthly Lord, rents or services to the [Page 281] publique, or any thing to any man, this, signum universalis dominii, was still allowed to Religion, (of more publique and nearer, inward concernment then any thing else) even to Gods house (who is supreme Lord of All) and his pub­lique service; neither may his Ministers but prescribe long enough for it,Numb. 18. 21. as due, under the notion of equivalent to what was Levi's under the law, Behold I have given them the tenth in Israel ( [...]) for their lot, for their service which they perform in the tabernacle of the congregation.

But now steps forth Doctor Tildesley: Animadversions on Mr. Seldens Hist. of Tythes. whom this large extent satisfies not, and therefore he undertakes the higher dark times of much further, and would not but that uni­versall right and possession of these dues has been here Co­aevall with the Christian law, and of the same date for begin­ning as Baptisme and the ten Commandements: He endea­vours to reply to the exception, and answer the plea for the broken payment till about Hen. 2. As from the secundum Antiquam legem debemus, in K. Knouts Epistle, & sicut praedecessores nostri concesserunt, an ancient grant Then; from the grave testimony of Austine our first preachers time, in­serted into K. Edwards so famous law; from a likely fair interpretation of those soant returns of Tythes inI have retained this word all along in difference from the usuall represen­tation thereof, As well because it seems most reaso­nable giving some­thing of the bo [...]k not usually heeded, sc. that it was kep [...] In the Church; As also because I had information from the most Reverend and Learned L. Primate of Ireland, that it is the same he hath seen in m [...]ny ancient Ma­nuscripts. After­wards I found the same also in the Latin preface to the third book of the L. Cooks Re­ports. The co-inci­dence of Both which to mine own conjecture before, did not a little erect and stablish my wavering and doubting confi­dence. Domus-Dei Book, that it might be but according to the opinion of the Inquisitors prevailing (as to the affirmative or negative) in the question of Expediency or Duty, Whether it were fit or meant they sho [...]ld be returned, &c? But I examine not the validity of eithers arguments or answers, and as little minde the seen possibility of more strength on one part, or reply on the other: let their arguments fight (their mindes being in Charity;) which ever prevail, I have in the mean time gained a certain doubtfulness of those times under conten­tion, and as much certainty of enough beside since: on This side over and over sufficient for prescription; Beyond, that which May yet afford more store, and this from those were able and are famous for their purposed disquisitions.

Now after this abundance together, it may be no doubt su­perfluous to look abroad for more. What is within the reach of common observation could hardly escape their views, [Page 282] especially His, who had examined that and more: What might be had from history, pleas, writs, statutes, and other information of best but common credit, would be but to light a candle before His Sun, or as the gleaning of a little after full heaps, and therefore may well here be spared: In short, The clear evidence of Things abroad is such, and the light of Truth concerning them so common beating in every ones eys, that no one that is fit to speak, but must have knowledge enough to say, that for Centuries upon Centuries, ages and generations, and the repeated revolutions of many hundred years, to create prescription by continuance of paying and receiving, There hath been time enough, and enough, and enough and spare; and if twice five times sufficient to raise it in another case may here serve, (set aside the otherwise suffi­cient pleas of Donation and Possession) none of this will be wanting with either greatest assurance or faire probability.

It is said there could be none without possession (whereon 'tis founded,) and every one knows where the dues are kept all the year; This was prevented before: for both a Possessi­on, and through coutinuance of time is for that Right is made use of but once a year, or when there is occasion: Let the truth represented in a few more lines of Master Selden be the Coronis of this part. He observes,Chap. 6. Sect. 2. p. 72. that out of any conti­nuance alone of voluntary payment a kinde of Parochial right was then created, (speaking of about the ninth Century) though a voluntary consecration might do the same; and Pa. 78. afterwards, as this wars the cause of Right to a Church whereto they had been so conveighed; so, Continuall Pay­ment of many years did so settle the perpetuall Right of the Tythes of any Family then, that whither soever it transplant­ed it self, it must still send whither it had used; as if this con­tinuance had for ever so bound it, that it might not pay them otherwise. This then; and it was about seven or eight hundred years ago; How much more strength then must an usage that has its force and being from time, and so according to nature, should, (as it does) tractu temporis convalescere; get vigour in its age, and be more fat and well liking? How much more strength, I say, must this use have Now, that how [Page 283] much the older it is, is still always so much the stronger? And if in some Countries there may be a prescription, De non deci­mando, totally, and with us it usually prevails, for a Modus de­cimandi, which is against the Church, compared in matter of Right or Wrong to an Orphan before, How much more reasonMeritò sum­ma habetur Ra­tio, quae pro Re­gione facit. Ho­bards Reports in Slades Case, pag. 295. is there that the Church, The Pillar and Ground of Truth, should prescribe for her self, then others against it? that that prevail which tends visibly and likely to the support of the Gospel, then what may prove the ruine and suppressing of it? whereby the service of God may be upheld, then whereby it may cease? Shall Time be of force to say, A Right shall Not be paid, and shall it not settle more firmly, that A Right shall? It must not, Rather then it must,? In other things prescription is generally a good Plea, for Rights and things, and so Doubless it is in This.

CHAP. XXXIII.

JAmque opus exegi, and hope I have not failed in either part of my underta­king, that if either Title of three, and All good be Good, if either string of three will hold, and all usually strong enough, I have not fallen short of the proof of a Civil Right, and that by that Law by which here All things are possessed. Is that any ones is Given him? We have shewed plainly this Donation. Can this gift be confirmed by confirmation? This hath been offered and largely diffused, all abroad abundantly. Is that I have, Mine? Sure, 'tis naturally, and none shall deprive me without wrong for Possessions sake. Now where is the Pos­session Here, the World sees. May this Right founded in God, in Heaven Originally, on Man but derivatively, and by consequent substitution, fright boldest men from laying on their hands, and [Page 284] scambling with their Maker? What even the Law hath said, in this behalf hath been heard and may be remembred. Ought I still have, what I Have had? I challenge a liberty, a way, a right, a power to present, meerly because I have had, and so used: And this is not here wanting for Ages and Generations. The result of all questionless, A CIVIL TITLE, firmly: and by these three distinct ways, by which men Gene­rally injoy with us, and they have enough in Any, by All meet­ing is here a Conspiration of at least a treble sufficiency. Bless we God, who hath not left the support of his Gospel Here to the Good will of Men, and uncertain, tottering, voluntary Contributions, but as was said at beginning, hath given habi­tation to this truth (with us in England) Firm and Stable, and by the helping seconding acts of favouring state raised and established (as to the outward frame and support there­of) his Temple on the Mount of the same materials and un­der equal shelter of temporal strength and firmness, with the lower buildings of the valley; The Church is as strong, stands as fast as the mannour house, and even as much Lower Law for the Civil Temporal Right of these Dues, as any other mens Posses­sions or Inheritances do lay claim to for their sufficient suppor­tation. This is the Lords doing and wonderfull in our eys, and so let it be also gracious, and the occasion of much thankfulness with his People: Looked upon as no other then a Work of his Very favourable providence for the safe and long Conti­nuance of his own honour, and one of those comforts that may be among the Greatest to those that love the Lord Jesus Christ in sincerity; A means of firm establishment of the Go­spels Ministery, and to hold out that blessed light of the Chri­stians Law to us which may be a Lamp to our feet, and a Lan­tern to our paths, to guide us into the ways of peace, in exclu­sion of Saturn, Jupiter, Mahomet, Frea, Thor, Woden, or whosoever shall go about to recover or obtain a place of ho­nour in our Temples, now dedicated to the honour of the most high God, and his Son Jesus Christ, with the Holy Ghost, to whom be all honour and glory in Them and through the World for ever and ever. And all these things made good too by no other then those have been reputed [Page 285] most proper strengths, The Laws of the Land, No other Lan­guage almost used, no other Books, or but rarely, cited, Among that world of Volumes that are of other things, and some on this subject, in another way, yet none chosen, or stuck to, but these & the most of them such, and so classical and authoritative, that they make the Judgment even of the very Judges. I desire may here not unseasonably be awaked to pre­sent remembrance and due observation which was laid down before, but had There so much amplification, because it was to have here its present use and operation, and it is, that This Law is here below in this World, The onely Ʋmpire of all things, the Rule of Right, the Judge of Own, the Stinter of Strifes, and the only Didoes Thong that makes out the Line by which the Limit is drawn, that fences Severals from the Com­mon and among themselves, the onely Donor and Continuer, Preserver, Sustainer and Establisher of Every mans Due and Own, by which he hath to himself What he hath, and No one else hath any thing to do with His Right or Inheritance: that gives the Master more then the Servant, the Gentleman more then his Tenant, the Nobleman more than his Fermour, or the rich and wealthy Merchant then his neighbour Mecha­nick; intitles him to his Land (or Rent) fences in his Inclo­sure, pales his park, makes a Thief that enters, and takes, and carries away, and inables him to ask, and have, and sue, and ob­tain, and recover against the most stubborn and unconscionable injustice, Whereby he is so far as he is, Lord and Master of All things. The Law, I say, The Law it self doth this Alone, ap­portioning thus to every one certainly and justly, to every fellow-Commoner His Own (in how much disproportion of Quantity soever, with the same Equality of Justice,) to one man Delicates, to Another but bread; to One Silks, to Ano­ther Frize; to him Robes, to the other scarce Rags: All this doth one and the self same law ministring to each as it listeth, whether a Mite or a Talent, a Garden or a Field, a Palace or a Cotage: And if Then this Law should fail, this Rule by any device be Made to warp, and this Strong Spring prove now too weak (in its full force by all Authority) to bring in known dues to Some, (who have the same claim with All,) who [Page 286] assures that not to Others also, who can pretend to expect by no further or stronger? If this Judge should not be able to make good his sentence, If this bountifull hand should wi­ther, and prove short to reach out allotted proportions to Whomsoever under equall reason of Right now, Who di­stinguishes the Sinews, or can warrant their Office long to quicken and actuate those fingers must reach to the wealthy Their plenty and abundance? Or not rather doubt their weakness or strength, quickness or deadness, life and vigour, or lost power and infirmity may have together and to All (as proceeding fom the same Cause of liveliness or obstructi­on) the same Uniformity? This is the Basis whereon all is settled, the Rock whereon all is placed, the great Bottom whereon all is imbarqued, that in England we call Goods and kept a floating; If any should think himselfe so cunning with his malice (prompted on by his Covetousness, for it can be nothing else,) that He thinks he can sink a part, boring a hole at that end where his neighbours Goods are laid up, (the servants of publick holy work their wealth and sustenance is treasured) (without further regard to the Community within,) Let him take heed ere long he hear Not the lowd and shrill Complaints (with fearfull Out-cries) of all his fel­low perishing Merchants, who are preserved in and by the same, and whose property and safety must all by Consequent be in danger to be lost or gained, sink or swim Together, to sa­tisfie the greedy desires of those that come plainly enough within the compass ofIam. 4 2, 3. St. James his Character, Ye covet and quarrell, and ask and yet ye have not because ye would con­sume it on your lusts. And let great Possessours Chiefly look to themselves, for—&c.—I was going on to due and nearer application, but the figure Aposiopesis lays my hand upon my lip, and forbids to speak meaning well, what may be ill interpreted, and therefore prudently and silently let this inference be left to the working of every ones own Christian and reasonable thoughts. Onely this I cannot but add, That there are seen great disproportions in the World, and some have notable advantage thereby, The Ground of All which is the Law: There are very great heaps, injoyed with security, [Page 287] and none dares now touch the property of the rich and weal­thy in a farthing; If this be touched and removed or violated, the bound is going that keeps All from primitive Community, And Therefore they should think much hereon who Have much to lose; They should love to keep the Fence whole who would not have All Common, & the boldness must be extraor­dinary of those other who in private condition Dare venture to tamper with the Foundation of all Distances, medling with that in Politicks does as much as the grace of God in Religion ma­king one Man to differ frō another in wheresoever he does differ: 1 Cor. 4 7▪ For what hast thou thou hast not received hereby?1 Tim. 6. 17. and that gives us all things plentifully and ichly, sol ely & only to enjoy.

But now some one May say, These are but Logical Argu­ments, humane Reasonings, fallible and liable to Mistake; Whereunto I answer as readily, assuredly Even so, and there is no doubt of it: None so far out of the way as he that thinks he cannot err, and incurably too, for as much as this perswasio [...] in his minde is as bad as poyson in his soul, hindring all possibility of healing his errour. If then replied what farther probabi­lity, It is not so here, and This is right? Have Others thought the same? Hath any thing been done accordingly? How have the fruit of such perswasions or Actions been exhibited in view and in things existent? I answer, Well enough: And this leads inquiry into two things yet behinde fitly, and to this place reserved, and they are, 1. What the Lawyers have given in as their Opinion upon the former or like Grounds. 2. And what has been D [...]ne: What the one have thought, and has been the fruit of the other seen in the World.

And first, Ask the learned in their profession: It uses to be so, and prudence thinks it has had especiall work in such obeyed directions. To the Physitian in doubt of a disease; To the Artificer in a point of skill; To the Divine in a Case of Conscience; To the Husbandman or Artist in that their callings or conversations fit them to direct about: Every one of these is wise in his work, as the wise man says, and we use to rely on the Practised and Experienced. Go then to the Student, Ask the Counsellor, Move the Judge, Apply to a whole Jury of Judges, or the Corporation of Learned Men, dispersed through the Land, There is never a one will set his [Page 288] hand or his thought to the Contrary, or deny it to This, That Tythes are as due to their due Receivers as any thing else to whomsoever it is due: He cannot go against his own light, He must know This, and he ought and will subscribe and do ac­cordingly. 'Twere strange to finde one of a Kinde singular from all the rest: He were a Monster of his profession that had the protuberation of a strange opinion excessive and swel­ling out of his bosome, different from all other of his sort: And as such they would look upon him at Westminster, that should peep out into the world with this new discovery, that Tythes are any longer Alms, or a Voluntary Benevolence for the support of Christian truth, not Duty and a Due by strict retributive Justice. Have they not councelled? Have they not practised? Have they not judged? Do they not Judge, and still commit sentence to execution accordingly? And ma­nage the whole series of their most honourable studies, and imployments Still as upon such a Supposition? Unwilling men have not Given, but Paid: Could they ever relieve them? They have complained, Their goods upon this pre­tence have been taken from them: Where was their re­medy? Their Neighbour Bench had Ordered, Appoint­ed, Given, It should be so: Whence any Comfort! Nay, They, the Secular Courts themselves have assisted. For if the Consistory appointed, and the convicted denyed to pay, The sentence of Excommunication was Orderly and Leisurely but Certainly backed with the Writ De Excommunicato Capien­do, to take him that refused as a Rebellious Son of the Church into safe Custody of the State, as contumacious and refractory to allowed orders,Ridley: View of the Laws par. 3. chap. 2. sect. 2, 3, 5, 6. and No relief, but still and more assistance and farther prosequution by whatsoever Ployden and Littleton could do, that one sword might help another. Nay, themselves have interposed (some say, Too far; the Statute never meant it) at the first instance, and drave on the Statute of treble damages for Justice to Execution in their Court: And were they not Just even when they were, Judg­ing as the King Ahashuerus desired the Queen should be, Vashti according to Law? Esth. 1. 15.

But to instance in some particulars. Of which those that offer themselves are too many, therefore I content to take up [Page 289] my self with a few: Beginning with that right worshipfull and learned Benefactor even to the Learning of an Universi­ty, the most deserving of Religion, Vertue, Learning, and all Goodness, Sir Henry Spelman. He was not indeed a Lawyer; but More: Himself bewails the mis-guiding of his tender yearsIn praefat▪ ad Glossar. pa. 1. and in his Treatise of Tythes, pa. 161. too soon out of the direct way to gradua­ted and professing in that most excellent knowledge; But he that shall heed the demonstration he gives the world of his Sufficiency in those Noble Studies by his Glossary and sun­dry other exact pieces extant, will be forced to confess him above even measure for a Professour, and not unworthy to teach some Masters; As having digged down to the founda­tion of our Fundamentals, and not unworthy to sit in the highest Chair of the Learned. Now he tells us in one piece, (as I remember, for I have not the Book by me,) that al­though Tythes and other Rights of the Clergy had not been primarily due unto God, by the (immediate) rule of his Word, yet Are they Now His, and separate from us by the voluntary gift and dedication of our ancient Kings and Pre­decessours: and who shall violate the will of the dead! whose impiety shall dare alter, change, invert, divert the streams of their pious bounty, and heavenly inspired charity, out of those channels their wills set them in, to move toward and end in the advancement of Gods glory! If it be but a Mans Testament,Gal. 3. 15. saith Saint Paul, who disannulleth or addeth thereto, being once confirmed? and shall not religious in­dowments be yet more safe, and from violation, being Given Legacies, and having all possible humane confirmation! And in a Treatise published since his death, he is yet more ex­press; ;Tis fully and solely of the Right of Tythes, and (ta­king the subject at large) He begins, That God will have a part not onely of our Time, but Goods: That Christ released not Levi's part in them: That there is something in nature for That duenesse and proportion: That they are due by the Ecclesiastical Laws of Councels, by the imprinted Laws of Nature, by the written Laws of God, by the received Ordi­nances of Nations, and lastly, screwing it up to the equall heighth of our proposition to a syllable, That they are due [Page 290] (with us) by the Law of our Land. Chap. 27. pa. 111 &c. By what Law? the very Secular, Temporal, All-ruling, All-giving, which settles all men in their possessions and inheritances; and he alledges for it divers of those principles which before (as not borrowing of him) we alledged to this purpose: (whence also we hope We have not been mistaken, because we finde his vote con­senting and strengthning ours.) As K. Edwards Law, K. Aethelstanes Law, K. Edmonds Law, K. Edgar, Knout, and the Confessour, beside the Conquerours:

Heu tot sancitas per plurima saecula leges
Hauserit una dies! hora una! & perfidus error!

as he exclaims: Shall one mans days change all so many! and the fruit of best humane wisdome so ripened by time, and grown (as an Oak) by leisurely degrees to greatest Maturity of strength be pulled down by sudden revocation! If the things were lawfully conferred, (as none can doubt but they were so, lawfully,) Then let us consider, (says he) how fear­full a thing it is to pull them from God! to rend them from the Church! to violate the dedications of our Fathers! the Oaths of our Ancestours! the Decrees of so many Parliaments! and finally, to throw our selves into those horrible curses that the whole Kingdome hath contracted with God (as Nehemiah and the Jews did, Nehem. 10.) should fall upon them if they trans­gress herein! Say then that Tythes were not Originally due unto God, &c. ye [...] are we in the case of Nehemiah and the Jews, Nehem. 10. 32. They made Statutes by themselves to give every year the third part of a shekel for the service of the house of God. And (so) our Fathers made Laws among themselves, to give a portion of their Land, and the tenth part of their substance, that is, the Parsonages for the service of the house of God.Deut 23. 20. If they were not due before, they are now due: For, When thou vowest a vow unto the Lord thy God, thou shalt not be slack to pay it, for Jehovah thy God will surely require it of thee, and [...]o it should be sin unto thee. Therefore see Act. 5. 4. If the King give a gift of his inheri­tance to his son,Ezek. 46. 17. his son shall have it: If he give it to his servant, his servant shall have it, (their times:) If the King then give a gift to his Father, that is, God Almighty, shall [Page 291] not he have it? or, the servant to his Master and Maker, shall not he enjoy it? Who hath power to take that from God, which was given unto him (if not by vertue of any command from, yet) according to his word, &c.

Thus far that learned and pious Knight: Which yet I have not transcribed so fully as I meant, because the words of the Laws alledged by him, in the sense we doe, and for proof of the same conclusion, were represented in words at length before upon occasion; And yet thus much too was needful to shew consent, that we vent not, nor invent of our own, but of the same words make construction to the same purpose, and have the same apprehension of things upon the same grounds he both had and gave: Premises and Conclusion the same from the same; for singularity either of opinion or proof brings always with it some suspition. We see, he saith & here proveth, that beside Canonical, Natural, Moral, and as it seems unto him, Divine Law, our Civil Laws have added what­ever of strength they can give to create a Topical and English Political home-right of Dominion & Power: Jure Soli as they use to speak, as well as Jure Poli, to settle these Dues where they are. The former may have been our Ancestory Prin­ciples and Rules which guided them at first in settling as they did, (and with these, many things else,) But now we little need to go so far, (unless ex abundanti,) for Surplusage of strength; for however it may have been disputable at first of the Natural or Moral right (as of sundry other things, Ma­nours, Honours, Inheritances, &c.) which concerneth also the Indians yet, or other Infidel Nations, in state that ours once was of, To be converted, where, nothing publick hath been done or passed for them; Yet as when Ananias and Sapphi­ra had given, the state of things was altered, and their Duty or Danger; So here the Pactional and Civil having made chains of continual and successive binding Ordinances to hold, re­tain, and keep these things fast and thus, Now the principles may stand by, the inference being justly made, stablished and of force, and without further inquiry, the Stated Made Right must be here enough, or None have with us any thing.

This worthy and Worshipful Knight (whose degree gave [Page 292] him not so much title to those honouring Epithetes, as his Worth and true Worthiness, as we would call it Worthy­ship, and who honoured his Titles, as much as They Him) was a man singularly Learned, profoundly Judicious, of most tender conscience, and lively, quick zeal and love of his God, and Christ, and that his flock which we call the Church: no way interessed, save to his own prejudice, and by his lay condition rendred incapable to reap any fruit of this Har­vest, hee here so earnestly strives to defend from spoile, nor like to eat a bit of that bread, he here so zealously de­fends in behalf of the true owners, (Memoria justi in bene­dictionibus;) yet it pleased God to stir up his heart, and he that touched the Prophet Esays lips,Es. 6. 7. with a coal from the Altar, no doubt touched his heart and quickned and direct­ed his minde to indite, and his pen to write and set down many profound and unanswerable arguments for truth against sacriledge, kept secret from those that stand always in the house of the Lord in the Courts of the house of our God, as the Psalmist speaks,Psal. 135. 2. the professed and dedicated servants and Votaries of the Temple; and because uninteressed to make him the fitter and more likely to be successful Champion of Justice, Truth, and true Religion, in their outward visible supports, then those whose known interesses would always have taken of and diminished from the worth or effect of their sufficient, or never so well-meant undertakings and perfor­mances. Which outward supports let them be stirred when they will, (men may dream and think they prophesie, but) an ordinary Humane eye can in reason probably fore-see no­thing but very soon & too sure the decay of Religion, the fall of the Church (as to outward frame, order, and support,) and Christian piety it self (I speak in humane consideration still) ready to fal [...]flat down to the ground, or degenerate into Natu­ral. God can sustain it miraculously, & feed his servants wait­ing on the Ministery thereof now, as he did his people in the Wilderness,1 Kings 17. 6. or the Prophet Elijah by a Raven, or yet more miraculously without any meat at all; or perhaps in as equal­ly strange and wonderful way, by the men of this world their voluntary Benevolence: But speak according to inferiour [Page 293] probabilities as things depend here on their causes, or in hu­mane expectation, which is to be our lower rule, and thus, He that considers the Course of this world, the fleight esti­mation that most have of the best things, the stony-hearted­nesse of men to part with what they Once Have, the necessi­ty of bread for man to live on, and the unlikeliness of enough to come in for this end any other way, Cannot but conclude (the rather, because some Preachers have been reported star­ved of late, One by very likely information I knew, confor­mable enough to the times, yea zealous for them,) that there is much cause to Fear, lest the Light fail with the Candlestick, the Ministery fall with the Means holding it up, the Gospel be a silent word when there is no voice of a Preacher, nor will be Preaching much longer then holdeth out this Maintenance. Those Labourers of the Lords Harvest fixed in their stations are not like to be preserved much longer in Being, Health, Order and Number, then this accustomed food is allowed them which they may Claim as their Own (not being behol­ding to Others, or Depending, which is always grievous to ingenuous natures,) But as they labour so be sure to live. Plenty and delicacy are not the things stood upon: Religion, though she know how to abound, as well as to want, and how to dispose of superfluity as well any other, yet she cares not or stands not much upon Wine and Cates; Let the Epicures and men of this world hunt after this draugh & sensual con­tentments whose empty and carnall souls know no other means of contentment or comfort,Phil. 3. 19. whose Belly is their God, and Glory their shame, minding the Earth, as the Apostle speaks, and whose care is onely to feed, grow fat, and lie down with the Swine, 'tis much to be doubted also to rise with him: But Being and Comfort are those Blessings which even the Children of God desire to be made partakers of in this world with submission to the will of their Heavenly Fa­ther, To have to live of their Own, and not be burdensome but rather helpful to others, their reasonable desire, And that they may finde the Scripture true,1 Cor. 9. 11. They that sow spiri­tuall, 'tis no great matter if they reap temporall; andGal. 6. 6. Let the Catechumene (He that is taught) commnnicate unto his [Page 294] Catechist, (or Teacher) (which how can it be done better then in the way of the Tenth of all?) [...], in all things necessary, or as 'tis usually rendred in all his Goods. This is that men In this world though not of this world, will always stand upon while they live here below in this scratching and scambling world for honest as well as necessary ends; O that mine eyes could spy a way, if that which Is, mens greedy par­cimony and stubborn persisting in Unjust as well as Covetous desires will have no denial but they will be left at liberty to pull away, How a constant supply should come in (while men have souls,) to support an Army of nearFor, near so many distinct Pa­rishes there are in England already, besides needfull Chappels, & seems much requisiteness of more by the over-grown bulk of Divers in Sun­dry laces since the last distribution. ten thousand able Commanders, who should praeside and govern (decent­ly, orderly, and as becometh the Ministers of Christ) over so many dispersed Congregations. The slender endowment of many Vicarages not hitherto at all increased, The wretched allowance of little more then some Shepheards wages usuall for Cure of souls, and by the bounty of the Parish seldome or very little augmented, The yet worse way in many other places, where was more liberty of raising a support by vo­luntary rate and less expectation according to Law or Obli­gation by it, Do give cause of even Trembling fear to think, when this liberty shall be inlarged to All, and men be bound to pay no more, then what they can be content to allow themselves to be forced to part with, Whether then there will be almost any discharge of Cure at all, or the weekly sa­crifice perhaps altogether cease, if the necessary supply of means for the outward bodily labour, should be suffered to come in in that Experienced scant way, which hath hitherto left the highest and best house in the Parish no better furnish­ed with a Levite to serve (or rather to starve souls) then were Jeroboams Priests heretofore,1 King. 13. 33. the lowest of the people? O Christian, if thou be, look upon the Impropriations (as sty­led) in generall, Behold there the Image of Pharaohs lean kine in the slender slack allowance usuall, a next to Beggarly Exhibition of what would little more then keep a single sim­ple man alive to Read, where Legall indowment had stated no more, A Faulkoners or some good Journey mans enter­tainment exceeding what was usually allowed by the Rectour [Page 295] who received all the Tenth from the people, And yet worse of my knowledge where the free-will-offering of the people of a Parish hath not for all the Kings Reign, nor doth yet raise above half a good Shepheards wages, about sixescore shillings yearly for the Shepheard of souls; And then, if thou have any Bowels of compassion over souls, keep them from earning if thou Canst, If thou have pity or love to Reli­gion or Christian Men, think hereof and judge accordingly. Experience, the Mistress of Fools may at some times perhaps teach wise men more wisdom; Let it at least furnish us with Caution, by what has been to make some estimate what is like to be, What may, or will, or perhaps Must; and to be wary, look back, and Compare where no stated set allowance has been by Dues to be sued for, and then judge. I do not speak absolutely: I am no Prophet or the son of a Prophet, Our foresight of things in their causes is always here but dim and as of Probabilities; The suffering every man to walk in the ways of his own heart, in this matter, and to follow the light of his own eyes, May tend I confess to not the worst prejudice, or by altering but to snuffe the light that it may burn clearer and to more content of those shall both main­tain and use it; yet no man hath cause to be offended with my jealousie in the things of my God, tenderest care and fear of the worst about his Honour, or that in zeal to the worship of his Name I poure out my soul in devout supplica­tion, God grant it tend not to put the Light clean out! Hea­vens vouchsafe this great favour to Earth that Covetousness triumph not over Religion, and Having away what is thus Coveted, lead to and end in worse then Popish even Heathenish darkness! For this I know, Heathendome (as the word was when it went off,) was here before Tythes were paid, Never effectually expelled but by them (outwardly, the Grace of God concurring:) The fence and Bulwark they have been that have kept out both it and other Errours God knows how many; If the fence be removed, whether the Beasts of the Common will not break in? if the bank be cut, whether na­turally there be not like to be a return of former inundations [Page 296] ridven and kept out thereby? is left to reasonable judgement; we can but guess, God onely knows. This by the way: to return.

Our next impartial Councel we crave leave to take Ma­ster Selden, who seems to offer himself in his printed Decla­rations: Learned Councel indeed, and being Lay, and so altogether uninteressed for benifit ever will be presumed to speak with the more indifferency: and, when truth and the state of things permits, he comes up and fully home, as can be desired. He fluctuates indeed in time as long as any, but settles with the more judgement at last, and aske that choo­seth and sifteth his Corn hath lightly better bread then he that takes what comes in his way, or out of the full heap: So hee that first examines, and then judges. Crave leave then to ask his opinion, Are Tythes justly civilly due? Hee hath already declared himself in publick in the hearing of all the world. Take but the sixth part of what he has laid down in his History, and it may be abundantly enough. Or but Secure the Jurisdiction, and That, as has been of­ten said, is sufficient, the rest will follow of it self, for which Cast an eye back to what was said before. Will Possession do, or so much time as may create Praescripti­on? for this also he hath said, and there hath been given from him enough, which may not here procure trouble by tedious repetition. Remember what he said was Clear Law, and since Edw. 1. time a Parochial Right Universal. It is not more certain that he wrote, then that in way to his design of, An History of What Had been, he lets fall enough for Now due and the Right that is: which bottome the result of his painfull disquisitions often settles upon. These two are the chief, and their testimony gi­ven in upon record, more then publick which goes forth to All, and being in Books deserves that of the Psalm, Their sound is gone out into all Lands, and their words unto the ends of the world: Perhaps may bee read and acknowledged in the Indies. Now after these it may be superfluous to adde the other that offer themselves, and [Page 297] in no less publick way still, the Press, that usually speaks with a thousand voices at once, and is heard, to any di­stance, the Eccho may remaine to all generations; As, W. C. in his Tything Table, printed in the Queenes time, and re-printed often since, 'tis in the hands of all men, and rivels out the generall Subject into many par­ticulars: Doctour Sir Tho. Ridley, In his view of the Law, par. 3. who hath laboured not unprofitably in the same argument: Master Hughes of Grays Inne, His Book is called, The Parsons Law: and Judge Dodderidge (or Bracton the second, for so I would compare and parallel their profound soliditie) in his, Compleat Parson: More there are others, scarce any One man knows how many, and they all contribute their u­nited and uninteressed vote and sentence hereto, proving sometimes, but mostly supposing a Right, which is more, though the two former I chiefly rely upon. Ask the next man met, and if he know any thing, I know he must know this, and will I believe give it in Co-attesta­tion with All, Nor can hee approve himselfe an English man that hath brow, (for brains he hath little or none, knowledge either of Discourse or Experience,) that can upon deliberation deny it.

CHAP. XXXIV.

IT remaineth next, Whether any thing hath been Done accordingly? Men have thus interpreted Laws; but their Sayings how many, or confident, or grave soever, though bearded with authority, alter not the Nature of Things, The exhibition whereof in Deed and View is that Reall proof men most look upon in the World and more, beyond the strongest Opinion or best inter­pretation; and What has been then seen the effect or Work of these Word and Book-suppositions? I answer; as much as well can be supposed or imagined; with assurance enough too, even to the disposition and transposition of the tenth part of the wealth and Revenue of the land. For among All sorts of persons that had any thing, in All places, There is never a Parish in the Land, or Person of Cense and Possession, but the experience hereof has been given yearly in His estate, and submission to that power, that from one man to another created Right, according to received and obeyed Law: It was but Ask and Have, Seek and obtain, expect the season when the Course of Nature brought forth things in kinde, and take the tenth as it arose; None did mutire contra or resist or but obey. The Issue (as before intimated) was but Commonly either the Bounds, or Certainty of the Parish; If these two were well proved (whereof onely could be doubt) the rest came in of it self, and the force of these grounds of Law as before, so interpreted as now, carryed the Tenth fleece, the Tenth Lamb, the Tenth Lock, Heap, or Sheaf, &c. all upon a Supposition All was right, and this as often as the things grew Due and demanded. Nor needed the Plaintiffe (that his quality, though he might goe under another name) to cast out for any Law, a Combination of Which, and the whole of a sort, united and deeply founded [Page 299] was always in his behalfNow touch­ing the dischar­ging of tythes themselves, & the pleading them at the Common-law, It is to be ob­served, that they are things of Common right, and doe of Right belong unto the Church. And therfore though it be true, that before the Councell of Laterane, there were no pari­shes nor parish­priests that could claim them, but a Man might give them to What spiritual person be would, yet since parishes were erected, they are due to the Parson (except in certain spe­ciall regular Cases) or V [...] ­car of the pa­rish: and there­fore when you have a prohibi­tion for dis­cuarge, (of the validity whereof, and when to take place, he is there speaking) You must consider it is a plea in bar against Com­mon Right to a demand of Tythes which is a Common Right, though they be in severall Courts, as by a Release either in Deed or Law. Hobarts Reports in Slades Case, pag. 296. supposed: This was put into his Libell, tam de Jure communi & Ecclesiastico, quàm de anti­qua, laudabili, legitimé (que) praescripta consuet udine, jus perci­piendi, recipiendi, & habendi omnes & singulas decimas tam majores, quàm minores mixtas & minutas infra Parochiam de N. provenientes, crescentes, renovantes, & contingentes, ad Rectorem Rectoriae de N. spectat & pertinet, &c. and this a set way as in the secular form of pleading upon Briefs, which were always the same, like the laws of the Medes and Per­sians, without alteration; Nor may we well suppose any errour to have crept in, or been admitted or retained Here, in that plea, which was a ventilation or exact discussion of the tenth part of the profits of the Kingdom. There is much both law and Constancy in those set forms, 'tis very hard to suggest or foist in any errour to those known inviolable pieces; toStat. of West. 2. c. 1, 4, 35, & 41, 13. Edw. 1. Stat. of Merchants, c. 1. Stat. of Quo warranto, 30. Edw. 1 raise or alter a Writ, requires and has had the legisla­tive power of the Kingdom: Of the like certainty, use, evidence and inviolable firm constancy and immutability was (no doubt) the way of transacting things here: If we light upon truth anywhere, we may hope for it in those lines which have been so often handled and reviewed, and which have themselves handled and disposed of so much of every mans estate, as in the whole amounts to that part which is the tenth of every thing. Some of many would have found the fault, if there had been any, nor could the iniquity have re­mained unespyed, in that most men had their eye upon, and suffered by whereas none did Here, Therefore it is very likely to have been good and Right which All as Such have looked upon, and None been able to espy therein Errour or falsity.

Thus to the Cause have we subjoyned the Effect: To the Law before, interpreted now, the use and fruit in disposition of mens estates, Their wealth that dearly beloved of their souls with much patience being suffered to be transposed and change masters by its power, And sentences were to this pur­pose as usuall as tryals. According whereto followed no [Page 300] doubt execution; who knows any thing knows this by daily everywhere experience, and as before we might not suppose forms of practised law erroneous and deceitfull, So here, that they should, being such, have found so ready and universall obedience, or that a wrongfull sentence should have intruded to take place, especially sith to generall prejudice; Draining mens purses of much of every thing, and they (the whole world) so fast asleep, that no suspicion was stirred up of the legerdemain; Nor so much as any outcry heard of so spreading and universall wrongfull incroach­ment. Surely no: There was no such thing; but a Just sentence upon due proceeding: Both cause and effect, Rule and Order, Law and execution were according to Right: and as in any other the Kings Courts, these tem­poral-spiritual things were orderly and legally disposed of and setled Here, by that law, which ordereth, disposeth, setleth, and even Giveth all things.

Upon all which would follow also one thing more, That if all these things be Thus, Not Colours but of substanceand reality, If such law have so passed and ought to be obeyed, and has, And to part with be now by vertue thereof Not to Give but Pay, Debitum Justitiae, and of Right Ought (to the service of God) not Debitum Charitatis, a bequest of love and good Will: Hereby is way made, not onely of bringing home these Dues safe and sure to their Right owners the Just Claimers; but also of bringing home further all those forceable exhortations to the payment of them in Gospel-dayes▪ to Gods service, even under those Strong reasons which were heretofore used by the Prophets and wise good men under the Temple & Law; And with us may be said, Give and Pay these due Deben­turs to the Christian service as wel and upon the same grounds as they here­tofore used, & by which they were then urged to be paid. For they required them but as Due, Due to God, (sc. for his service) Due by their Law, Sacred in their Polity, and which Immediately came from God: Now although we do not so plead them as strictly (here) due by any divine Law among us given on the Mount, or written with the finger of Gods hand, yet they are by that Law: and Sacred too, and apportioning them to God, that is his service too, which, as before giving them, is ratified and confirmed (as all Just powers and Laws are) by him that dwelleth on the Mount, who approves and sets to his seal to be Just and Good, whatsoever Orders, Ordinances, Laws or de­vices his people (as so many additionary, explicatory, or By-laws for the good, peace and order of the place where they live, not crossing the Common) shall make for establishing and perpetuating his honour by means of their own created Justice, and so a kinde of Divine, and certain, [Page 301] though Mediate and consequentiall way of confirmation they have from the powers above still; At least ground enough to say in the sense of heretofore,Ecclus. 35. 10. Give the Lord his Due with a good eye, and Consecrate thy tythes with gladness; Give (yea Pay) unto the most High according as he hath inriched thee, and as thou hast gotten give with a good eye; that Law which is in a sense his Sacred law hath commanded it: For, Levit. 27. 30. All the tythe of the Land, of the seed of the land, or the fruit of the tree is the LORDS (Now) Holy to the LORD: And, concerning the tythe of the Heard or of the flock, what­soever passeth under the Rod, it is now holy to the Lord like­wise: ThereforeDeut. 14, 22. thou shalt truly tythe all the increase of thy seed, that the field bringeth forth year by year, and Mal. 3. 8. Bring All into the storehouse, and try whether the Win­dows of heaven shall not be opened for recompence. My Tythe into my Storehouse: forNum. 18. 20. Behold they are given, (If not I have given, I have ratified their gifts who have given them) to the Levites of the New-Testament, for the services they serve in this tabernacle of the Christian Congregation. Moses said, Exod. 22. Decimas & primitias non tardabis offerre Do­mino, as in the Old Latin: And King Alfred says, Thine Tything-scot, &c. give thou to God, in his translation and imposition of that law upon us, (which our just government, and by consequent Our God approveth:) K. Ethelbert said, K. Offa said, K. Ethelwlph, K. Edmund, K. Edward said so (both the elder and younger on this and that side the Nor­man turn) beside other, and it hath been digested, received, approved obeyed & practised by in ourLeges Sacra­tissimae, quae con­stringunt homj­num vitas, intel­ligi ab omnibus debent. Cod. de leg. l. 9. Sacred Common-law, if I may so speak, that they Must and ought: And so We as They require Them, in the words of Scripture, the same words as They, and to the same generall end, upon the same ground of a kinde of English Sacred-Law. Pardon that Epithete, and admit a Justification: As such I look upon and May call all those which being Civill and Common as Sancti­ons even with us have a touch as it were and Derivation from God, and so All Sanctity or Sacredness cannot simply be ab­stracted from them. As the Wise, and in his memory so much reverenced Chancellor Fortescue averred and justified [Page 302] to our young Edw. 4. King Henry the sixth his Son in his ba­nishment, making every Lawyer a kinde of Priest, and so far forth officiating in his Cure, as he duely and reverendly gives forth the things of this Sacred Justice and Law. It has place where he is counselling him not to regard Military exer­cises alone, but to inrich his minde with noblest indowments of knowledg and piety, setting for his pattern, The Prince of Israel, who wasDeut. 17. 18. 19. councelled to keep always a copy of the Holy law by him, and to read therein all the dayes of his life, that he might learn to fear JEHOVAH his God, &c. Yea,Haec ut audi­vit Princeps, cre­cto in senem vultu, sic locutus est. Scio, Can­cellarie, quòd liber Deuter. quem tu commomoras, sacrae scriptura vc­lumen est; liges quoque & cere­moniae in eo con­soriptae etiam sacrae sunt, a do­mino edita & per Moysen promul­gata: [...]uare eas legere sancta con­templationts dula cedo est. Sed lex ad cujus scientiam me invitas, huma­na est, ab homini­bus edita, & tractans terrena: quo, licet Moyses ad Douter. lecturam Reges Israel astrinxerit, eum per hoc reges alios, ad consimiliter faciendum in suis legibus, con [...]itasse, omnem off [...]git rationem, eum utriusque lectura non sit eadem causa. At Cancellarius, Scio, &c. Scire igitur te volo, quòd non solùm Deuter. leges, sed & omnes leges humanae facrae sunt, quo lex sub his verbis definitur: Lex est sanctio sancta, jubons honesta, & prohibens contraria: Sanctum enim esse oportet, quod esse sanctum definitum est. Ius etiam describi perhibetur, quòd illud est ars boni & aequi, cu­jus merito quis nos Sacerdotes appellat. Sacerdos enim quasi Sacra dans. vel Sacra docens, per etymologiam dicitur, quia ut dicunt Iura, leges sacrae sunt, quo eas ministrantes & docentes, Sacerdotes appellantur. A Deo etiam sunt omnes leges editae, quae ab homine promulgantur; Nam, cum dicat Apostolus, quod omnis potestas à Domino Deo est, leges ab homine conditae, qui ad hoc à domino recipit potestatem, etam à Deo constituuntur, dicente authore causarum (Aristotele) Quicquid facit causa secunda, facit & causa prima, altiori & nobiliori modo. Quare Iosaphat, &c. Ex quibus erudiris, quòd leges, licet humanas, addiscere, est addiscere leges Sacras & editiones Dei, quo eorum studium non vacat à dulcedine consolationis Sanctae. Fortesc. de legibus Angl. cap. 2, & 3. answereth the Prince, This wel concerned Him, for those Laws had to him another tincture of Divine authority which to us is wiped of, having none of that high qualification. No, not so neither (replyed he) as to sanctity we are not without All law unabrogated: for all humane laws are to those, whose they are, Sacred from the definition. For what is a law it self, but Sanctio Sancta jubens honesta, prohibens contraria: (whichVid. Gloss. lex est. ad Iust. 1. de Iur. nat. & gent sect. 4. & Gloss. non faciendorum. ad ff. de segibus Senatusque. lib. 1. he might borrow from the Civilian) A sacred Quomodo leges sanctae, vid. ff. de rerum divis. & qualitat, l. 9. sect. 3. sanction, bidding what Good is, forbidding the Contrary? and that must needs have sanctity in its nature, into whose definition it is wrought and embroydered: And therefore the Art of administring those laws makes us Priests: for what is a Priest but he that ministers in Sacred matters, teaching holy things? We doe so, we give out sacred Justice, There­fore [Page 303] we are Priests. And all Laws are from [...]. ff. de leg. Senatus (que) L. 2. God, though published by Man: For whereas Rom. 13. 1. the Apostle saith, All Power is from God; The Powers that are, are ordeined by Him, Law made by such derived Authority, derives farther, and impresses the stamp of Authority from the first Cause through All, for as much as, Whatsoever is the Cause of a Cause, is also a Cause of the thing Caused. Whence2 Chron. 19. 6. God is with you in judgement. So Exod. 18. 19. Do thus and God will be with thee. Josa­phat to his Judges, Ye do Gods work, Ye judge not for Man, but for the Lord. So that Every Law is then Holy, Every Statesman may look upon himself as a kinde of Priest, every Magistrate a [...]. Rom. 13. 4 Dei enim mini­ster est. And, Ministri Dei sunt. ver 6. kinde of Minister of Holy things, (Their Stu­dy gives them such, though their Trade may be unrighteous­ness) and no word can better fit a dying Patriot then these of Eleazar, 2 Mac. 6. [...], to be ready to die for the sacred and venerable Laws of his Country.

Thus then All Laws are Sacred, as derived from God, and backed with his authority, though made by man, and so Ours, and so that which is of this fort in particular: which occasions fit and full application of those Texts of Scripture in the just import of the words and their full vigour of sense to have Tythes brought in, as thus Scripture now requires (these Acts of State and Right supposed, which also are) and they sin against that Sacred Law, yea a double sacred Law, Mans and Gods, (in Mans or above Mans, having Mans under it,) who do not Pay. Some question hath been hitherto of the Albeit we be be now free from the Law of Mo­ses, and conse­quently not therby bound to the pay­ment of Tythes; yet because Nature hath taught Men to Honour God with their substance, and Scripture hath los [...] us an Example of that Particular proportion, which for Moral Considerations hath been thought fittest by him whose wisedom could best judge; Futhermore, seeing that the Church of Christ hath long sithence entred into Obligation; It seemeth in these days a Question al­together vain and superfluous, whether Tythes be a matter of Divine Right, Because, howsoever at the first it might have been thought doubtfull, our Case is clearly the same now with theirs, unto whom St. Peter sometims spake, While it was whole, it was whole Thine, When our Tythes might have probably seemed our Own, we had Colour of liberty to use them as we saw good; but having made them His whose they Are, let us be warned by other ment example what it is [...], to wash or clip that Coin hath on it the mark of God. Hookers. Eccles. Polit l. 5. Sect. 79. p. 429. Jus divinum, whether now Any such be of force to bring in this Revenue of the Temple among us? and there be that affirm as well as that deny, as they finde light or dark­ness in the Letter of the Scripture (which, immediately, they rely on) in their apprehensions: But this strife may now be [Page 304] well stinted, unless for double strength among us, for as much as in a certain clear, but mediate and consequent way (the Act of Man having given, and the Authority of God above confirming what is done below) that divine print reaches through no doubt in the way hath been shewed, and cannot but stamp some­what of heavenly and the Supreme Power upon the Acts that have passed of Men, and so for the Commandments sake, yea for that is by derivation, approbation and undoubted con­firmation the Divine Commandments sake, they are now Due and must not but be paid, as in Israel. Rebus sic stantibus, or as things have passed and now are and remain, they are (I say) unquestionably Thus due by Divine Right. For the Ma­gistrate is Gods If an [...] one shall prove trouble­some and stir Tu­mults, Confestim opera ac dili­gentia famuli Dei (meipsnm dico) poenas suae inscitiae dabit: says Coustantine the Emperour. Theodor. Hist. Eccles. l. 1. c. 20. Minister, Every just Law His Ordinance, Vox Legis, Vox Dei, and every syllable and sound thereof quickned with an additional spirit of divine infusion, (accord­ing to our Scriptures, and as we have from Rom. 13. 1 Pet. 2. and other places.) And sith then here the Magistrate and the Law have proclaimed for them, whither they be due as in Mo­ses to Israel, by the Text of Leviticus, or by vertue of any Gospel, or the Epistle to the Hebrews, seems not so much ma­terial, at least not necessarily considerable, for as much as though this were considerable at first, yet now they are Here fast enough by what the Magistrate has done for them by his Vicarious power and substitute authority. The Powers that are are still ordeined of God, as was also said before; He sticks not to set to his Seal to what has been orderly past in lower Courts, approving and commanding what they prudently and justly do, and it ought not, for Gos sake, but be obeyed: so that whether the general take hold or no, or universal, that Where ever the Gospel is preached this shall be part of its obedience, and the Labourer is worthy of this hire, by divine Right; We have here a sure word of Righteousness, enough whereunto we may do well to take heed, as unto a light shi­ning in a dark place, and if Not the General Divine Law, De­cima ut Dives fias, or, Non tardabis offerre Deo Decimas, yet the other General is topical, and directly binding in our Me­ridian and Clime, sc. that we must Do justice, That we must Rom. 1. 3. Render to every one his Due for the Lords sake: [Page 305] Phil. 4. 8. Whatsoever is just as well as whatsoever is Pure, Matth. 22, 21. To Caesar the things that are His, and to God the things that are Gods: And Thus The Law of God, (This Law) is thus brought about as quickning and so confirming Mans, and the duty hereby to Us moral, even to every English Christian, because This is sure such and most undoubtedly,Deut. 16. 20. That which is just and right, That O Christian shalt Thou do. So the thing be brought about, no great matter which way; As if the Arrow hit the Mark little inquiry how it came thither; Now Divine Authority backing (of which there is enough,) and second­ing humane Ordinances, The rest is easie, and unless for dou­ble strength (as said) we have not so much need to inquire for a Divine Letter, because we arrive at the same point safe and sure in the other way of Humane: for if Man have settled, and God commanded to be paid, He have given, and the Ma­gistrate, who is Gods Vicar, allow and injoyn payment; Now even for Conscience sake that may not be omitted, And whether the Scripture or Nature say any thing in the Case particularly home, They say enough in establishing humane Ordinances, (which will bring God along with them,) and Man for God must not but pay what Man has settled for Gods Commandment sake. So in this (new) way here is Jus Di­vinum, or Divine Right stil Mediate and Consequential, but sure and certain, which perhaps may not be in Virginia or New-England, where the Gospel may be yet in full vigour, or in Madagascar, or Japan, if the same holy Rule should there finde obedience; The Climate alters, and some particular things done Here, which (I think,) There have not, and thence indeed This difference and Our preferment: And sup­pose they, (that is either those remote strangers, or our Bre­thren at home that Rely on Divine Right in scriptis or the ve­ry Letter of the Law,) should lose all with that Letter of Scripture, and their proofs falling short from Text or Reason, they therewith fall short of all proof, yet in this Our way we keep enough in derivation of Consequence, and by Pre­advantage of a Civil Title granted and settled, we gain also another of another sort, Divine but Mediate, accumulate and lasting, even when the immediate and literal is (in reality or supposition) taken away

[Page 306] In short, we need not doubt of a Divine Right, Here, with Ʋs, while there is a humane Ordinance prevailing, and a Di­vine inspired 1 Pet. 2. 13. Apostle speaking from God, we must Obey every Ordinance of Man for the Lords sake: The first of which has had attempt of plentifull proof, submitted to judgement, and of the last no Christian admitteth doubt. Yet speak I not any of this last to evacuate or infirm that or their opinion who go another way to stablish the opinion of Divine Right by their fair and solid Arguments from the Text, as if I would withdraw mens mindes from the love and estimation of their Gold, pretending here is Silver, and then if this fail after a while they are wiped of both, and have to trust to Neither: No, these are severall, and this Another, but not a contrary or cross Way pointed to, they do not justle but are very well and fairly consistent and composeable one with the other, and this prop of Wood may help, if that pillar of Brass fail (or be misplaced,) This string may hold, if that chance to break, or perverse men will not be held by it; And in this addi­tional or supplemental way it may be acceptable also to those who are more strict for the divine Right immediate, which, be it what it will I keep promise of within the Circle of mine own Sphere, Be that, or be it not, This I believe is, and this advan­tage enough hereby if we have it. To conclude, let the things be considered as before alleadged from the parts of the Law dispersed, Councel interpreting, and (which is most material to Exposition,) the practise and Seen Force of the Law there­by, and we cannot from them I think, but conclude, 1. A cer­tainty of Civil Right, and by that bottom of rooted Law, that gives all things. 2. A probability of Divine Right, mediate and consequential. At least the first, and with much assurance, Id quod erat demonstrandum.

CHAP. XXXIII.

IT remains for inference and application to the just conscience, that every sober and well-meaning Honest man quietly and orderly compose himself then to his duty in obedience, and if this burden be duly and fitly laid on, & on Him, to take it up and go away with it as contented, not wrangling or quarrelling to his due shame & abominable sin, as well as ma­nifest injustice & dangerously seditious disturbance, But be sa­tified with his own, & give out to others with willingness what is theirs, He acknowledges and must acknowledge, and not His. My Lot may be of the Receiving part; If it be, I may justly ex­pect mine own, & require it, & demand it, and unless my Chri­stian perswasion be against going to Law for any thing (which has colour from 1 Cor. 6. 1, 6, 7.) if it be denied, as for any other Right, sue for it. Or if my lot be on the paying part here I have both leave and duty, not toDo all things without murmu­rings and dispu­tings, that ye may be blameless and harmless, the Sons of God, without rebuke in the midst of a crooked and perverse generati­on, among whom ye shine as Lights in the world, hold­ing forth (thus) the word of life, that I may have comfort of you in the day of Christ, that I have not run in vain, nor laboured in vain, Phil. 2. 14, 15, 16. See also 1 Cor 10. 10 and Iude ver. 16. Sure this is a Gospel sin. murmure or com­plain, shift or evade, but meekly, gently, and Christianlike do what belongs to me, reckoning my self no Honest man, unless I have thus much Honesty to be Content to give every man his Due, yea not as the Ox or the Slave, meerly for fear of the whip, but from forwardness and readiness, quickned by the inspiration of my Religion, whatsoever I do (as unto the Lord or unto Men) doing it Heartily and willingly, as knowing I am bound to keep my rank (Rom. 13. 1, 5. [...]) not onely for wrath but for Conscience sake. For2 Cor. 6. 7. God loveth a chear­full Giver, and a chearfull Doer, and it is the great com­mendation of Christian Religion that it makes or leaves none slow or indifferent in any good Duty, but adds wings to the [Page 308] weary or heavy doubting soul, more readily, effectually, and chearfully to do every thing ought to be done for the Lords sake? 'Tis said there are some whose Consciences will not give them leave to issue forth these Dues, according to le­gal Obligation and and all just expectation, even as just as any is in the world; But I ask almost in the same words, whe­ther their Consciences will give them leave to pay their Dues? A Just Assesment? Stated Rights? A Quit Rent, a Fine, a Releif, or any Just Imposition? Set aside Leviticus, Malachi, the Epistle to the Hebrews, yea the whole Bible: This Rent-charge as it were, is so due by Civil Justice; will they now be Honest Men? If they answer but Roundly and home to this, I have as much as I desire. Will their Consci­ences give them leave to pay their Debts? what is doomed such? If this be not a Debt to the due Receiver, a yearly profit issuing out of their Lands to anothers use by Law, Nothing is due here in England, and for this is the strength of the whole Treatise going before. Thou sayest, I cannot prove Tythes due by the Law of God; I went not about it, but if I can by the Law of Man, this is enough for thee: thou repliest, Levi­ticus is abrogated, the Hebrews dark, Abrahams and Jacobs but examples; But wilt thou pay a Custome, or Toll, or Tri­bute, or legal Taxation? Is a Rent-charge due, or Relief, or Quit-Rent? By what Obligation soever thou shalt confess There, by the same and of equal strength I will make good my Plea here; Where art thou now? Wilt thou pay both or none? What but English Sacred Law gives the one? and the same gives the other: Pay or deny, both or neither, the equity is of equal measure, strength, and evidence for both together: O Chri­stian, let not the World deceive thee: Let not the God of this World blinde thine eys: If thy Covetousness hinder not, thy Conscience may well serve thee to pay thy Dues, yea, would Constrain thee, that is more then Permit, for true Re­ligion does more then Give leave, Command, and Injoyn men to be Just and Righteous.

Nor let any one say, These are Trifles, far below the height of Heaven: May not a man keep a good Christians Conscience to God without troubling himself with these Levitical Cere­monies? [Page 309] Hearken man, This is a part of our Moral Righte­ousness, as things are Now with Us a part of Necessary Justice; A man can be with Us No more Unrighteous or Un­honest then he can here make light of this part of his legal Duty. Nor let him say, I have given my name to Heaven, I have weightier things in consideration, Must I interrupt or pull down my higher thoughts from devotion faith and Spiritu­als to these, which when a Pharisee boasted exact obedience of, he remained but a Pharisee? O Good Man value things as they are; Thou wilt not neglect Earth I hope in order to Heaven, or suffer thy Religion to leave thee Not Honest or Unjust; Must thou not deal Truly in these lower things be­fore thou art fit to be trusted in higher? Or is Moral Justice an Heathen vertue, meer stranger to the power of Godliness, and Not regarded at all by the God of the Christians? Does not thine own Saviour say, (Believe not me, but believe Him, and believe me but as I do with fidelity and trust dispense the the Truths of, for, and from Him,) thatLuc. 16. 10, 11. He that is faith­full in the least is faithfull also in much; He that is unjust in the least is unjust also in much; If therefore ye have not been faithfull in the Ʋnrighteous Mammon, who will com­mit to your Trust the True Riches? Nor let any further ex­cuse with the pretence of the Nature of Things, He hath weaned himself from these lower to better: Faith, hope, praise and prayer, &c. do so take him up that meaner things have less regard justly, He is for the Heighth of Holiness. And I will believe him as soon, as that, He hath climbed the Pina­cles of Solomons Temple, who is scarce got up the steps of Solomons Porch, That he that is Unjust can be Holy, or that Good man fitted to be a Citizen of the new Jerusalem, a Free-man of the Kingdom of Heaven, Who wants necessary qualifications to live in an honest, well-governed Common­wealth on Earth. Shall Heaven be furnished out with Disho­nest men? or the legal Members of that Citie be Defrauders and Deceivers? Does not the1 Cor. 6 9. Apostle say, (What can be plainer? Be not deceived, (Some are apt to think so,) That the Ʋnjust, Idolaters, thievesor covetous shal ever Inherit the Kingdom of God. And such were some of you, But ye are now washed, [Page 310] (or else had no hopes there) but ye are cleansed, but ye are purified, Apoc. 22. 15. but ye are justified. Without are Dogs and evil Do­ers. Thou art apt to condemn a Thief or a Robber, the cry of the whole Countrey is against Him, What! He that grows Rich by spoil, takes another Mans Goods! I confess, his crime is something more, but that a part, and his whole sin, and wilt thou take the cross to that of the Apostle,Rom. 14. 22. Blessed is He that condemneth not himself in the thing that he alloweth; Chap. 2. 3. Thou that Judgest another, Iohn 16 9. Doest Thou the same thing? We are bid to make us friends with the Mammon of Ʋnrighteousness that when need is, we may finde Everlasting succour: Sure this by Just dealing at least, I believe more by unjust or un­necessary Giving. Is not Unrighteousness sin among Chri­stians? or True dealing, to Give every One his own, onely a superfluous part of Goodness? Welfare then Achab and Judas. 2 Sam. 12. 4, 5. That Oppressour had too severe a censure in Nathans Parable for taking away the poor mans Lamb, Luk. 23. 42. and the Thief upon the Cross committed a work of supererogation in re­penting his theft in the way to his Paradise.Phil. 2. 18, 19. Saint Paul nee­ded not have cared for Onesimus debt, nor the sons of Jacob excuse the stealing of theGen. 42. 35. Plate, (if it had been so:)Luk 19. 8. Zacheus stood forth, and out of superstitious piety Gave to the poor, and if I have wronged any, I restore him four-fold. Ono. These vile things of the Earth have Heaven at one end, We may make us bags that waxe not old, Chap. 12. 33. or lay up treasure in Hel with them as we use or abuse them;Mat. 25. 35. &c. Christ will pronounce sentence upon Those Dispensations at the last day, and if we shall be punished for not being mercifull, what farther if we be unjust and injurious! Is the Word our Rule! Brother Chri­stian, Believest thou the Scriptures? Act. 26. 27. If thou do, stand fast to thy ground,2 Tim. 1. 13. Hold fast the form of sound words as they were delivered and thou didst receive them, Make good thy faith also in thy works seen before men, & let thy life be a justificati­on of thy belief, a counterpart or exemplification of Thy book of Religion. Be assured of this, there is not held forth any where in the world a better picture of An honest Just man then in those sacred leaves is described and painted out to the life, Which every believer is bound to be by his Religion; [Page 311] Obedience or Exhibition of himself Such must render him (the Childe of God) such a Just Dealer therewith, And thy ne­cessary conformity to that Law shall make thee A Pattern to all the world for Heathen Honesty. This is a part of that [...] or Transformation in difference from that Con­formity to the unjustsinful world before, Rom. 12. 2. Dress thy self by this glass, and thou wilt not count thy self ready without this habit, Adorn thy self by these directions, and thou must put on this Moral qualification, ('Tis a part of the putting on the Lord Jesus Christ, Rom. 13. ult.) nay, shine bright in it,1 Cor. 15. 58. abounding in this work of the Lord, or thou art no warrantable Christian.

Shall this be now disputed or doubted? Shall I stain the reputation of Christian Doctrine by this that it has not as clear as day, that every Proselyte thereof must give every man his due? or, it may leave me as wilde and conscience less as a Thieving Tartar or wilde Arabian that takes what he can get, and parts not with what he can keep? I may not sit down with, Being just onely, for the power of my faith brings a­bout and should bring in all parts of Civil Justice by a Stron­ger Spring then is to be found again in the world, I must doe Right for Conscience sake, I must do No Wrong for fear of Heaven seeing me,Gen. 39. 9. (how should I do this Evil, and sin against God? as Joseph;) I must not take or withhold, or retain, or not give out what belongs to another sub poeua [...]ignis ge­hennae under the most intolerable penalty of assured and believed Hel fire, Come home yet more near, we pretend to our age of Light: Have we heard so many Sermons, waited up­on God so long in his Ordinances, Sanctified every returne of his holy Sabbath, Wrestled with him as Jacob in daily long Prayers, set aside so many whole speciall days for Fast­ing and Humiliation to seek the Lord while he may be found, and call upon him while he is not utterly gone to the Indi­ans, Tartars, or other Nations, that yet know not God, and shall we arrive at the last with all this pains at this point of persection, that we are now come to doubt whether wee may do right or wrong!Prov. 23. 10. And Therewith c [...]mpare what before, pa. 37. & pa. 244. whether we may equall the injustice of Entring the field of the fatherless, whose revenger is [Page 312] Mighty! whether we may not invade, covet, take, hold, or withhold, what has been shewed to belong in Right to another! If it Do, we will yet have it, and hold it, and not part with it, though (if we believe our Bible,) we know we shall be burned in the soul for it, with a coal of Ignis fortis, or rather of Ignis inextinguibilis, that fire of Hell will never be quenched! Do we continue to boast of light from Heaven, the Sun shining clear in the Firmament by the allowed use of Scripture, and the bright beams thereof dis­persing and darting their full power daily from the Pulpit such a long day as has outlasted the years of many generati­ons, with so many repeated impressions and dispersions of Numberless Numbers of English Bibles, that it hath been an amazement to some that live neare the well-head whence those waters of the Sanctuary flow, and others conjecture the Enemy buyes them up to burn them in private, sith in publick and for Heretical yet he cannot, And shall the Eng­lish fruit of all this promising seed time be, our doubts come out seriously in any of the scandalous ways before, or our carnall hearts have admitted no operation to obedience in such clear and undoubted evident matters, But alass, some part of our Neighbours Due inclosure we would take in and hedge to our own, though we make bold with the hedge of Gods Law for it, His corruptible wealth we cover, His sil­ver or gold we take or withhold, (or what has equall right) His Mammon of unrighteousness, as we account, we tan­tùm non sacrilegiously seize upon for our selves, and to pre­vent his idolatry, we put it into a private place, as it were, that we Our selves may worship it! We love it, we desire it, we keep it, we cherish it, we will not part with it, though God himself become intercessor for Justice, and stand as it were at the Magistrates elbow, backing his command with a higher ac­cessory Authority, Nec vox hominem sonat, there is some­what more then meerly humane in that loud and publicke voice of The allowed Law, at least Aliquid Divini, which God uses to impart to that substitution of himself and Vica­rious power,Rom. 13. 2, which whose resisteth, resisteth the Ordinance of God, and they that do so resist, must look to receive to them­selves [Page 313] damnation. What shall we say to this, if the enemy should lay this to our Charge? (as be we sure God will be our enemy, and put it home severely unless we repent and amend.) Is this a part of our Gospel-righteousness! a fruit of our holy Religion! that will consist with our Justificati­on by Faith, and shall we furnish him with arguments or sophismes enough against that opinion or the consequents thereof by Such a Life!Iohn 12 35. While we have the Light, doe we thus walk in the Light? Mat 7 16. giving him occasion to say, These are the works we see they do, (By their fruits shall ye know them,) We know it of them, for we see it: This is the Har­vest has been long a growing, and the fruit they reap among themselves of their many years use in freedome of their Eng­lish Bible. Now the Lord rebuke thee Satan, that thus sit­test between the lips of seduced benighted men, to blaspheme the ways of the living God, or the courses or things they do not or will not understand, not distinguishing between Hea­vens blessing and Mans abuse, the fruit of Gods Ordi­nance and Mans Corruption; and the same God give his ser­vants grace to carry themselves so inoffensively in word and deed, that no merit of their misdemeanour may hereafter give occasion of such reproach, but behaving themselves in all things as the servants of God, 1 Pet. 3 16. and having a good conscience, whereas men speak evill of them, as of evill doers, They may be ashamed that falsly accuse their good conversation in Christ; Chap. 2. 12. having also honest conversation among the Nations of the world, that they may by good works they see Done, glorifie God in the day of visitation. This sure, the English Bible is a rule good enough of all righteousness, profitable for do­ctrine, reproof, 2 Tim. 3 16, 17. correction, instruction, that the Man of God may be perfect; the light thereof shines from above and guides thereto, and the end of its obedience undoubtedly everlast­ing life. Which blessed Book sith so lighted on again, let us a little sit still to turn the leaves thereof onely, it may fit our close to end with God, perhaps we may there meet with some Angel of His in the way, with his sword ready drawn in his hand to stop our Career in stubbornest resolution to go on in the ways of our own heart; I will suppose clear what proved [Page 314] that the Ministery has right, (as things stand) right, and their spoliation is wrong; and then O brother Christian, Go along with me, and see what thou wilt say to thine own believed, received, inspired, and that thy self takest for Gospel (So R. Verste­gan compounds and derives that word: as if it were God [...]-spell Spell [...] a Mysticall Speech, or an O­racle, Antiq. pa. 223. Gods-spel,) thy revererenced Divine Oracles.

And first, doth not that Heavenly Law forbid generally All Exo 29 5. Ps. 5. 5.-28. [...]-36. 2.-37 1-66. 18. Eccles 3 16. Es. 5. 18.-57. 17. Matth. 17 23. 2 Tim. 2. 19. Tit. 2 14. Iniquity,Exod. 20. 21.-23. 9. Psal. 12 5. Prov 14. 21.-22 16.-28. 3 Ier. 7 6. Ezek. 22 7. Amos 4 1 Mich 2. 2. Zechar. 7. 10 Iam 2 6. Oppression,Exod. 20. 15. Lev. [...]9 11. Deu. 5 19 Pro. 30. 9. Ier. 7 9 Hos. 4. 2. Matth 15. 19.-19. 8 Mar. 10. 19 L [...]k. 18. 20. Rom. 2. 21. Chap. 13 9▪ Eph. 4. 28 Rev. 9. 21. Theft,Lev. 19 13. 1 Sam 12. 3, 4. Mar 10. 19. 1 Cor. 6 8. 2 Cor. 7. 2 Iam. 5 4. Fraud,Iob. 19 7. Ier 22. 3. [...]3. 1 Cor. 6▪ 8 Col. 3. 25. Injury, Lev. 19. 13 Psa 119 61 Pro. 21. 7.-22 [...]2. Will a [...]an rob God? yet ye have robbed me. But ye say, Wherein have we robbed thee? In Tythes and Offerings Ye are cursed with a Curse, for ye have robbed me, this whole Nation. Mal. 3. 8, 9. Robbery,Exod 22. 12▪ Matth 23 25. 1 Cor. 10. 11.-6. 10. Surreption, Extortion; and that1 Thess 4. [...]. No man go beyond and defraud his brother in any (worldly) thing, for God is of all such things the Revenger most severe, as is everywhere said and testified! Does not one of the Tenne Commandements (which children learn in their Catechismes) appoint, Thou shalt not take what is anothers, Thou shalt not steal. And mayest thou then pervert, suppress, with­hold, detain, and keep to thy benefit what belongs to ano­ther, and tends to his impoverishment as well as stealing, per­haps to his starving, certainly to the Wronging both of him­self and family? Is this no sin in thy Christian judgement? —Doth not another of the same Laws say, Thou shalt not Covet [...]What? thy Neighbours House, Wife, Servant, Oxe, Ass; and that All? Is it not as well his Sheaf, Lamb, Fliece, Apple, or Egge? for the reason is the same of both: Or, doest thou think God will be so pinned up in his holy and just intentions against All wrong to some straitning interpreta­tions of thine, as may leave Thee loop-holes open, evasions or shelter for in any thing thy wretched Covetousness? Be not Deceived, God is not mocked; To covet is the sin, not This or That, 'Tis the injurious intent not greatness or kinde of the object of that injury is forbidden; And to make all sure, the close windes up all in the largest and most comprehensive Universality, Not this, nor that, but, Nor Any thing that is thy Neighbours. Look upon them again: These are two of Moses Commandements, of Gods Laws, ('tis much in so small an Enchiridion or Summary of duty, the same should [Page 315] finde a double place by prohibition and repetition) engraven on Tables of Stone, but a transcript from the bosome at first (a true Ectypon of that Original,) of which our Redeemer and Law-giver,Matth. 5. 18. says, Heaven and Earth may pass but these shall not, and which thou art with equall strictness bound to keep, as that, Thou shalt not ly, Thou shalt not blaspheme, Thou shalt not murther, Thou shalt not commit adultery. Wilt thou not These? Darest thou Those? Mayest thou not mur­ther! Wouldest thou Covet? Wilt thou not Ly, and yet Stealest?Rom. 2. 22, 23, 24 Or, Thou that abhorrest Idols, committest Thou Sa­criledge? Thou that boastest of the Law, through breaking the Law dishonourest thou God, as well as disgracest thy self, as it is written, The Name of God is blasphemed among the Gentiles thus. As if any of them shall see us breaking our own Law, transgress our Gods Commandments, trample upon his Precepts, and make no care of the revelations of his Holy Will, not half so much as of an Ordinance of Parliament, Will they not blaspheme, traduce, rail, revile, nay, male­dicere, Even Curse and profane our God, that has such un­towardly disobedient servants! Will they think him a God! or think we Think him Such, if we thus misbehave our selves toward him!Iam. 2▪ 10, 11. Doth not Saint James say, He that breaketh the Law in One point is guilty of All? and upon this ac­count, because He that saith, Do not commit adultery, saith also, Do not Kill, (or Steal, or Covet,) (the image of Au­thority defaced is the same) and doest Thou break Two and hopest to be innocent? Never justifie thy self that thou swea­rest not, if thou lyest: Or, thou speakest truth in Civill matters, if thou blaspheme: Or, thou dost not kill, if thou steal or covet. He that defaces the image of that authority shining from God upon All the Law that procures its Reve­rence, it is not far from his accounting any part a Common word, forasmuch as the same boldness that hath removed re­spect from any part, will by like occasion or temptation take off what is no better fastened nor can be any where: He that dares venture on the Chalice, needs not or will not scruple at taking the Carpet, or Bible, or Pulpit-cloth. 'Tis not a bro­ken collection, but a full and even Decalogue, All are equal­ly [Page 316] Gods Commands, and backed with his authority ingraven and shining in the face of every one, As was said, Heaven and Earth may pass away, but none of these shall pass. It is God thou must answer not Man for neglect and transgression here, Whose Law thou hast broken, Not but more then Whom in Temporals thou hast injured and Wronged. In the day when God shall judge the world by Jesus Christ, remem­ber then thou hast been told Both, both that He that break­eth the Law in one point, is guilty of All, and He who wrongs Here, breaks it in two, in Coveting and Taking.

Heed next what Thy Saviour saith, and this is at least Gospel-Law;Matth. 5▪ 20. Except your righteousness shall exceed (saith He) (Yours, Ours, Anies, that is his Disciple) the righte­ousnesse of the Scribes and Pharisees, ye shall not enter into my Kingdome of Heaven: Now what was Their Righte­ousness? They paid dues Duely: Questionless they did so, else they had not been Themselves, that is, Righteous. And for this Particular, by the Providence of God it is so come to pass, that we have repeated double assurance, and from Christs own words again, what was their Righteousness This Way. First, in his Personating a Proud Boaster amongst them,Luk. 18. 12. that He paid Tythes of all he possessed. Which if He had not, the supposition had been an untruth, the Man made to speak nothing to the purpose, Nor had he been brought in truly Commending, but indeed Belying himself, That hee should have done that he did not. Next in that Com­parative exprobration,Matth. 23. 23. where we have that Exactnesse that they Paid All to the least, They left none out to very Mixt Annis and Cummin, which our Saviour says, They Ought (So it was their Righteousness) to have done, and yet not have left Justice and Mercy undone. So that no doubt can be but they Paid, they paid duly, they paid of All, and this was Their Righteousness; and yet Christ to His Disciples, unless yours shall both Equall and Exceed Theirs and This, ye must not look to come within my Kingdome. Nor let any one ob­serve here Duty on their part, They were bound: True they were so, but are we altogether Free? Have we not a Rule of Righteousness, in some sort as strictly binding as Theirs, to make obedience duty, not performance Supererogation? and [Page 317] we as well as they are required not to give but pay? What else are those Laws before alledged many, and yet of force? Are they not All so many rules of Doing, or directing right forward in what way we must go, or we go amiss; and so by consequent our Conformity to them, our being Ruled by them must bring home the imputation to us of Going right forward or amiss, in the way of Righteousness or Unrigh­teousness, that We may be Just or Unjust as they?

We have no Levitical Law perhaps indeed, no Jus Divi­num, (at least not within my circle or which I insist on, though I forsake it not, much less disclaim or oppose it:) But we have yet without that enough of our own, and to binde fast enough, a Rule, a Law, Sacred, in force, and binding, as hath been shewed, and whereto we ought to take heed as that which in some regard was parallel with Saint Peters sure word of Prophesie, and is our light and rule to guide us through the darkness and uncertainty of this world: the transgression whereof is also penall and with us [...]infull too (for every dis­orderly liver is likewise a Sinner to God,) and it Must have the imputation of Righteousness or Unrighteousness, as We neglect or observe Here this Sacred, National, English Rule of our Doings. Nought else is the ground of Property, of Any property, that renders theft possible, or Wrong the Re­lative to Right; This is the boundary of Fields and Vineyards, cuts out to All their Lordships and Inheritances; and to obey or disobey, break or keep This, makes us as Culpable or Just, Righteous or Unrighteous, as by observing or transgressing his Judiciall Law the Hebrew could have been in Israel. No question but we have Law the Rule of Righteousness, as bin­ding to us as the Hebrews in their Politie; we may be as Righteous as they, and yet if we be not more, we fall short of our High hopes; for verily (says Christ) unless your Righ­teousness (that are my Disciples) shall exceed that (paral­lel) of the Pharisees, ye shall never enter the Kingdom of God.

Or, likest thou better another Rule of thy Saviour? It hath in it as much of wisdome and equity for civill Commerce as I believe is to be found in so many words in the world a­gain. Old Tobit had given it in the Negative before, Do to [Page 318] no other what thy self hatest. Tobit 4 15. But Christ changed it to the Affirmative,Matth. 7. 12. Therefore All things, whatsoever ye would that Men should do unto you, Luk. 6. 31. even so do ye unto them, for this is both (Text and Exposition,) Law and Prophets. A most indifferent Rule, equall restriction, which nature suggests, Reason approves, Religion inforces, and All Nations, Per­swasions and Men, will I believe say Amen to the Equity of: Thine own Saviour has inrolled it into the Sacred Tables of his Law too, the sum of his Moral Pandects, a short but full Declaration of needfull Duty, and doest thou resolve to o­bey, or refuse? If to obey, Ask thy self, Whether Thou wouldst be content another should thrust thee out of thy Right­full Right? If thou hadst a livelihood to direct and minister in Gods service, or but to serve thy self eating and drinking, Wouldst Thou imbrace it as acceptable good dealing (any o­therwise, then as thou wouldst submit to persecution) to be turned out into the High-ways, and Hedges, to get what thou couldst finde in the Forest, imbracing the Hils for a shelter, and the Rocks for a covering? If thou wert in present by due and honest forms of Law inducted and possessed A. B. Rector Ecclesiae Parochialis de C. and so tam de Jure Com­muni & Ecclesiastico, quam de antiqua, laudabili, legiti­méque praescripta consuetudine jus percipiendi, recipiendi, & habendi omnes & singulas Decimas tàm majores quàm mi­nores mixtas & minutas infra Parochiam de C. proveni­entes, crescentes, renovantes, & contingentes, did of right belong unto thee, (as was before in the Libel, and if proved carried the Tenth,) Wouldst thou, discharging thy duty, and carrying thy self according to Law for what thou receivest by Law, be willing thy Neighbour should deprive thee of That Own? and having right to receive the Tenth by the same title He retains his Nine, and would count him a Thief should take any away, Think well of it that the great Fish should eat up the little one to make his panch swell, the Nine should devoure thy Tenth, and thou be turned out of the Sweet and Safe of thy Property to a good allowance, thou hast no reason to doubt or fear, thy good Neighbours will afford (for the labourer is worthy of his hire) in Charity and [Page 319] Equity? Some Overseers Careful care shall see thy bowels fed, thy nakedness covered, thy needs supplyed, thy pover­ty relieved, thy whole family sustained? Put thy self in case of his person Now under doubt of being brought to this state by thee, Deal impartially between God and thy soul, satis­fie thine own thoughts in the proposition and resolution, and if Thou couldst accept, perhaps thy Brother May: If Thou Wouldst be so done to, thou mayst the rather expect it of Him: Petimusque damusque vicissim, What thou couldst be con­tent to undergo, thou mayst with more reason impose to have suffered. But if Thou abhorrest the inconveniencies foreseen in this way, Thy Nature (regenerate or unregenerate, san­ctified or prophane) hate the lowness or vileness if not base­ness that must be consequent upon such an injury (when thou shouldst not have left what thou couldst call Thine Own,) Thou wouldst not by choice part with thy Right any more then suffer an Extortioner to deprive thee of that thou hast, or the stran­ger to spoil thy labour; Nay, Thou wouldst defend thy self as against a foraigner, a Spanyard, an Indian, or a Thief; Then think what thou wouldst put upon another, State thine own Case in anothers person, as Nathan taught David to see his Sin in the supposition of his poor Neighbour, Invade not thy brother, Put not Him besides his Right, Enter not His Possession, Disturb not His property: Allow Him the Com­fort and Assurance of his His Own, which thou wouldst ra­ther spend to the utmost farthing, if not Dy, rather then suffer thy self to be put out of, to stand to the Courtesie of Supplied with any Charitable allowance. Good Christian, Do as thou wouldst be done unto, walk by thy Rule, Live as thou Be­lievest, or shelter not thy self under Profession with those of Whom thou art not Thou hast no reason to further or put up­on one, what should not upon another, to force on his ac­ceptance what another would decline, or upon thy ne [...]ghbour what mainly Thou declinest Thy Self: Thou mayest think I have the same affections, desires, needs, necessities, the whole body of humanity and humane frailties belonging thereto to be supplied or yeelded to that thou hast; The same infirmi­ties, diseases, emptiness, nakedness, to be fed, clothed, relie­ved, [Page 320] and in all regards worthy consideration as and in the way thou requirest, If Thou wouldst not trust to Nothing, if Thy self wouldst not be turned to the shame and misery of penniless bench, If Thy Love of this world consisting well e­nough with the Love of God would not be outed of Plenty and Wealth, stripped of property and left to uncertainty, [...], Be but as just and reasonable as old Tobit desired his Son,Tobit 4. 15. Do to None ( [...], No not to One) what thou thy self hatest. Iam. 1. 22. Whatsoever thou professest, or re­ceivest, or believest, Be a Doer of the Word, not a Knower onely,Rom. 2. 13. lest thou deceive thy self: for Not These shall be ju­stified before God, Iam. 2. 14. but Those; And, What doth it profit a Man that he say He hath faith, and hath not works, shall that faith Save? Ver. 21. Was not Abraham our Father justified by works, Ver. 26. when he offered his Son on the Altar? Whence we see, [...]by Works was his faith made perfect: And as the Body without the Spirit is dead, so Faith without Works is dead also. I urge an Apostles words onely in His meaning, and that must sure imply Heterodox in opinion from none that is in Religi­on truly Christian. Proceed: Is there any such Thing as The fear of God! Does any Text of the Old or New Testament mention it clearly to duty? Dost thou Believe it? and that thou hast it, or oughtest to have it? and Canst thou then take or detain that which belongs to another? or lay hold, or keep hold of thy Neighbours Goods? Do not the Principles of thy Religion improve and heighten the in-bred perswasions of Nature, Teaching, and assuring thee first, That this is Wrong, yea [...] and so [...] Transgression and Sin, and darest thou Then do it, when thy Judge look­eth on! pretend to fear God, and yet do what he Hates, and yet thou fearest him, Ecclus. 34. 21. and yet thou art confident to disobey him! Or, if thy filiall awfull fear be not yet awakened, let me Knock louder with that Thundring threat of thy Saviour, Luk. 12. 4, 5. And I say unto you my friends, Be not afraid of them that kill the body, and after that have no more that they can do. But I will forewarn you whom you shall fear: Fear him, which after he hath killed, hath power to cast into Hell, yea, I say unto you, Fear him.

[Page 321] Did not Zacheus, Christ his host, come in with his inju­ries in his hand, and before he makes any question of his Sal­vation, openly professeth his Restitution? Behold, Lord, Luk. 19. 8, 9. Discimus ab ex­emplo quid faci­endum sit iis quos peccatorum poe­nitet Primum enim quatenus fieri potest, resar­cienda sunt dam­na aliis pervi [...] aut dolum illata, quod ipsa natura dictat: Neque enim peccare desistit qui alien [...] retinet. Grot. in loc. pa 789. Pecc [...] tum non di­mittitu [...] nisi resti­tuatur ablatum. Reg. Iur. Canon. 4. & Peccati venia non datur nisi correcto Reg. 5. saith he, the half of my goods I give to the poor, and if I have taken any thing by false accusation, I restore him fourfold: Then Jesus said unto him (Comfortably,) Then and not be­fore, This day is salvation come to thy house. This (whe­ther stranger or home-born,) demonstrated him to be one of the Sons of Abraham. This is The way back by weeping cross: In the fore-Right of Injury no end probably foreseen but in Hell. He that Repents, must Amend: Hee that Amends, will Restore: For while the injury remains, is no alteration, and without alteration is no to better state-resti­tution. In the Scripture still, Does not the Old and New Testament require and joyn to call for Justice, Truth, Fide­lity, Honesty? That which isDeut. 16. 20. Just and Right shalt thou do, and Philip. 4 3. whatsoever is Iust, as well as whatsoever is Ho­ly: andRom. 12. 17. Chap. 1. 18. Provide things honest in the sight of Man as well as God; And sure the world counts this Honest, to give every one His own, the very Syllables of Rom. 13. 7. Render therefore to All their Dues, whether Tribute, Cu­stome, Fear, or Honour: And Owe Nothing, but to Love. Or, if we doe not, The wrath of God is revealed from Heaven (even to true Believers,) against all ungodliness and unrighteousness of men, who hold if it be the Truth, in ini­quity. Which, Iniqui Regnum Dei non possidebunt, 1 Cor. 6. 9. and Know ye not that it is so, It is Postulatum, a thing grounded among Christians, and with Caution, Be not de­ceived: (Some may tell you otherwise;) The unrighte­ous, and who are They? Fornicators, Idolaters, Adulte­rers, [...], unfit to be Englished, (good company! and with them) nor Thieves, nor Covetous, nor Railers, nor Extortioners, a good part of them those that meddle with other mens goods whether by force or fraud, in deed or de­sire, subtraction or detention, violent Extortion or clancu­lar Surreption, the sin, because the wrong, is the same, and Be not deceived, Do ye not know that These shall not Inhe­rit Gods Kingdome! Should not the Kingdome of his san­ctified [Page 322] and just Congregation, (his Church,) Here, but be cast out by Excommunication with profane Heathens, but shall not his holy and glorious Church of the first-born hereafter, where the imputation of moral Righteousness shall be the lowest qualification, The holiness of Saints shall be those white and shining glorious Robes without whichF [...]llow Peace with Al [...], and HOLINESS without which No one shall see the Lord. Heb. 12. 14. Blessed are the P [...]re in heart, for they shall have this advancement. Matth. [...]. 8. none shall be admitted to that Bride-chamber. Indeed such were some of you sometimes; but ye were washed (in Baptism) san­ctified (from the first uncleanness) justified (from the other unrighteousness) in the Name of Christ, and by the (search­ing) Spirit of our God, and so are now a Ephes 5. 27. pure Church not having spot or wrinkle or any such thing, but walking ver [...] 15. Circumspectly ( [...] exactly, precisely,)1 Thess▪ [...]. 22 Ab omni specie mali. avoiding the very appearance of Evil, andIud. ver. 23. hating the garment that is but spotted with the flesh.

Besides, we Know Love is the fulfilling of the Law; the summ of the Christians Law; The first, second, and third thing required, All is briefly comprehended in it, and can this Consist with wrong? Do I love my neighbour when I injure him, when I oppress him, and will not give him mine own, nor will not give him His own? Is this Justice? far below Love! Is not Mercy and Pity a strong piece of humane good Nature? Compassion to one that needs (much more to one that hath Right) the top pinacle of Christianity? I will have Mercy and not Sacrifice, saysMatth. 9. 13. chap. 12 7. Christ Hosea 6. 6. from the Law, and my Disciples shall be kept alive rather then the Sabbath san­ctified: And do these things Consist with Wolvish Cruelty and wrong? to spoil a man and his inheritance? to Rob a man of his Right, or not to give him his Right? Wherewith shall I come before the Lord, saith the Prophet, and bow my self before the High God? Micah. 6. 6, 7, 8. Shall I come before him with burnt-offerings and calves of a year old? Will the Lord be plea­sed with thousands of Rams? or ten thousands of Rivers of Oyl? My first-born for my transgression? the fruit of my body for the sin of my soul? No: He hath shewed thee, O man, what is Good, and what doth Jehovah require, but to do Justly, and to love MERCY, and to walk humbly with thy God? So in another Prophet, To what purpose is the multitude of sa­crifices? [Page 323] I am full of the burnt-offerings of Rams,Esai 1. 11.and the f