of their heavy burdens preventing Troubles usuall in separation hindering costly Suits formerly multiplied wherein Christs Minister had sometimes the hap or favour of Justice and to get the better of his wrangling adversarie that will remove the ancient Land-mark will remove any they which complain of this Imposition may ere long think others heavy that will unsettle one property will unsettle another None is more rooted then this hath its armes and fibres dispersed through the whole body of the Laws Common Law Canon Law the Statutes the Conquerours S. Edwards King Edwards the one past the other to come and hath indeed over-lived all the mutations and revolutions of State that have been ever since here we have account of any thing Good Englishman take heed in time thy lot is fallen to thee in a fair ground yea thou hast a goodly heritage if thou canst be contented thankfull quiet serve God and give every man his his Due Gen. 34. 21. As Hamor and Shichem to the sons of Jacob The Land behold it is large Here is enough for every one if we can do as we would be done unto give every man his Own and suffer the Law to be master and onely safe Rule to walk by I am thine own flesh and bloud and cannot but love thee yea my self in thee with such tears of love I beseech Let no grating Incroachments procure mutual Trouble and molestation Let not cruelty covetousness self-love pride malice discontent or pining envy that another man should have more then our selves that another should have as much as our selves that Gods Minister our Governour in the Lord should have an Own with us his known and granted Due prevail least we wrap him with our selves in misery and wo and all together in rage fury trouble war and by these wofull steps at last temporal if not eternal confusion If the publick had passed any thing to the contrary This would alter the case But I speak as Things are CHAP. XXIV THere remaineth yet one Statute more the last direct He that reades the former and considers their plain open and full Contents would scarce think it requisite their plainness should have an exposition or their fulness and sufficiency could need any supplement but men love the things of this World Dearly if any evasion be to be made from parting with the love of their souls they will finde it Call they the things of this World Goods their fears hopes cares desires and all the affections of their souls shew an higher price in their estimation as Best and loath to depart they sing for Religion Gospel the Service of God and to redeem the acknowledged Ordinances of Heaven from the land of utter forgetfulness Such is their worldly mindedness I speak not of all but so many there were heretofore as made it needfull to add what young King Edward did and by the advice and Authority of his Parliament to make yet stricter provision that former good Laws should not be perverted though 't is complained His is since as much perverted as any and men might not withdraw their Dues upon any occasion This was done soon after he began his Reign and in the words following Whereas in the Parliament holden at Westminster the fourth day of February In what manner Tythes ought to be paid 2 3 Ed. 6. c. 13. the seventéenth year of the late Hen. 8 there was an Act made concerning paiment of Tithes predial and personal and also in another Parliament July 24. in 32 Hen. 8. another Act was made concerning true paiment of Tithes and Offerings in which severall Acts many and divers things be omitted and left out which were convenient and very necessarie to be added to the same In consideration thereof and to the intent the said Tythes may be hereafter truly paid according to the minde of the makers of the said Act Be it ordained by the King our Soveraign Lord with the assent of the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the Authoritie of the same That not onely the said Acts made in the said 27 32 of Hen. 8. concerning true paiment of Tithes and every Article and branch therein conteined shall abide and stand in their full strength and virtue but also be it further enacted by Authoritie of this present Parliament that every of the Kings Subjects shall from henceforth truly and justly without fraud or guile divide set out yéeld and pay all manner of their prediall Tythes in their proper kinde as they rise and happen in such manner and form as hath béen of Right yéelded and paid within fourty years next before the making of this Act or of Right or Custom ought to have béen paid And that no person shall from henceforth take or carry away any such or like Tythes which have been yéelded or paid within the said fourty years or of Right ought to have béen paid in the place or places tythable of the same before he hath justly divided or set forth for the Tythe thereof the tenth part of the same or otherwise agréed for the same Tythes with the Parson Vicar or other Owner Proprietarie or Fermour of the same Tithes under the pain of Forfeiture of treble value of the Tithes so taken or carried away And be it also enacted by the Authoritie aforesaid that at all times whensoever and as often as the said prediall tithes shall be due at the â—he tithing time of the same is to be 1 In continuance of care the might be for remedying that 〈◊〉 mentioned to be redressed and was redressed by the Provincial of Sim. Mepham before Cap. Quia quidam tit de decimis Vid. Sup pa. 136. 171. lawful to every partie to whom any of the same tithes ought to be paid or his Deputie or servant to view and sée their said tithes to be justly and truly set forth and severed from the 9 parts and the same quietly to take and carrie away And if any person carry away his Corn or Hay or his other predial tithes before the tithes thereof be set forth or willinglie withdraw the tithes of the same or of such other things whereof predial tithes ought to be paid or do stop or let the Parson Vicar Proprietarie Owner or other their Deputie or Fermours to view take and carrie away their tithes as is abovesaid by reason whereof the said tithe or tenth is lost impaired or hurt that then upon one proof thereof made before the Spiritual Judge or any other Judge to whom heretofore hee might have made complaint the party so carrying away withdrawing letting or stopping shall pay the double value of the tenth or tithe so taken lost withdrawn or carried away over and besides the costs charges and expences of the suit in the same the same to be recovered before the Ecclesiastical Judge according to the Kings Ecclesiastical Laws And Be it farther enacted by the Authoritie aforesaid That
hath nothing to give for what he hath was given Deo Ecclesiae who are the proprietaries he but the usu-fructuary and so cannot dispose of anothers For to whom 1 Flet. lib. 3. c. 4. sect 1. pag. 179. Bracton ubi supra To any one Bond or free Minor or of full age Jew or Christian But not to a wife not 2 Quibus dare inhibetur Fleta lib. eod cap. 5. Magn. Chart. c. 36. to the Church in Mort-maine except by license for every thing is to be kept within its due bounds and a proportionable equality is like to be the Mother of longest duration A monstrous growth tends to the sooner ruine of it self or the whole and therefore in its favour it is provided the Church may not spread too big lest pondere pressa suo it fall with its own unweildiness Lastly What may be given what is Corporall or in visible a possession or a right a whole or a part but not what is 3 Nullius autem sunt res sacrae religiosae sanctae Quod enim divini juris est id nullius in bonis est Instit 2. de rerum divisione sect 7. F. â—ib 1. tit 8. lib 2. sect sacrae Bracton lib. 1. cap. 12. sect 8. Extra patrimonium verò res sacrae Communes Fet. lib. 3. cap. 1. sect 3. no ones as is every thing sacred This is supposed out of every ones reach 't is no bodies on earth and so none can lay 4 Item donari non poterit res quae possideri non potest sicut res sacra vel religiosa vel quasi qualis est res fisci Bracton fol. 14 hand of it to give it forth to another CHAP. VIII THese things may seem needfull to have been pre-considered of gifts to the intent what follows may not seem to have crossed the generall Doctrine Among particular instances whereof to our purpose A little before the year after Christ 600. begin first with the head that which was to Augustine or in that Augustines time whom some love to call the Apostle of the English men who found most of this English part of the Isle as Barbarous as the whole is like to be when covetous men may save this expence We censure not what the grace or power of God can do but in likelyhood what he will Miracles are not to be multiplyed without cause nor he to be put out of his ordinary course of By-causes according to which we are likewise to expect and judge that will be in humane probability is by them Like to be He then found here the land dark as Sodome the souls of men over-spread with Atheism and Idolatry and no truth or knowledg of God which he divulged successfully and took care or the blessed Providence of God brought to pass that the Vine and the Elm were planted and have grown comfortably together Christian Religion and this acknowledged good support thereof being by one and the same Hand here planted and rooted and as they were born and have lived if any be God grant as Twins they be not taken away together also But whence does this appear we should gladly have taken it up from Bede or Malmsbury or any other creditable story but we have it from what was more authentick the most substantiall credit of a solemn law By all mens leave This shall be more creditable then any private Mans words what is planted and shining in any publick past law being less subject to forgery and subornation then any single simple mans Testimony whatsoever In King Edward the Confessors Laws then thus we finde Of all 1 De omni annona c. The Latin is after transcribed pa. 79. Corn the Tenth sheaf is due unto God and so to be paid And if any keep Mares the Tenth Colt but if he have but one or two so many pence So if any keep kine the Tenth Calf or if one or two so many half pence He that makes Cheeses the Tenth or if not the Tenth days milk In like manner Lamb Wooll Sheep Butter Pigs of all the Tenth The tenth also of the commodity of Bees and of Wood Medow Waters Mils Parks Ponds c. the Tenth to him that gives both Nine and the Tenth He that detaineth let him be forced by publick Justice so I interpret that called there the Kings and the Bishops because their powers were then represented together to confirm both ways Civilly and Ecclesiastically for so preached and taught blessed Augustine and so was granted by the King the Lords and the People Thus far that solemn Law the authority of whose testimony we shall 2 Vid. pa 90 91 c. hereafter more fully set forth when for the sake thereof we shall shew the whole collection to be one of the ancientest pieces of the Common law so often called for by the people confirmed by the King and entred into the Coronation Oath c. In the mean while by all the credit this testimony can give Augustine preached Tythes the People believed the King and Parliament granted for what can be less meant by Concessa sunt à Rege Baronibus Populo and under the specification of Colt Lambs Fleece Corn Milk Honey and most particulars claimed Let no man take advantage by thinking me so unadvised as to suppose Parliaments so early under that name which I know came in long after and whatsoever should carry that title applyed in strictness to any thing beyond a good way in the Norman times I should suspect it for Counterfeit but that Publick meeting which had the power and vote of the Land consisting of the Head and its subordinate Members call it Senate Gemote Court Councell or whatsoever else the Collection and Congregation of the Land granted this Object I know well what may be said to the contrary as that Bede who lived soon after and reports that story of Conversion at large Vid. Hist Eccles lib. 1. cap. 26. in fiu cap. 27. Interog 1. and is most authentick for those times and the following sayes nothing of any such thing not when he had just occasion so to doe for he speaks both of Augustines entertainment a few lands and his sending back to Rome about Church-maintenance in generall and how it should be divided but not a word of TYTHES Whereunto I answer True this but what then Answ 1. Negative testimonies are the weakest of proofs upon the matter no proof at all as silent witnesses that say nothing If Bede had said any thing we should have much listened and that whether he had spoke against or for us but saying nothing he is but a mute and no more to be regarded strictly then he that is called comes in and is silent 2. As to his yet mentioning other things neer the time of both was but when yet things were raw when he had not preached nor the people beleeved or in reward setled what they may have afterwards Time does
among the Charters thorough them and to the last and Great They now with ease and pliableness enough come along and have a place in the Petition of Right where That was owned sufficiently and as many Ratifications as there were intercedent even Parliamentary so many-must be acknowledged to fall in by the way at least by implication Hither Of that great Law of Tythes I mean which having so fair and eminent a place in K. Edwards must also have as full and frequent a ratification all along in that bulk of laws so ratified which justly occasioned this Narrative And by it we see a a part of that strength the Law of Tythes hath on this side the Conquest even in the Common Law still by that it was part of it at first and a very remarkable part of that is taken to have been the foundation and first rise of the beginning of the Common Law and since hath as now been seen allowed and approved with it all along with impetuous rage and violence called for by the people of the land and they would never be quiet but under this Regiment or without these beloved orders whereof Tythes were a considerable and eminent part If they had been pressed upon them by those were interessed by profit or the tyranny of command from above had settled or kept them upon their weak and declining shoulders as unwilling as unable to bear Reason would there should be at least some more colour of strugling to free themselves from the force and their hands have leave to loose their necks from the yoak of unjust imposition But sith they desired them bespake them contended for them and would not be denyed but fought that they might pluck and keep that Burden upon themselves what can be more equall then that as their own act binde themselves so their inheritours and successours also and that whether to gain or to losse yea to losse as well as to gain they stand to them and every good man with his own whether Act or Right sit down and Rest satisfied and very well contented Most things indeed finde some opposition few are so happy to escape altogether free and some Persons may perhaps think good to doubt of All here As whether these references dispersed and represented as before point to King Edwards Laws or some other which latter If All hitherto would seem beside the Cushion But in answer would be considered 1. That no such thing appears as mis-application neither are other with much probability suborned in their place 2. The title the old title and that from as far as Roger Hovedens time speaks for them and plain Hae sunt leges boni Regis Edovardi c. 3. Divers passages alledged glanced at and extant beside can hardly be understood but to contribute the strength of their Testimony this way 4. To this also the likeliest guides have led us M. Lambard in his Edition M. 1 Hist of Tythes cha 8 pa 224. Selden in his Allegations 2 Animadverson that Chap. pa. 164. D. Tildesley 3 Concil Tom. 1. p. 620. and of Tythes chap. 27. pa. 131. Sir Henry Spelman 4 View of the Eâ—cles Laws Par. 3 chap 2. sect 1. pa. 141. Sir Tho. Ridley and of late 5 In his late Eâ—â—dition of M. Lambards Archaâ—on Anno 1644. D. Wheloc of Cambridge Could all have been mistaken Were they all in the wrong Shall we take in a point of doubt the whole world of Learned men to be nothing else but a flock of sheep wandring from the truth themselves and leading others unto errour that follow them Take what we finde They are generally reputed His clearly styled His have continued to be reputed and styled so long enough and nought appears clear to the contrary and Why Then may we not Therefore embrace them for His and Genuine crediting the voice of the world Which how and why taken into the Coronation Oath we may by these things as they were in part also conjecture But of this hereafter or as shall be occasion In the mean time of them and of this Branch of Tythes in them Thus much CHAP. XVIII STEP we next into the Church but by degrees and taking in some such things by the way as could not have found so fitting place elsewhere As namely 1. Remembred be it that Tythes were payed under the Conquerour They were so For as well 1 Chap. 10. pa. 279 c. M. Selden hath it in divers particulars from the most authentique account of this Lands Survay represented in Domus-Dei Book others agreeing and enlarging his proof As 2 Ad An. 1074 pa. 8. vid. Selden ad Eadmer Histor pa. 168. And for after see the complaints supposing payment in Iohn of Chartres De nugis Curial lib. 7. cap. 21. Matth. Paris consents in thus relating a dismal Tragedy acted under William the first about forcing Priests from their wives They saith hee the Priests grew scandalous the people rose up against thâ—m Lay-men fell aboard with the Sacraments Any would administer Baptism and then went Tythes to wrack Decimas etiam Presbyteris Debitas igne cremant They acknowledged their Dueness but of malice they set them on fire loth the scandalous married Presbyter should have any good by them and yet afraid it seems to meddle with them for common profane use And they that did so in the next words we find treading the Sacrament under their feet 2. Own as about this time owned that Law of K. Edgar avowed after by K. Knoght or Knout and 3 L. Hen 1. câ— 1. among the additionals to M. Lambard whereof before pa 84. pa. 8â— now renewed by the Norman Hen. 1. for rule penalty and order for execution And this here assured from the best means of information a double entry thereof in the Exchequer Book among the fairest testimonies extant of the Land 3. Adde not mentioned before that which resembles a Parliament in the same King Hen. 1. days assembled at Westminster about the beginning of his Raign where for stating divers things then raised in doubt among others was ordered 1 Eadmer Hist Novorum lib. 3. pa. 68. Thus Vt decimae non nisi Ecclesiis dentur Let Tythes be paid to none but Churches Supposing their Dueness but limiting to whom they should be paid They might Not but to the Church Therefore There they Might else the supposition had been a vanity and the publick voice said as good as nothing Darkness seems to be over the meaning or what should be the import but light may be borrowed from the state of things then about and I conceive of it and them thus Then was not onely started but in a warm Câ—afe the great doubt between the Secular Regular States about the due and immediate Receiver of Tythes not the Dueness but the Due receiver and the claim parted between two the Church the Monastery The last might have heard 2 Serm. de
in any ones disturbing them he must needs disturb what hath the common foundation in with-holding them he with-holds what is due by as good Right as any man claimes any thing by he undermines that which is the stay and support of his own house or wealth and does what if the like should be done to him would leave him Nothing because He destroys that preserves and gives to him and All others Every thing If we all rest upon one strength and this be it imbarque in one bottom stand upon one leg and settle upon one and the same bough let any Englishman take heed how he meddle with this common support lest he infirm his own and not be too venturous of the strokes of his Axe for fear of danger to himself by cutting the bough himself in his greatnesse stands upon He may think to pare about craftily and with such prudent caution and an eye to himself weaken the whole that there be strength enough left to support his Own Right But this is neither safe nor honest Not safe to tamper with a common foundation to sprinkle fire in the next thatch that may catch home to bore a hole at the other end of the vessel where a neighbours wealth lyes thinking his own safe Not honest to designe any other mens equally Just and Due rights to be fed and preyed upon to increase ones own heap by taking or with-holding from anothers or to wish the next house pulled down and the inhabitants turned to the Common that one may take as much as he needs of the spoil to multiply or strengthen the Studds of ones own building That which is just and Right shalt thou do is the rule of the holy Law This is neither That thy Brother may live as well as Thou a mercifull and conscionable rule in Israel This takes away Brother Levi's life and leaves him a Beggar with others plenty A Beggar is not uncapable of bounty nor unfurnished with a hand to take what another shall arbitrarily give But we are not so unacquainted with the holy Law of God as not to know what heavy censures are there registred against those whose oppression covetousnesse or with-holding what is due shall make beggars Now Levi's an owner as well as Judah and by the same right as Simeon or Benjamin The same equal universal all-giving all-preserving Rule of Right the Sacred common law gives Him his and others Theirs 'T is the pillar of the temple upon mount Moâ—iah as well as the palace upon mount Sion stablishes the Church-house as well as the farm or Cottage and giving every one his own gives the Tenth part out of the Nine as well as the Nine whereout was taken the tenth Quod restat demonstrandum But first it may not be unprofitable to recapitulate and shew how one and the same thing may drive it self through all the fore-going considerations Take for instance a piece of gold or Anything and see how those truths take place or in this manner have their severall operations Thus. I. In absolute consideration it is no ones no more property of it by God or nature then of the moon and stars 'T is mine thine his every ones no ones II Yet it may be owned or else much of the good of it would be lost and the Courteous intents even of smiling fortune rejected by a sullen neglect of her proffered cheap favors But III. Who shall make this division I may not nor another nor another nor any Man Therefore 't is fit the Law IV. Which varying yet all have agreed in some things and that wherein they all agree is the best rule of partition and possession in the world V. But if severall States have fancies and wayes by themselves not finding what is commonly good to be best for them they May and their severall Owns be what they by their select rules shall have chosen VI. And particularly in England that under severall forms we have agreed to make severall parts of our one Rule the English Law So that then the gold above was 1. No ones Yet 2. Might be some ones 3. Whose not Man but the Law gives it to The Law I say 4. Universall in the world 5. Particular over-ruling in any place 6. With us Ours Or cast an eye upon a piece of ground I. That is certainly no ones by God or Nature for shew me the text or clear reason that says 't is whose II. Do not all mankinde know that severall men may have several rights and interests in the self-same house and land and yet neither destroy the other Is not the interest of the Lord paramount consistent with that of the Mesne and his with that of the Tenant and yet their properties and interest not at all confounded King Charles his answer to the Remonstrance touching HVLL 26. Maii 1642. pag. 5. Yet it may be inclosed God forbid else For are all possessors usurpers or the word of God without meaning that says Enter not into the field of the fatherless sure he may have a field III. Who hath inclosed who might Surely no Man Therefore the Law IV. According to what Effata or oracular determinations thereof In the world by the rules of the world 'T is his who hath most need who first entred who does possess c. V. In a region who hath bought inherited succeeded obtained by descent donation exchange purchase c. according to the forms of that Region VI. In Our nation who by the just pertinent and impartiall sentence and application of those all-giving forms with us it is setled upon which also admits of some further variation For 1. By unquestioned maxime the whole originally was the Kings He was Directus Dominus totius though the Dominium Vtile might be transferred to others No Alodyes left amongst us Independency of all and absolute a Monster All the beams that shine below in the lower world come first from the sun and what is in private stock from the publick store 2. Yet all is not his now pleno jure in full possession and round about every ways for he hath parted with Fees Feefarms Serjeanties Socages c. to intrusted Lords 3. His honours have Mannors as Chips of the great block whereof the Masters think they are to have some subordinate right 4. And those Mannors also their sub-subordinate dependencies of free and copy-holders 5. Either of which may have also their under-tenants for term of years life will c. 6. And these also let out the fruit to one degree lower him that dwels in the house manures the land and immediatly actually uses and possesses what so many others have their distinct superior rights and titles in Thus we see what may be by supra and substitution how many considerations the same thing may passe through each of which gives a new face before it settle any where and how many things we must have consideration of before we can distinctly know what is whose
particularity At the darkness of this remote distance we may not look to see every Mote but as things draw nearer so shall we see clearer This of Augustines time may have been only in Kent for there he setled and Chiefly lived the next will look to the cold Climate and in the next Missive which was about 200 years after see what took effect more Northernly sc The account of these meetings in these and more circumstances is returned in an Epistle to Rome about the year 786. when the things were done by one of the Commissioners and published by Illyricus in his Centuries Vid. Cent. 8. cap 9. col 316. edit 1624. In an Embassage directed to Offa King of Mercenland and Aelfwald K. of Northumberland with their Archbishops where the Commissioners were Gregory bishop of Ostia Theophylact of Todi in Italy both and they came first to Offa it seems because nearest and he because the business might concern him sent and called to councel Kenwolfe or Kynewlfe King of the West Saxons There the work was distributed Theophylact stays about Mercenland and Wales Gregory and his assistants go to Aelfwald or Osward King of Northumberland and Eanbal his Arch-bishop where a Parliament was summoned or that which had the nature thereof a meeting of both States Convenerunt omnes principes regionis tà m Ecclesiastici quà m seculares and the 17 of their decisions this Decimum Septimum caput 1 Ib. col 320. de decimis dandis sicut in lege scriptum est of setling tythes according to the Law 2 Decimam partem ex omnibus frugibus tuis seu primitiis deferas in domum Domini Dei tui Rursum per prophetam Adserte inquit omnem decimam c. ib. The tenth part of all thy fruit or thy first fruits thou shalt bring into the house of the Lord. And again by the prophet Bring all the tythes into my barn that there may be meat in my house and prove me in this if I will not open the windows of Heaven and pour out blessing abundantly and I will rebuke the Devourer for your sakes that destroys the fruit of your land and there shall not be a vine barren in your field the Lord saith it As the wise man speakes no man can give his own alms of his own unless he first separate to the Lord what from the beginning he hath required to be his And hence often it cometh that he that will not give the tenth is reduced to the tenth Whence with all earnestness we command that All study to give the tenth of all they possess because it is the Lords peculiar or reserve and live of the nine and be bountiful as they can This was proposed in the Assembly and besides the King and Clergy confirmed with the assent and subcription of all the Elders Captains and people of the land 1 His quoque saluberrimis admonitionibus Presbyteri Diaconi Ecclesiarum Abbates Monasteriorum Iudices Optimates Nobiles uno opere uno ore consentimus subscripsimus Ib. consenting the Judges Peers and Nobles And so to King Offa and his Elders or Senators or Councellors Senatores is the word who did the like his Princes and Clergy setting their markes Brorda Dux signo sanctae crucis subscripsi Faxwald us Dux subscripsi Beroaldus Dux subscripsi Othbaldus Dux subscripsi with a cross as the manner then was in their serious and religious confirmations A most observable Law says Mr. Selden if it be genuine as why should it not being made by both States and of two Kingdoms It is not like Illyricus forged it or would venture it to light without some Authentick authority considering who he was and what he is there a doing the phrase stile and forme speake much the tone of that age Our 2 Vid. Concil Brit. pa 291. pag. 298. Sir Henry Spelman followes him in the substance though not in the circumstance giving it due place in our Councels since published and unless we will question every thing why should we this He hath added the name of the place Concilium Calchuthense that is either Chalchuth or Calchuth or Celchyth or Cealtide for these several variations I find which Camden places in Northumberland though he had rather finde it in the higher Climate of some part of Mercia I should seek for it between York and Durham CHAP. X. ONe thing more is observable that although Kenulph King of West-Saxon-rie were present at the first delivery of the Letters we hear no more of him afterwards the approbations and subscriptions having onely the countenance of the more Northern parts for Tythes may not yet have been generally setled save in Kent by Ethelbert and Mercia and Northwards as but now which yet was after done ere long and namely by that Celebris donatio Ethelwlphi so much spoken of This clapped the severe and absolute injunction upon all the Kingdom having power so to do as the other had not infolding every part that was under his power and all was under the same constraint so that now to Tythe was as generall as to reap and by a Catholick command from sea to sea and from the flood to this worlds end Gods Ministers had now an appointed and setled livelihood wheresoever man had For the better understanding whereof this of story would be taken in by the way That 1 Cognoscendum igiturest quòd eodem hic titulo utitur Ethelwulphus Rex quo Egbertus pater suus bellicosissimmus acquievit cum universam HeptarchiaÌ„ suae subjugasset ditioni and how Vid. Spelm. Concil pag. 351 352. Speed Cbron. lib. 7. chap. 31. Polyd Virgil. li 5. pag 89 90. Egbert this King Ethelwlphs father had gathered together no longer before the dispersed pieces of petty-Royalties here into one greater Monarchy and bruising and battering the Coronets of seven at the remainder of seven lesser Kings had cast them all into one greater Crown moulded for his own head and left the power to this his son under the Title of Monarch of the Nation or King of England A fit time to do any great work and make or perfect such a change as should be Catholick and uniform not now This and That but one and the same throughout the Nation Before him it was King or Kings of Britain till the Caesars came Then Aulus Plancius Ostorius or others Lieutenants of Britain after the fell Saxons gave denomination to their severall shares of a conquered Heptarchy and we had South East and West-Saxons besides Kent East-Angles Mercia and Northumberland But this Egbert mastered All brake 2 Stow. Chron. in the life of this Egbricht pag 99. Speed ubi sâ—pr sect 6. the image of Cadwaline last King but one of the Britains triumphantly placed over Ludgate crushed the power and obliterated the partiall names of his own Countrymen and made all stoop to his sole Command under the new name of The Kingdom of England whereof he was
be free from all Tributes and regall services Speed hist lib. 7. cap. 32. sect 6. tythes Then in his acknowledgement were 6 Martyrolog lib. 3. pa. 136. ad an 844 in the life of Ethelwlph Mr. Foxe somewhat faintly the tythe of the Kings lands and goods in West-Saxon-rick with freedom from Servage But a 7 Ier. Stephens in pag. 132. of Sir Henry Spelman of Tythes late setter forth of a very learned and pious tract of this argument alledgeth it for a perpetual right of tythes and above All 8 Mr Selden in his Hist of Tythe cap 8. pag. 206. he that had compared most accounts and was as well able to judge as any and now after neer thirty yeers of painful and succesful study is yet living and ready no doubt to make good his constancy and justifie his opinion then published and not appearing yet revoked makes it out clearly for a right and law of tythes His words are these If we well consider the words of the chiefest of those ancients that is Ingulphus we may conjecture that the purpose of the Charter was to make a general grant of tyths payable freely and discharged from all kinde of exactions used in that time according as the Monk of Malmesbury and John Pike in his subplement of the History of England express it Decimam say they omnium hidarum infra regnum suum a tributis et exactionibus Regis liberam Deo donavit that is granted the tythe of the profits of all lands free from all exactions For the granting of the tenth part of the Hides or Plowlands denotes the tenth of all profits growing in them as well as Decima acra sicut aratrum peragrabit which is used for the tything of the profits in the Laws of King Edgar Ethelred c. and doubtless Ingulphus no otherwise understood it then of perpetual right of tythes given to the Church where he remembers it with tunc primo cum decimis c. So that the tythe of prediall or mixt profits was given it seems perpetually by the King with consent of his States both Secular and Ecclesiastick and the tyth of every mans personal possessions were at that time also expresly included in the guift because it seems before that hitherto that learned man the payment of all tythes had commonly been omitted Not so neither for what was then the operation of those weak and yet intended strong and powerful Canons before mentioned made with so good advice and strengthened with the twisted powers of both States in Mercia and Northumberland besides what in Kent a Rege Baronibus Populo But for All the land it seems none before had power of imposition and for West-Saxony none had attempted for the King that was present at opening of the letters we found not there at the conclusion of the businesse 1 Pag. 70. before So that Tunc primùm for this and for All together the decree might go forth here successefully and the liker it did for that as before we read of no more Donation but Confirmation no need to Settle after but order as was said to Pay So that considering the power was then vested in the Monarch-granter and also the consent of Tributary and as it were pupil-Kings with Nobles Peers and all their people Consider likewise the interpretation of dark words by those whose inspection was like to pierce deepest into the meaning of what was delivered or is perplexed with obscure expression And after interpretation fairly setting of such a purpose we need not doubt to conclude That so long agoe as those remote times about 800 years since above 200 before the Conquest even then when the Common Law was but in her swadling-clothes whereof little hitherto if she were then born as I beleeve she was Even then and as soon and fast as we may believe the power of Christian Religion to have had its work in the bosome of beleevers to make them contrive a continuall and setled support for their soul-saving new-come Gospel Tythes had a publick vote which created a legall Right And though I will not say All was done accordingly and the objection of after Arbitrary consecrations possible in some sense may take place in their way notwithstanding yet as farre as Law may create a right Then were Tythes no longer a part of Benevolence and Bounty but of distributive or retributive Justice every one living within the compasse of the Church being bound to pay back this support for the Ministery thereof in fulfilling those generall Canons of the New-Testament that call for maintenance and would not have the labourer uncertain of his reward but the Oxes mouth unmuzzled to take thus much and the Catechist to partake with the Catechumene in all his goods For we are not to look upon Regall and Legall commands as empty Cracks fit onely to fill the world with noise and clamour and exercise the chat of the busie multitude or learned mens discourses but Canons well mounted which being discreetly levelled also are able to make their way through whole squadrons of opposing Rebels to Law and Justice of that irresistible power that though private men would they cannot contradict evade or gainsay As being those words of publick vote and highest authority that if they say Yes will have no Nay The most serious disputes and results of Reason that are extant amongst men and that have this soveraign property always annexed to them That they of all other look not to be Disputed but Obeyed Lex est sententia qua bona tum praecipiuntur tum mala prohibentur sayes Jo. Lexie Iurisprud pa. 526. in vocab Lex Calvin Jus est authoritas seu facultas agendi secundum legem Justitia est virtus perducens ista ad exercitationem Proinde quoties audis has voces Lex Jus Justitia statim cogita monente Oldenb te divinum aliquid atque excelsum audire hoc est veram à Deo ipso dictatam honestatis formulam Almost the voice of God and not of man as if they were Neither is one thing more to be omitted who was present and assistant at this great work Him I take the world to have since owned and remembred by the reverencing name of 1 Vid Spelm. Concil â—om Eod. pa. 349. St Swithune formerly the Kings Christian Tutour now his Chaplain Bishop of Winchester and 2 For the King was committed first to the Care of Helmestan Bishop of Winchester and by him consigned over to Swithune Heimestan dying he was made a Deacon and elect if not Consecrate Bishop of Winchester and thence resumed to the Crown Speed Hist lib. 7. cap. 32. sect 1. subdiaconatus ordine initiatus Polyd Virg. Hist lib 5. pa 91. Vid Stow. Chron ad an 829. Hen. Huntingdon lib. 5. pag. 348. successor of the King himself in that See blessed by God to keep the Kings heart and the state of the Re-publick firm to Christ in that tottering
2 Hic igitur Dunwallo est qui primus c. Et qui leges patriae quae Mulmutinae dicebeâ—tur instituit inter Britones quae usque ad hottempus celebrantar inter Anglâ—s so then from the Britaine 's to the English they came Vrbes Templa fecit ut qui ad alla fugerer etiam coram inimico abiret viae tutae essent simili modo quae ad Templa rectè ibant ad aâ—atra col norum Posteâ— mortuus est in urbe Trinovantum sepultus juxta templum Concordiâ—e Britan. Histor lib. 2 in fine Ponticus Virunnicus living too on this side the Conquest ingages they were observed till his days Thus for the man Now for the Noble and Masculine Queen Martia the Loyal wife first and after learned widow of King Gunteline or Guiteline Remember both He and she lived before either the Conquest Christianity here or Christs incarnation Mulmutius under the second Monarchy of the Persians about 430. before Christ and this Qu. Martia soon after she was saith the same 3 Erat ei Guithelino Nobilis mulier Marcia nomine omnibus artibus erudita Haec inter multa inaudita quae proprio in â—nio peperenat invenit legem quam Britones Martianam appellaverunt Hanc etiam Rex Aluredus inter caeteras transtulit Saxonica lingua Pa Marchâ—tie-lage vocavit lib. 3. cap. 13. Geffry both noble and wel learned in the Arts Among other remarkable things she did she invented that Law the Britains used under the name of Marcian and from her no doubt might the Province of Mercia take name a large tract of Land reaching from Lincolnshiere to the heart of England as now and formerly known by this name as all know that are acquainted at that distance which King Alfred among other translated and called Pa Marchitie lage as the print of Geffry hath but the correcting 1 In the publike Library of Oxford in 4 H. 27 Art Manuscript more fitly Merchenelage or Martian Law and 2 Histor Britan l. 3. Pont. Virunnius 3 Flor. Histor at 4 cap. 1 Matth. Westminster and 4 Leges optimas à se nominatas diutissimè posteà à Britannis observatas instituit quas Idem Rex Alphredus sermone donavit Anglico ut ante delegibus Mulmuâ—iis demonstravimas Rich. Vit. lib. 3. pag. 199. Dr. White come in also here with their subsidiary assents and confirmations William of Malmsbury 5 Chronia ad an ante nat Chr. 442. ad an â—56 John Stow and 6 Histor Angl. lib 1. pa. 21 22. Polyd. Virgil have the same or much after the same And so not very like all would take up errour upon trust one after and from another But the true pedigree of the Common-Law may from beyond this 7 Occurrit in Historiis mentio legis Molmutianae legis Merciae alias Martianae Illam à Molmutâ—o Rege Britonum quem floruisse asserunt anno nondum elucentis gratiae 430. Hanc à Regina Martiana Lelando Martia Proba Guentelini Regis vidua dum infantis filii regnum tueretur ferunt conditam anno ante Nat. Chr. 350. Has duas leges inquit Cestriensis Monachus lib. 1 cap. 50 Gildas Historicus transtulit de Britannico in Latinum Rex Aluredus postmodum de Latino in Saxonicum quae Marchene laga dicebantur Ipse quoque Aluredus legem Anglicè conscriptam superadjecit quae West-Saxene-laga vocabatur Tandem Danis in hac terra dominantibus tertia lex emanavit quae Dane-laga dicebatur Ex his tribus legibus Sanctus Edwardus tertius Communem edidit quae leges Edwardi usque hodiè vocantur Spelman Glossar pa. 441. in Vocab Lex Merciorum Edward derive it self in some parts at least thrice as far with shew and probability So like is that I say else where There may be of Laws a Climatical fitness They thrive best under such an aspect and will hardly be pruned out We have Native some things and these Connatural with other whence they continue the same upon endeavour of removal and still sprout out again to a kind of immortality This by the way Now to return Whether these things be of certainty enough or not for the derivation of parts thus far sure enough what is generally received for the whole that the Common-Law as Common fathers it self on this King and S. Edward as before He made of severals this one intire Body wherever he had his pieces And so in this if we have it we have not onely Law but to create sure right in Temporals Secular Law Common Law this our setled and long continued all-ruling all-disposing Soveraign Common Law and this in the infancy life vigour and most powerful strength and chief ruling Raigning power thereof and all this for what many take to be no other then some tyrannical imposition of some latter statute yes so indeed we have the morning beames of this Soveraign light to quicken to best and strongest most assured Right This Right of Tythes Let more or as much be shewed for almost any thing in this Kingdom or Common-wealth The highest other titles pretend to or shelter themselves under is but under the Conquerour the most goe not so far and they are thought to ayme at a very great distance that can but look thitherward Insomuch that it became 1 Vid. Seld. of Tythes Review of Chaep 8. a doubt long since whether any Plea founded of right beyond were to be hearkned to and though the truth seems it was and many enjoyed on this side what they had on the other and had not forfeited by stubborn opposition yet an excellent Scholar the Aristotle of our Nation and a 2 Chancell Bacon Of the use of the Law pa. 23. And see also the Preface to Hen. 1. Laws late set forth by Sir Roger Twisden pa 155. professed Lawyer seems to give his opinion to the contrary That save Church-lands and those in Kent all else had their rights drowned in that deluge and save what was saved by mercy the rest then perished But now behold here not onely a present and ancient title but founded in the Common Law and so long since as makes it to have overlived clearly that bloody battel Planted there in words at length by the composer himself of that Law and so fully too as few things else are and so by consequent from the very beginning has a fairer farther deeper and more spreading radication in the inside and body thereof as 't were clasping in almost to another hemisphaere then most other lands tenements hereditaments c. can pretend to 3 Flet 4. 5. 14 A tempore coronationis Regis H. patris Regis E. was long since a good Plea From the Coronation of Henry the third And in 4 Bracton fol. 373. Henry the third's time from his granfather But here is that overlookes those clearly double and treble From the Conquerour and before What can if this cannot
disturbed Ecclesiasticall Jurisdiction 1 1 R. 2. c. 15. The Prelates and Clergie of the Realme do greatly complain them of that Disturbance in matter of Tithes against the Franchise c. But the words hereof were given 2 Pag. 151. before there needs onely now to remember thence 1. That Triall of the Rights of Tithes is there said to belong to the Church Court 2. It was then so 3. It 3 How long Sir Edward Cook looks back to some then late â—cts of State as 18 Ed. 3. cap 7. Articuli Cleri 9 Ed. 2. circumspectè agatis in 13 of Ed. 1. c. But the farthest of these was but within the compass of a Century toward the end of this yoâ—ng Kings great Grandfathers dayes and so far unlikeâ—y and â—nfit then to take the stile date upon them fâ—oâ— the gravity of a Parliament to have it said Of old were wont to be It was then scarce out of many mens memories and if it had been within ken of any such apprehension the plain intention of those sages would no doâ—bt have measâ—red out their words by things and set it upon its right bottom of something within view which some of them had seen to omit what shall be after said is fuller answer and plainer proof that in Hen 3. time and then likely by â—sâ— and câ—stoâ—e too this discussion of Dues was made and acted here upon this Scene had been so 4. Of Right it Ought to be so 5. To disturb was against the Franchise allowed and ratified by the Charter All which things are there plainly in a Parliament law acknowledged It was no new Incroachment but an allowed usage It was no new Custome then sprung up but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 delivered from hand to hand through many Generations It was not a senslesse Custome getting head tantùm non against reason andequity at first but the sage and advised Law had thus at beginning stated and till now declared and appointed And maliciously and Unduly 't is said to note the Fountain whence that grave Assemblie thought those bitter Streams proceeding Malice and Wrong men were indited for doing their then duty as of Right they ought to do and of old were wont to do but to proceed in the next Chapter is more Item It is accorded that at what time that any Person of holy Church be drawn in Plea in the Secular Court for his own Tithes taken by the name of Goods taken away and he which is so drawn in Plea maketh an Exception or alleadgeth that the substance and sute of the Businesse is onely upon Tithes due of Right and of Possession to his Church or to another his Benefice that in such case the general Averment shall not be taken without shewing specially how the same was his Lay Cattall Here was 1. Somewhat distinct from Lay Cattal and to oppose thereto 2. Tithes due of Right and that by Statute-testimony 3. Something to be done before the Secular Court can take notice when the subject is Tythes 4. The scope of all to hinder that Court. For if the Land-owner might suppose them Lay then as it was an offence for the Church-man to take them so that offence must be examined in the proper Lay Consistory but if they were Tythes taken away the Church-mans due Own then elsewhere where it was known what would be said and That seems forbidden This furthered The Goods must not be supposed Lay Cattall They might be proved the Takers own Tythes which must be done onely 't is known where And so the whole doubt of the Lists where the Controversie was to be tried which was the thing in question vanisheth This I take to be the meaning the words being dark and observe all along that Lindwoods Collection seems referred to as Text and even the Secular Law relates still to those Rules as approving to try by them whether this or That shall be taken for Tythes or not So that interpretatively the very Canon by approbation and allowance from abroad is the Rule of some Civil Right immediate with us and the Giver of some Title of Dominion the Church by intimation and supposition of the Parliaments Civil Law Immediatly the next was Henry 4. of Lancaster whose fatherly care continued to keep together these Dues to the maintenance of Religion and whereas some of the Order of Cisteaux had procured Bulls for the discharge not onely of the Land they used which was 1 Decr. Greg. tâ—t de decimis cap 10. ex parte tua allowed and a singular Exemption but of what they 2 Licet de benignitaâ—e sedis Apostolicae sit vobis indultum ut de laboribus quos propriis manibus vel â—umptibus colitis neminâ— decimas solvere teneamini propter hoc tamen non est licitum vobis decimas de terris vestri subtrahere quas aliis traâ—itis excolendas id cap. sequ farmed out which would not be allowed in manifest dis-agreement from the rest against this it was ordered 3 2 Hâ—n 4. cap 4. For as much as our Lord the King upon grievous Complaint made to him this Parliament hath perceived that the Religious men of the Order of Cisteaux in the Realm of England have purchased certain Bulls to be quit and discharged to pay the Tithes of their Lands Tenements and Possessions let to ferm or manured or occupied by other persons then by themselves for such discharge must be or else all paid In great prejudice and derogation of the Libertie of holy Church and of many Liege people of the Realm our Lord the King willing thereunto to ordain Remedie by the advice and assent of the Lords Spiritual and Temporal and at the instance and request of the said Commons hath ordained and stablished that the Religious Persons of the Order of Cisteaux shall stand in the state that they were before the time of such Buls purchased And that as well they of the said Order as all other Religious and Seculars of what estate and condition that they be which do put the said Bulls in execution or from henceforth do purchase other such Bulls of new or by colour of the same Bulls purchased or to be purchased do take advantage in any manner That Processe shall be made against them and every of them by garnishment of two moneths by Writ of Praemunire facias And if they make default or be attainted then they shall incur the pains and forfeitures conteined in the Statute of Provisors made in the 13 Richard 2. Done in the Parliament at Westminster in the Vtas of S. Hillary and we have by it a notable evidence of the King and Kingdoms good will and allowance of the continuance of these Rights that they would not suffer them to be curtolled or kept back unpaid not by virtue of an Order from Rome whose power how great it then was all know but willed rather a Praemunire against the Detainers Perverters and their Adherents and
Assisters The rest did so should they set out their Dues as of Right and accustomed A strong evidence they were due indeed when the State would not suffer them unpaid Now not onely these but some others it seems were wavering or shifting The Fermours of Aliens gave within few years after occasion to this Vote Item 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
that waited on the Altar heretofore did partake of the Altar there So he that ministreth the Gospel now should live 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 not of the Gospel but of the Reward of his good message or Glad tidings as 4 By M. Mede in Diatrib on the place pa. 329. hath been somewhat Critically but very Judiciously and Soundly observed on that Text. Thus then this Politick and herein wise and just Prince resolved and accordingly gave his minde in sundry Acts passing his seal The first whereof clear enough in it self and consequentially much to our purpose was in cutting off Appeals from hence to Rome and so making this Island-Church as having no dependance of abroad a perfect Independent Congregation For so it was then judged most expedient that the affairs of Judea should not be sent necessarily to Egypt or Babylon Jerusalem might conclude all controversies that arose in the Land where Jerusalem was and our Kings Crown being of Circular and thereby most capacious form was large enough to involve and comprehend under it a resolution of all those difficulties might arise under it And that Therefore all doubts should be referred to him Therefore all forain Appeals should cease Whereupon ordered and set forth as followeth 24 Hen. 8. cha 12 1. That this of England was an intire Monarchy 2. Had suffered prejudice by appeals to abroad so long as in Causes Testamentary of Tythes Oblations c. 3. It should be so no more but even those causes of Tythes again expressed be here put to a period And therefore 4. Enacted That All causes testamentary causes of matrimony and divorce Rights of Tythes Oblations and Obventions the knowledge whereof by the goodnesse of Princes of this Realm and by the Laws and Customes of the same appertaineth to the Spiritual Iurisdiction of this Realm mark that Parenthesis and the weight thereof and this engraven in the inside of a Law inferted into the heart of an Act of Parliament to give the testimony certainty of credit and the thing as much assurance to us as any thing we have without the Bible that all such causes I say already commenced or happening hereafter c. shall be examined discussed and definitively determined as the nature of any of the things aforesaid shall require here at home With power command and threat to all to do their duty Appeals to whom they shall be made and from whom and where the finall decision shall rest and All in All the Branches before specified Which does as much as any one Parliament Law can establish and assure the then power of the Church and thereby her following Acts even about Tythes expressed and by name and by consequent the Right and Property that should be at any time the result and fruit of all Which must amount to we know what In the next year we have more of the same nature in that concluding Proviso of 25 Hen. 8. 19. before mentioned about keeping life in the body of the Provincials for a while and till the new could be made when the Pope the seeming Head of them was taken off All know what dependance had been and both to composition and execution what influences were formerly derived from that forain power upon those Laws When the Head is cut off the lower Nerves use and by consequent limbs to lose all power and motion for want of intercourfe with the brain wherein they were rooted which might be feared or doubted here reasonably and this made it necessary to infuse a new life of power that should serve as then intended for a while to quicken the old body till a new should be framed by chosen workmen to fit the King better as to making and execution depending solely on his authority Accordingly done The mentioned Proviso ratifies all Canons Constitutions Ordinances and Synodals till the thirty two should have proceeded effectually If they have so done we have gained enough even to this particular and 1 Pag. 145. shewed how before If not this Howsoever we have gotten that the strength that is in the Provincials all of them Those for Tythes before and all other save what since revoked as about Tythes nothing has stands firm and fast by Parliament Constitution and the evident sense of the words is to the purpose of these things unavoidable But if both these be yet remote or not so fully home wrapping things onely in implying generals or consequences that take in Tythes but implicitly wherein by derivation which is always to us fallible may be mistake Come we next to that which principally and fully and in its finall and clear utmost scope intends and expresses Dueness yea Makes it and where the words of the Law give the utmost any order can a purposed Right and way for Recovery Where is that When the Cloisters went down and the whole Ecclesiastical state was thereby troubled not a little in 27 Hen. 8. Then was it needful and Then was it done and Then the right of these dues established intended to be perpetuall How appears this By the Statute made the same year in chap. 20. which thereon to make some judgement by the way as it is among the next that are nearest on this side toward us So is it the utmost and farthest on the other most mens weakness of sight is able to discern or reach to the apprehension of and yet they think they ken all and reach as they do as far as they can the bottome whereon all is settled But blame them not their sight is dim and being hindred by business idleness averseness to the thing or manifold other sorts of incumbrances or distractions that they cannot or do not purifie or strengthen it by art study industry and other painfull and laboursome means usual of searching and gaining the truth they work not beyond the sphere of their power and ability making able and fitting judgement of those things they have not the plain and simple knowledge or apprehension of that thereby they may be so able and prepared to judge They are reputed Learned if they can little more then turn an Almanack understand some plain English Authour or but have seen a Statute and then as the Aborigines of Italy which born and bred there travailed never far from their simple homes but wonder at all abroad which strangers tell them Or as some simple Rusticks who used to behold only the hils that incompass the valleys where they live think them to be near the end of the world if any thing be shewed them done beyond the mountains they dare scarce believe a part and will rest much perswaded that whatever travellers tell them is though they say what we have heard and seen declare we unto you little better then well-composed fables For they walk by sense and not by faith or that little faith they have is confined to the things of their own narrow hemispheres Even so These the utmost of whose knowledge or highest of whose
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
calcaverit pes tuus tua sit Gloss quta naturaliter ad F. lib. 1. tit de adquirend vel amittend possess This Book That Field This Garment or Sword or Diamond my Hand gives it me I have right to it in Conscience because I have it and as any other thing is another mans by his plea whatsoever so these Mine by bare Possession Which chiefly prevails in vacuity of title for then Quod nullius est id jure naturali occupanti concreditur says 2 F. de adquir rerum Dominio L. 3. Singulorum autem hominum res multis modis fiunt quarundam cnim rerum dominium nanciscimurjure naturali c. And of the severall such naturall ways of procuring one is by possession Institut lib. 2. tit 1. sect 11 12. Iure autem gentium sive naturali dominia rerum acquiruntur multis modis Imprimis per occupationem corum quae non sunt in bonis alicujus Bracton lib. 2. cap. 1. sect 2 vid. Flet. li. 3. cap. 2. sect 1. Gaius That is No ones and comes in my way seems naturally to come home to Me as Beasts that are wilde Fish Fowl c. which if I can take no one will doubt my right to Own them Nor skils it much 3 Nec interest feras bestias volucres utrum quis in fundo suo capiat an in alieno Planè qui in alienum sundum ingreditâ—r venandi aut aucupandi gratia potest à Domino si is praeviderit prohiberi ne ingrediatur Quicquid autem eorum coeperis eousque tuum esse intelligitur donec tua custodia coercetur Cùm verò tuam evaserit custodiam in libertatem naturalem sese receperit tuum esse desinit rursus occupantis fit Instit Vbi Supra where for though I might have been hindred coming into another mans Field what yet I take there is for my self I might have been keep out not from my fortune The wrong was in the intrusion not in what I have gotten But then I must fully have it For 4 Illud quaesiâ—um est an fera bestia quae ita vulnerata sit ut coepi possit statim nostra esse intelligatur Trebatio placuit statim nostram esse cousque nostram videri dâ—nec eam persequamur Quod si desierimus eam persequi desinere nostram esse ruâ—sus fieri occupantis Iraque si per hoc tempus quo cam perâ—equimur alius eam coeperit eo animo ut ipse lucrifacret furtum videri eum nobis commisisse Plerique putaverunt non aliter cam nostram esse quà m si eam coeperimus quia multa accidere possunt ut eam non capiamus quod verius est F. de adquirendo terum dominio L. 3 Sect. 1. Vid. Instit Vbi Sup. Bracton Flet. if I wound another take He that possesses must onely have the benefit of Possession and so I must keep else I have lost what I had gor So in the wars 1 Item ea quae ex hostibus capinâ—us jure gentium statim nostra fiunt adeò quidem ut liberi homines in servitutemr nostram deducantur Qui tamen si evaserint nâ—stam poteftatem ad fuos reversi fuerint pristinum statum recipiunt Instit eod sect 17. Our Bracton and Fleta have also the same Habet etiam locum ista species occupationis in iis quae ab hostibus capiuntur c Item quae ex animantibus dominâ—o nostro subjectis nata sunt eodem Iure nostra sunt Idem etiam in insulis in mari natis in similibus in rebus pro derelicto habitis nisi consuetudo c. Bracton ib. And elsewhere Possessio aliquando jus parit pro possessione praesumitur de Iure Id. lib. 4. tract 1. cap. 2. sect 7. fol. 160. the spoils of an Enemies Camp are Mine so much thereof as I can lay hold of Those Captives à Capiendo or 2 Instit de Iure personarum sect 3. servi lib. 1. tit 4. F. de statu hominum lib. 4. Mancipia eò quod ab hostibus manu capiuntur because they are touched to Property Servi also à 3 Servorum appellatio ab â—o fluxit quod imperatores nostri captivos vendere ac per hoc servare nec occidere solent F. de verborum signif l. 239. vid. Instit Digest in locis citatis servando non à serviendo from being kept not made slaves of are all reduced within the compass or restraint of Property to bee disposed of as the New Owner pleases But so long as they are kept again for if they break out and return again to their former liberty they are now again their Owne as before and not His whose they were who hath lost that whereby he had them These things may 4 See Bracton and Fleta in the places â—ited before have some speciall way of ordering with us but then generally they prevail Thus abroad and with Us too in some and most cases Nor want we instances of Right of Land so gained meerly by vertue and power of occupancy For although all were originally in the Crown if out derived from it and so upon extinguishment of the derivative title as Escheat should have naturally reverted to whence it came yet in some cases and by some circumstances it proves not so but a title may be 5 Chancellour Bacon gives an Instance Where an estate is granted to one Man for the life of Another and the first dye without disposing his Right Nor Heir nor Executâ—r â— nor Reversioner can have it So it is his that layes hold of it Vse of the Law pag. 24. See the example as large gainable and tenable by Entry as they call it and a man Have and have Right to Land meerly by Possessing it 2. I said moreover Possession is the first and naturall title Nothing is more Naturally Mine then what I do lay hold of Justinian 1 Possessio appellata est ut Labeo ait à fedibus quasi positio quia naturaliter tenetur ab eo qui ei insistit quam Graeci 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 dicunt Dominiùmque retum ex naturali possessione coepisse Nerva filius ait cujusque rei vestigium remanere in his quae terra mari coeloque capiuntur Nam haec protinus eorum fiunt qui primi possessionem eorum adquisierint F. de adquir vel amittend possessâ—in princ taught me so and Thence yet what we take is our Own as hee has from Labeo Ecce effectus possessionis the 2 Gloss Dominium ibid. Gloss there bids us mark it and it is remarkable For even beasts we see will rarely exclude the Possessour They have onely the Law of Nature they skill no compacts or force of agreement yet they observe whence but from natural impression for a kinde of right by Having whence though their ravin be greedily set we shall finde they cease to pursue
but de Jure of the right which has not alwayes taken place in action for good Laws have not alwayes had the good hap to conveigh so much felicity to the world as they might by being throughly and fully Obeyed but in the following he comes home Chap. 10. He 2 Pag. 278. acknowledges some payment under the Saxons by K. Knouts letter yet extant or if not punishment Many Churches under the Conqueror are 3 Pag. 280. marked with Ibi decimae in that most authentique memoriall of our Nation or perhaps this part of the world the book of Domus-Dei as in Sussex Hampshire about Basingstoke c. though this neither generall nor common then Other 4 Pag. 282. evidences of dueness and payment are under Hen. 1 Hen. 2. and to them And now they began to settle A parochial Right is 5 Pag. 283. acknowledged and supposed by Alex. 3. Hadr. 4. in their Epistles hither treating of them they lived about the beginning of Hen. 2. and it were somewhat hard to disbelieve in matter of fact such and so solemn asseverations and depositions But about Edw. 1. a parochiall right is granted by himself evident from the Stat. of Circumspecte agatis and the writ of Right of advowson of that date where the Esplees are chiefly laid in Tythes 6 Pag. 285. And by the practise of the Kingdom it became clear law as it remains also at this day he says that Regularly if no other title or discharge to be specially pleaded or shewed in the allegation of the defendant might appear every Parson had a common right to the Tythes of all annuall increase prediall and mixt accruing within the limits of his parish without shewing other title to them in his Libell After giving other things as of Cornwall from Chaucer c. He 1 Pag 288. concludes plainly the received and acknowledged Parochiall right in the practise of those times which hath to this day continued Neither is it necessary to adde more for the uniform continuance of it Save where a Statute hath discharged or a Modus decimandi which being Discharges doe clearly presuppose and imply one ration And this being a Lawyer he says is Regularly clear Law Some curiosities there follow and judicious usefull needfull disquisitions but so as nothing impeaches a full and universall Parochiall Right setled nine half hundred years agoe even by his concession And he hath been generally taken to be no great favouring friend to what more then needs he must grant in the Churches behalf though in this particular I never held him injurious or undeserving With his grant taken to be most sparing he howsoever grants this and this to our purpose Enough He avers moreover Chap. 11. that 2 Page 362. after Innoc. 3. time all lands paid according to the Canons and therefore no other title was made by the Archdeacon of Lewes to the Tythes of Barrington then in demand then that the Land lay infra limites Parochiae suae de Barenton chap. 14. giving the history of their Jurisdiction tripartitely into 1. that was before the Norman 2. to Hen. 2. And 3. since he has enough to the same purpose the minde whereof having been given before needs not to be here repeated again And these things at home are agreeable to what was abroad as cut out by the same rule for as times then were the Canon sate over all which how it discharged it self was shewed 3 Page 167. before Chap. 7. for Parochiall payment by the obeyed Decretals 4 Cap. cum contingat tit de lecimis Decret Gregor l. 3. Quia perceptio decimarum ad parochiales Ecclesias de Jure communi pertinet as the reason is given in case of new broke grounds and the action accordingly was Jure communi fundata intentio that is by common right Tythes praediall and mixt were due to the Parish Rectour if they were not by some speciall title enjoyed by some other Church or discharged by Canonicall exemption sect 1. for they were not so much given or granted by the Owners as then supposed or exacted or expected of or from them by vertue of any act of theirs as to concession of the right at first or after delivery As they had been Reserved by God at first at the grant of all in signum universalis dominii quasi quodam titulo speciali sibi Domino decimas reservante as the Law speaks Never making the right out of himself that it might return As a load of Hay a Mine of Lead or other Mettall belonging to the Lord is not so much a due issuable out of that land he hath let to his Tenant as a reservation to himself at first when the Land was let and he parted with the fruit of the ground or as if the same Lord cuts his wood or timber and carries it away from his tenants land His tenant Pays it not but gives way to the taking of that was always excepted and reserved Or as no Mannour or Parish ever laid out any Kings high-way but the King alwayes kept it for his other subjects out of the grant from himselfe So I say God reserved the times seemed to take things so the tenth as his part never parted with and as his Own somewhat like a quitrent it might be seized on Jure communi without any order or Act of man by vertue of primary exception or reservation And according to these things the Rector in his libell Page 151. upon the allowed Actio Consessoria needed propose no more then that the demanded increase arose within his parish the rest would follow Which action if Durand disallowed grounded upon common right supposed and approved rather of a Condictio ex canone by some positive made law not by generall right but Statute-Canon-Law or agreed on Constitution this is all one to my purpose and for an allowed granted right in those days which is all I seek for Of what is behither trusting to any that pretends to know I need say nothing All this from one man yet living and worthily of fame enough for learning not confined by our own seas nor scarce Christendome Neither can â—e but know and I beleeve will be ready to averr many times more in this case that if homage were paid to the earthly Lord rents or services to the publique or any thing to any man this signum universalis dominii was still allowed to Religion of more publique and nearer inward concernment then any thing else even to Gods house who is supreme Lord of All and his publique service neither may his Ministers but prescribe long enough for it Numb 18. 21. as due under the notion of equivalent to what was Levi's under the law Behold I have given them the tenth in Israel 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for their lot for their service which they perform in the tabernacle of the congregation But now steps forth Doctor Tildesley Animadversions on