in the 1 In 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 the 2 Pulton pa. 109. print has it of uncertain time and 3 Instir 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 1 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 'T is 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 In 2 18 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 whose 3 Put 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 them 4 Rex enim misit certos Iusticiarios suos ad procedendum sub certa forma contra Episcopum Norwicensem alios de cleâ—o sibi adhaerentes quibus postea Rex scripsit ut hic habetur Gloss Norwicensem Lyndeâ— wood de forâ— 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 5 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 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 That 1 24 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 cases 2 And 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 Coâ—rts yet could not come at their dâ—â— tythes now settled upon them by any of those Coâ—rts which made it necessary they should be inabled to sue in the Court Christian where onely these dâ—es were tryed and that was thâ— thing thâ—â—e done and the new indulâ—encâ— 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 ascribed 3 Palton pa. 91. this grant that Where 4 Ib cap. 1. No Tallage or aid shal be levied withon consent of Parliament Nor 5 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 With 6 Ib. cault order to have it read every year 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 styled 1 9 Edw. 2. id pa 98. Articuli Cleri and so not like to afford nothing but Englished Articles 2 In 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
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 saies 1 id ibid. fol. 11 a very good Lawyer Then have we the Law of 2 Rep 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 to us Christians and 1 Because 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 cujuscunque majoris vel minoris administration is universae nostrae Reipublicae Iudices monemus ut nulluÌ„ rescriptum nullam pragmaticaÌ„ Sanctionem nullam sacram Annotationem quae generali Iuri vel utilitati publicae adversa esse videatur in disceptationem cujuslibet lâ—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 2 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 3 Whereof the Body given by Bracton Fleta c from times before Law Common 4 Vide Doct. Stud. Dial. eod cap. 11. Law Statute 5 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 The 6 Cook 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 supplying 7 Atqui 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 expressÃmque 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 â—o in seculo juris ejusdem aâ—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 allowed 8 Cook 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 agaâ—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 Distributioners of
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 I choose to represent from a fair Manuscript in the publick 1 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 2 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 libâ—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 3 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 4 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 Jurisdiction of 1 The 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. â—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. where 2 Id. pa. 200. The Prelates and Clergy of this Realm do greatly complain them for that the people of holy Church pursuing 3 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. Fulbeâ—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 4 Alledged hereafter complained in Parliament 2 Hen. 4. 4. And lastly a 5 The Annals of Burton cited by M Selden of Tythes cha 14. pa. 419. National Councel represented as one of their grievances at 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
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 as 1 Heb. 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 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 against 1 45 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 given 2 Pa. 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 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 Coppâ—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 1 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 a 2 So 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 't is called For the Clergy Anno 25 Edw. 3. 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
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 't is 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 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 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 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
better then a fool Bear 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 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 't is 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 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 1 pa. 489 490. Circumspectè agatis 2 pa 610 611 612 619. Articuli Cleri 3 pag. 619 c. the 18 Ed. 3. 7. touching the Scire facias from the Chancery and that 4 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 he thought spake wrote and judged that Tythes are civilly due when he shunned not to declare they were every where due 1 Report 2. fol. 49 6. in the Arch-Bishop of Cant. Câ—se avouched by a London Minister in his late answer to a Doâ—bt about the aâ—ienation of Tythes p. 17 And in the same Report fol. 45 in the Arch Bishop of Winch. Case
alledged by Spelm. de non â—emerandis Eccles Sect. 16. Jure divino To omit his own References to his Reports Be Sir Thomas Smith next a Doctour of both Laws and a principal Statesman His Description of Englands Republick passes with good credit in the last Chapter whereof he describes the Court Christian acknowledges its jurisdiction sends matter of Tythes thither as a part of the Work and if once he had them there he knew being not onely 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 what even to Mint and Cummin would become of them The Authour of the Dialogue between the Doctour and Student is 2 By Dr Cowell in his Interpret in the word Doctoâ—r said to have been Mr. St German It was wrote in Henry 8. days not toward the end and for the solidity and depth of it may passe for one of the very excellent and singularly jndicious pieces of that most excellent Learning Now He admits Tythes as consequentially due upon that account of 3 Dial. 1. cha 2. so 11. And in the new additions to that Book printed 1531. He tells us In the Kings Bench Common pâ—ace they will suffer no issue to be joyned specially betwixt person and person whereby he Right of the Tythes may be tried howbeit that in the Exchequer sometimes they have done otherwise Addit 5 fol. 14. Ecclesiastical Jurisdiction and this reducibe to the second ground of Law received here which is the Law of God and though the Student cannot afterwards well away with the Doctours Jure divino yet by Ours Positive and here he makes no question For by the Law of Reason one of the Grounds he had made of the Law of England before he would have somewhat for the Labourer is worthy of his hire and then by the Law of the Church This I question not how reasonably but thus 't was settled and the Constitution prevailed And he gives reason for all For 4 Dial. 2. chap. 55. fol. 165. there is no cause he sayes why the People of the new Law ought to pay lesse to the Ministers of the new Law then the People of the old Testament gave to the Ministers of the old Testament for the People of the new Law be bound to greater things then the People of the old Law were as it appeareth Matth. 5 20. And the sacrifice of the old Law is not so honourable as the sacrifice of the new Law is for the sacrifice of the old Law was onely the figure and the sacrifice of the new Law is the thing that was figured That was the shadow this is the truth And therefore the Church upon that reasonable consideration ordained that the tenth part should be paid for the sustenance of the Ministers in the new Law as it was for the sustenance of the Ministers in the old Law So howsoever it is a Due and he is there discussing the equity of the Statute of Sylva caedua which although he defend yet no more and in that enough as before was said speaking of it For if there were Assertion that a Prohibition should take place in that particular Case there was implication in others it should not a by-confirmation here and there and in neither can be doubt of what I desire Ascend at next step up as high as Fleta and Bracton for we are now among particular fallible men the Credit of whose Vote is not to be compared with the Publick and therefore we hasten accordingly yet so as we know what sway these bear in Judicature and that they over-rule the very Rulers and Judges Ego verò illos veneror tantis nominibus semper assurgo as I believe after Sir Edward Cook most of the chief Justices have been ready to say and I do unfeinedly Let Fleta be first and He 1 Lib. 2. ca. 60. Sect 27 c. p. 1 31. speaking of Contracts and Obligations by them and an Action of Debt justly grounded upon both gives the Tryall of Tythes in that Court will surely give Them Ex hujusmodi autem obligationibus promissionibus stipulationibus oritur in curia Regis quaedam actio quae dicitur Placitum ex debito eo quod spectat ad Coronam Regis saith he But except Nisi sint debita à testamento vel matrimonio suborta quae quidem in foro Ecclesiastico habent terminari sicuti omnia quae merè sunt spiritualia as Penance for sin though pecuniary So for Church Reparations c. 29. Item si Persona that is that living Man who as one seen and known stands forth and acts for the Church which is alwayes in it self a dead Corporation a Suppositum or Non ens without any real subsistence and must therefore have a seen known living Executour whose name may be used and being cloathed with Circumstances under being and existence In that name and under that Personality may do sundry things which otherwise conveniently could not As give or take gain or lose do or suffer the Churches Man we may stile him Rector is another thing 2 Laicus igitur praesentat ad Ecclesiam vacantem ut praesentatas Ecclesiam Regat Episcopus eam dat sc praesentatum admiâ—tit ad Regimen instâ—tuit Bracton l. 2. c. 23. f. 53. implying duty and grounded upon supposition of Power Now if that Person or Churches Man petat à Parochianis suis debitas decimas consuetas in the very words of the Statute of Circumspectè agatis vel si Rector agat contra Rectorem de decimis majoribuâ— vel minoribus dummodo non petatur quarta pars valoris alicujus Ecclesiae vel decimarum for then if also the Churches be of severall Patronage not otherwise the Indicavit takes place and the Right of Tythes must be tried in that of the Advouson between the Patrons whose Lay interesse is in question And of these all Sect. 32. Haec autem praecipuè in foro Ecclesiastico habent terminari non obstante Regia prohibitione It seems the nature of them was such that if they were drawn aside they could not rest there but must return to their proper chanell and with other things of the same nature have properly and together their discussion and determination in the Court of Religion And remember this all along That as the Philosopher sayes that which gives the Cause sufficient gives the Effect That which gives the means to compasse such an end may be interpreted to allow and give virtually that end will be so wrought in and brought about by those means Even so mediately that which gives the Jurisdiction gives the work and effect thereof That which gives the Triall gives that which will come of the Triall be it what it will virtually and in the sufficient and necessarily producing Cause Which is also of use in that which follows from the same Fleta in his Citation of the Statute of Westm 2. cap. 5. Where approving the Clause before of the