And such were some of you But ye are now washed 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 Vnrighteousness 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 the 1 Gen. 42. 35. Plate if it had been so 2 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 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 'T is 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 poeuaâ—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 câ—mpare what before pa. 37. pa. 244. whether we may equall the injustice of Entring the field of the fatherless whose revenger is 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
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 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 't is 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 'T is 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 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 that 1 Lyndwood 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 2 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 3 Polyd. Virg. Histor Anglic. lib. 17. pa. 324. entred his charge Anno Domini 1293. about 19 Edw. 1. and 4 Id. 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 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
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 1 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 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 1 7 Hen 4. cap. 6. is ordeined that no person Religious or Seculâ—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 Prebendâ—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 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 1 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 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 Hâ— whose they are let us be warned by other mens example what it is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to wash or câ—â—p that Coyn which hath on it the mark of God Hâ—â—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 Three 2 See 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 3 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 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 1 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 2 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
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 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 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 't is 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 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 't is 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
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 the 3 Is 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 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 if 1 Vid. 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 a 2 The redouble upon that is given in answer to an answer a term familiar in Law Ad replicationem vero sequitur triplicatio ad triplicationem quadâ—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. â—â—8 Triplication to which reply Yes so they may 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 ever 1 Quamvis Ecclesia secund â—t quod const tuitur lignis lapidibus sit res corporalis jus tamen praesentandâ— erit incorporale Bra. fo 53. had it in his hand or can tell who saw it or where it is The 2 Instit lib. 2. tit 2. deâ—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
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 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 1 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 2 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 Vsage 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 says 3 De divisione rerum c. 3. sect 2. Bracton It is as strong as Law And 4 Id 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 5 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 Aâ—glia coâ—sueâ—udâ—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 qualâ—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 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 heretofore 1 Ioseph de â—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 2 Honestum quidem est pugnare pro libertaâ—e sed id olim factum oportuit At qui victi semel sunt et longo tempore paruerunt si jugum excutiant faciunt quod desperatoruÌ„ 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 't is 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 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
extraordinary of those other who in private condition Dare venture to tamper with the Foundation of all Distances medling with that in Politicks does as much as the grace of God in Religion making one Man to differ froÌ„ another in wheresoever he does differ 1 Cor. 4 7 For what hast thou thou hast not received hereby 1 Tim. 6. 17. and that gives us all things plentifully and ichly sol ely only to enjoy But now some one May say These are but Logical Arguments humane Reasonings fallible and liable to Mistake Whereunto I answer as readily assuredly Even so and there is no doubt of it None so far out of the way as he that thinks he cannot err and incurably too for as much as this perswasioâ— in his minde is as bad as poyson in his soul hindring all possibility of healing his errour If then replied what farther probability It is not so here and This is right Have Others thought the same Hath any thing been done accordingly How have the fruit of such perswasions or Actions been exhibited in view and in things existent I answer Well enough And this leads inquiry into two things yet behinde fitly and to this place reserved and they are 1. What the Lawyers have given in as their Opinion upon the former or like Grounds 2. And what has been Dâ—ne What the one have thought and has been the fruit of the other seen in the World And first Ask the learned in their profession It uses to be so and prudence thinks it has had especiall work in such obeyed directions To the Physitian in doubt of a disease To the Artificer in a point of skill To the Divine in a Case of Conscience To the Husbandman or Artist in that their callings or conversations fit them to direct about Every one of these is wise in his work as the wise man says and we use to rely on the Practised and Experienced Go then to the Student Ask the Counsellor Move the Judge Apply to a whole Jury of Judges or the Corporation of Learned Men dispersed through the Land There is never a one will set his hand or his thought to the Contrary or deny it to This That Tythes are as due to their due Receivers as any thing else to whomsoever it is due He cannot go against his own light He must know This and he ought and will subscribe and do accordingly 'T were strange to finde one of a Kinde singular from all the rest He were a Monster of his profession that had the protuberation of a strange opinion excessive and swelling out of his bosome different from all other of his sort And as such they would look upon him at Westminster that should peep out into the world with this new discovery that Tythes are any longer Alms or a Voluntary Benevolence for the support of Christian truth not Duty and a Due by strict retributive Justice Have they not councelled Have they not practised Have they not judged Do they not Judge and still commit sentence to execution accordingly And manage the whole series of their most honourable studies and imployments Still as upon such a Supposition Unwilling men have not Given but Paid Could they ever relieve them They have complained Their goods upon this pretence have been taken from them Where was their remedy Their Neighbour Bench had Ordered Appointed Given It should be so Whence any Comfort Nay They the Secular Courts themselves have assisted For if the Consistory appointed and the convicted denyed to pay The sentence of Excommunication was Orderly and Leisurely but Certainly backed with the Writ De Excommunicato Capiendo to take him that refused as a Rebellious Son of the Church into safe Custody of the State as contumacious and refractory to allowed orders Ridley View of the Laws par 3. chap. 2. sect 2 3 5 6. and No relief but still and more assistance and farther prosequution by whatsoever Ployden and Littleton could do that one sword might help another Nay themselves have interposed some say Too far the Statute never meant it at the first instance and drave on the Statute of treble damages for Justice to Execution in their Court And were they not Just even when they were Judging as the King Ahashuerus desired the Queen should be Vashti according to Law Esth 1. 15. But to instance in some particulars Of which those that offer themselves are too many therefore I content to take up my self with a few Beginning with that right worshipfull and learned Benefactor even to the Learning of an University the most deserving of Religion Vertue Learning and all Goodness Sir Henry Spelman He was not indeed a Lawyer but More Himself bewails the mis-guiding of his tender years 1 In praefat ad Glossar pa. 1. and in his Treatise of Tythes pa. 161. too soon out of the direct way to graduated and professing in that most excellent knowledge But he that shall heed the demonstration he gives the world of his Sufficiency in those Noble Studies by his Glossary and sundry other exact pieces extant will be forced to confess him above even measure for a Professour and not unworthy to teach some Masters As having digged down to the foundation of our Fundamentals and not unworthy to sit in the highest Chair of the Learned Now he tells us in one piece as I remember for I have not the Book by me that although Tythes and other Rights of the Clergy had not been primarily due unto God by the immediate rule of his Word yet Are they Now His and separate from us by the voluntary gift and dedication of our ancient Kings and Predecessours and who shall violate the will of the dead whose impiety shall dare alter change invert divert the streams of their pious bounty and heavenly inspired charity out of those channels their wills set them in to move toward and end in the advancement of Gods glory If it be but a Mans Testament Gal. 3. 15. saith Saint Paul who disannulleth or addeth thereto being once confirmed and shall not religious indowments be yet more safe and from violation being Given Legacies and having all possible humane confirmation And in a Treatise published since his death he is yet more express T is fully and solely of the Right of Tythes and taking the subject at large He begins That God will have a part not onely of our Time but Goods That Christ released not Levi's part in them That there is something in nature for That duenesse and proportion That they are due by the Ecclesiastical Laws of Councels by the imprinted Laws of Nature by the written Laws of God by the received Ordinances of Nations and lastly screwing it up to the equall heighth of our proposition to a syllable That they are due with us by the Law of our Land Chap. 27. pa. 111 c. By what Law the very Secular Temporal All-ruling All-giving which settles all men in their possessions
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. yeâ— 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 â—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 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 him not so much title to those honouring Epithetes as his Worth and true Worthiness as we would call it Worthy-ship 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 falâ—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 probabilities as things depend here on their causes or in humane expectation which is to be our lower rule and