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england_n	common_a	law_n	statute_n	4,861	5	8.7366	4	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A38520	Epistola Medio-Saxonica, or, Middlesex first letter to His Excellency, the Lord General Cromwell together with their petition concerning tithes and copy-holds of inheritance, presented to the supreme authority, the Parliament of England : wherein the tortious and illegal usurpation of tithes, contrary to Magna Charta, is discovered, the blemished dignity of copy-holders revived, and how lords of manors have formerly incroached upon their liberties, by imposing arbitrary fines, and multiplying of heriots : whereunto is annexed two additional cases concerning the unreasonable exactions of fines and heriots, contrary to law, in these latter times ...	Cromwell, Oliver, 1599-1658.; Wingfield, Augustus. Vindiciae Medico-Saxonicae.	1653 (1653)	Wing E3170; ESTC R5296	18,776	30

the confirmation of Magna Charta Tithes were not at all comprehended in the Rights of the Church Which will yet more fully appear if we consult Mr. Seldens book of Tithes and the Roll of Winten In the first whereof pag. 137. It is delivered for a clear truth that there never was any Canon of any General Council as yet found that purposely commanded payment of Tithes nor any that expresly supposed them a duty of Common right before the Council of Lateran under Pope Innocent the 3d. 1615 So that at the Council of Lateran which was in the latter end of K. John and but 12 years or thereabouts before the confirmation of Magna Charta by H. the 3d. Tithes were not due by common right that is by Common Law and so consequently no rights of the Church And if not then due by Common Law then certainly not at the confirming of Magna Charta since in the judgment of all both Canonists and Common Lawyers 12 years is not a competency of time either for custom or prescription the one allowing 40 years at least the other time out of mind And yet to proceed this Respondent doth further acknowledge p. 14. that there was no Parochial Right of Tithes till after the Council of Lateran aforesaid 1615. and that after the Decretal Epistle of Innocent the 3d sent to the Arch-Bishop of Canterbury in the year aforesaid the right of Tithes was allowed but you must know by whom viz. the Pope and his Clergy not the People and so became Lex Terrae a Law of the Land which are likewise the words and judgement of Cook Now of what force and validity a Right of Tithes grounded upon a Canon of the Pope and diametrically repugnant to Magna Charta can be let all men judge since Cook their Oracle hath declared in his Chapter of Tithes that all Canons which are against the Common Law or Custom of the Land are of no force Now as to the Roll of Winton called by some Doomsday Book which was a survey of all the Lands Revenues both of Clergy Laity exactly taken by Commiss in every County throughout the Nation and returned into the Exchequer about the latter end of the Conquerours Reign It is there Recorded in particular what the Revenues and dues of every Presbyter and Church were but yet notwithstanding very rarely if at all are any Tithes found among the Church Revenues So that bence it is most cleer First that in William the Conquerrors time Tiths were no Revenue nor rights of the Church nor yet Secondly in H. 2. his time see the Letter and Petition p. 5. And lastly by the Authors own confession they became due onely but from the latter end of K. Johns Reign and that grounded meerly upon a Popish Canon contrary to Magna Charta which is acknowledged by the Learned to be the Common Law of England both before and after the Conquest The second and last objection which the Author of the said Treatise maketh is upon our exposition of the Statute of 1 R. 2. cap. 14. which wee shall here make good to be most genuine and true notwithstanding his false calumniation and that his Anti exposition is most absurd and false and such as had not Custom wrought another Nature in him to speak and write untruly could never have fell from him Now the question between us is whether the Averment there spoken of be Lay Averment and so to be made by the Plaintiff according to his exposition or Church Averment and so to be made by the Defendant according to our exposition whether of which is most true we shall leave to every one to judge by opening unto you the Nature of Averment out of the judgment of the Learned and by holding forth such reasons as shall in brief be produced And first Cowells Interpreter saith That Averment signifieth according to the Author of Terms of the Law an offer of the Defendant to make good or to unstifie in exteption pleaded in abatement or bar of the Plaintiffs Act. And Sir Hen. Smith in his book of Law fo 359 also saith That Averments must be offered to be proved true in Barrs 1. Answers Replications Rejoinders c. but not in Counts andDeclarations And of the same judgment is Sir Edw. Cook in his first part of Institutes fo 362. So that it is evident Averments are properly to be made by Defendants in their answears or in after pleadings and not by Plaintiffs in their Declaration unlesse in some few particular cases of which this is none as is evident not only by the Grammatical and Logical Construction of the said Statute but even in the judgement of Learned Rastal a Iustice of the Common-pleas in Q. Maries days who to put the question out of doubt hath set it down in the margent of his Abridgement of the Statutes to be Church Averment which we conceive to be a final determination of the question And as to your Ordinance of Nov. 1644. for the payment of Tithes we clearly conceive it to be the judgement of all the learned that it is of no longer validity than during Parliamentary Session which is now dissolv'd upon sure grounds of Piety Publique freedome right reason and honestie and that notwithout the Generall consent of the major part either precedent or subsequent of the Supreme Authority the People Now by what hath been said it will easily appear who doth most abuse and mislead the People and whether exposition of Magna Charta and the other Statute of R. 2. is most true That of the Letter and Petition back'd with right reason and the Authorities of great Lawyers and learned Iudges or that of the Author of the Treatise being a fancy of his own brain and raised out of implicite Terms which he that believs had need of of a Popish and implicite faith FINIS

the said Treatisers Arguments are fully manifested and the said Letter and Petition clearly vindicated from Error and Mistake BY AUG WINGFIELD A Member of this present PARLIAMENT LONDON Printed by F.L. for William Larnar at the Blackmore near Fleet-Bridge 1653. Tithes totally routed by Magna Charta HAving perused a Treatise of Tithes penn'd by way of Answer to its Opponents by one as it is conceived of the long Robe we thought fit to give timely admonition that though he pretend to be a wel wisher to Religion and Propriety yet when he speaketh fair men believe him not for there are it is to be feared seven Abominations in his heart who though his Sophisticated Arguments be covered with deceit yet shall his wickednesse be shewed before the whole Congregation Prov. 26.25 26. In his Epistle to the Reader he discovers both his spirit and his pride censuring his Antagonists as clamorous malitious ignorants though perhaps in the judgement of unbiased Moderators more learned peaceable and more Evangelically spirited than himself But fearing lest his great Diana Tithes the Nursery of contention and strife should in these days of Reformation and restauration of publique Freedom and liberty like Dagon before the Ark fall to the ground and come to nought he hath therefore out of his worldly wisdom judged it very opportune both in reference to himself and also to his Clients the Tith-taking Priesthood and Impropriator in this extremity of time to force into his Aid a Catalogue of Acts of Parliament though to little purpose since few of them before the Statutes of H. 8. intimate so much as a right much lesse command the payment of Parochial Tithes to Priests or others as if this Respondent would make us all beleeve that Ubi nomen Decima ibi argumentum Decimandi that wheresoever in any Statute the word Tith is found there is an argument for Tithing though by his leave in some of them by him quoted there is not so much as the name * Mag. Char. c. 1. Marl. c. 5. 25 E. 1. 2● E. 1. c. But although he and his Tith-taking Brethren have a long time like Simeon and Dovi confederated together not only to make us ignorants but still to keep so by perswading of us and our fore fathers That Tithes were first due by Divine Law then by Canon Law and now by Statute Law yet are we and the good people of England resolved to be no longer deluded by them with their Paralogisms and deceitfull reasonings And therefore that we may no longer digresse by way of preface we shall now come to reply and to examine those two grand objections which the Author of the said Treatise raiseth against the Middlesex Letter and Petition in the Expository opening of those two Statutes of Magna Charta ch 29. and 1. R. 2. ch 14. where this Respondent saith pag. 13. That for the Penner of the said Letter and Petition to make the People believe that the payment of Tithes is against Magna Charta is such an exposition as was never made upon that Statute and therefore to rectifie this Errour as he calls it he hath laboured though in vain to overthrow the said exposition and those invincible arguments built upon it and to set up his own contrary interpretation and false affertion viz. That Tithes and the payment thereof by the people were confirmed by Magna Charta ch 1. under the Notion of Church rights And first for proof thereof he saith pag. 14. That by the Common Law of this Land at the confirmation of Magna Charta Ecclesiastical persons had remedy to recover their Tithes in the Spiritual Court and then concludes that the Law gives no remedy but where there is a right which assertion is very untrue For Cook upon Tithes saith That by the Common Law Lands are undecimable and if undecimable then certainly by that Law there can be no Church right to Tithes neither to be recovered by virtue thereof in the Spiritual or Popes Court Since the people of England were not bound in Law by his Cannons Neither is Cook single in his opinion For Selden fo 291 saith That Arbitrary disposition of Tithes used by the Laity as well de jure of right as the positive Law then received and practiz'd was as de facto of deed and practise is that which Wickleff remembred in his Complaint to the King and Parliament under R. 2. The substance whereof in brief is That the proud and pompous Priests did constrain the poor People of England viz. by Popish Canons to pay their Tithes unto them whereas within a few years before they paid their Tithes and Offrings at their own free will and pleasure Which is also attested by Ludlow a Judge of Assize in E. 3. who saith That in antient time a man might give his Tith to what Church he would which is true sayes Judge Brook in Abridging the case Selden fol. 252. And the said Author further saith fo 290. That under Innocent the 3d. it was usuall in fact for Laymen by the practice of the Law at that time both Common and Canon to convey the right of their Tithes as Rent-charges or the like to what Church or Monastery they pleased and such Conveyances were clearly good And whereas the Author of the said Treatise p. 14. quoteth Mr. Selden for his Authority of Parochial right he is clearly mistaken since Mr. Seldens judgement in the same place immediately following is cleerly to the contrary and that which is here alleged as the Treatisers main Argument is nothing but the opinion of the Canonists recited by Mr. Selden and by him in the same and following pages fully confuted pag. 144 146. Moreover Magna Charta is by Act of Parliament made in 25 E. 1. called the Confirmation of the Charters adjuged and declared to be the Common Law of the Land which if true as it is most true then Tithes being not so much as named much less confirmed by Magna Charta are not due by the Common Law as the said Respondent weakly supposeth and so not at all under Ecclesiastical cognisance But he objecteth and saith That Tithes are contained in these words The Churches Rights Mag. Char. cap. 1. for further satisfaction whereof see Cooks exposition upon the very same words where he saith that Ecclesiastical persons shall enjoy their lawfull jurisdictions and other their rights but not one word of Tithes without diminution and that no new Rights were given unto them hereby but such as they had before confirmed Now if no new Rights were given then not Tithes since the Author of the said Treatise confesseth p. 14. that the Common Right of Tithes due to the Rector of the Parish is but from the time of K. John and then as M. Selden whom he quoteth p. 146. declareth not so much as in opinion established whereby it is evident not onely by Selden and his own confession but also in the judgment of Gook that at

Case in these words Inquirendum est etiam de custumariis viz. quot sunt custumarii quamtum terrae quilibet custumarius teneat qua opera quas consuetudines faciat quantum opera censuetudines cujuslibet custumarii valeant per annum quantum redditur de reddit Assisae per annum praeter opera consuetudines qua possunt talliari quae non ad voluntatem Domini which in English according to a true and Grammatical translation is as followeth Inquity is to be made also of customary Tenants that is to say How many customary Tenants there are and how much Land every customary Tenant holdeth what works what customes he doth and how much the works and customs of every Customary Tenant are worth by the year and how much is paid meaning by every one of the Rent of Assize by the year besides their works and customes which may be rated and valued as two or three dayes work in a year with Plough and Cart and which are not at the will of the Lord Whereby it appears that a whole Parliament esteemed of them as customary Tenants that their Rent was accounted then parcell of the Rent of Assize and that all their works and customes were certain according to the opinion of those two great Lawyers before-quoted who lived in or near the said times one whereof was Lord Chief Justice of England and the other a great and learned Bishop And for as much as Copy-holders have been as much oppressed in Heriots as in any other duty or service we will therefore in brief speak a word or two concerning the antient Law in that point Fleta lib. 2. cap. 50. and Brit. fo 178. both say that the Copy-hold Tenant making his Testament upon his Death-bed ought to make an acknowledgement of his Lord by giving of him one Heriot And Bracton lib. 4. cap. 26. saith that the Soccager whether qualified or free ought at his death to respect his Lord with one Heriot Quae tamen praestatio est magis de gratia quam de jure which prestation or performance saith he is rather of favour than of right and doth not at all touch the inheritance And if we look a little higher Glanvill Lord Chief Justice of England in H. 2. lib. 7. cap. 5. De legibus censuetudinibus Angliae of the Laws and Customs of England saith in these words Potest quilibet liber homo majoribus debitis non involutus c. Every Freeman not greatly indebted may in his sicknesse make a reasonable devise of his goods under this form according to the custom of the Country that he do acknowledge his Lord with the best and principallest he hath next the Church and afterwards other persons as he pleaseth but saith he whatsoever the customes of diverse Countries and places are in this point according to the Lawes of the Kingdom no man is bound in his Testament to leave any thing to any person but at his free will and pleasure For every mans will saith he is free as well in reference to Testamentarie Laws as to other Laws So that here you may plainly perceive that by the Law of the Land according to the opinion of this great Iudge no Heriot was due and if there were any due by any particular custome it was but one and that upon death only and must be given by the Testator by Will too and not be much in debt neither whereby it appeareth according to the opinion of those great Lawyers Fleta Britt Bracton and Glanvill all those Heriots which have been exacted of late in such multiplied numbers have been illegal unjust and contrary to the good Laws and Customs of this Nation in former times Now by what hath been briefly said it may easily appear to any indifferent man who hath incroached most upon each others Liberties Whether the great and potent wealthy Lord of the Manor carrying all things before him by the virtue and charm of his unrighteous Mammon or the poor despised trampled-under-foot-Copy-holder who hath been forc'd to lose his Liberties to preserve his lively-hood Whereas according to those great authorities of Bracton Britton and others above quoted all Fines Customes and other services of Copy-holders ought neither to be changed nor increased and that according to others who have strained the Law beyond its due bounds in favour to Lords of Manors all unreasonable Fines and Services are forbidden and if all unreasonable then certainly all Arbitrary since it is abundantly made known by long experience to the People of this Nation that all Arbitrary power as is the power of Lords of Manors to set what Fines they please upon their Tenants at Death or Alienation is oppressive Tyrannical and contrary to the peace and freedom of this Common wealth as fully manifested in a Declaration of this Parliament set forth in March 1648. In these words The Parliament of England elected by the People whom they represent have long contended against Tyranny and endeavoured to remove oppression Arbitrary power or power of will and all opposition to the peace and freedom of the Nation And again in another Declaration of the 7th of April 1646. in this manner And as both Houses have already for the ease and benefit of the people taken away the Court of Wards and Liveries with all Tenures in Capite and Knight services So we shall take special care that as speedy and as great ease may be had otherwise in other grievances as the pressing occasions of the Commonwealth will admit Wherefore these arguments premised being seriously considered we humbly crave of your Excellency that you would be pleased to intercede with our Representative for the removall of that unjust and slavish bondage and yoke which neither we nor our fore-fathers have been able to bear that so we may not only in spirituals but also in temporals enjoy that freedom and liberty which not only by Law but by right of Conquest is due to the wel-affected people of this Commonwealth It is the Law of Nature yea and the Law of Christ too Fac alteri quod tibi vis fieri do to others as you would be done to If so How can freedom liberty be denyed to those who with the hazard and losse of their lives goods and all have purchased freedome and liberty not only to their Representatives and well-affected Potentates but also to those who have been enemies to this Commonwealth whereby they who under the Monarchical yoke were in bondage not only in respect of their estates but of their persons also are now restored to a noble and glorious liberty whilst their fellow brethren who ought to be sharers in this freedome lye under the burthen of Tithes and bondage of Copy-holds many whereof do at this day retain the dishonourable names of base Tenure and Villanage in the worst sense as if we were rather returning back to Egypt than in our progresse to Canaan Ah most religious Sir did we