settle a thing by Law to have its title thus written by the Founder Himself in cleare and evident Characters even in the infancy and the very face of the Common Law And here then before we go any farther let us a little stand stil and veiw the way we have gone what we have gained as 't were in another world before beyond the Norman turn Sure a Right a firme Right a legal undoubted publike Civil Right as good as any had as good as any could have what grant and assurance could make over and that publike and strongest What is that we own any thing by but agreement publike convention 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as 1 F. de Legibus Senatu que L. Nam Demosthenes Marcian the Civillian spake from Demosthenes the Orator which is that alone parts intercommoners and is the bottome every ones Own rests upon Now and this stands as full under as powerfully and vigorously supports these thus apportioned Rights as any other separate parcels whatsoever we have made it appear so in those days I look upon the Common Law in a twofold state of growth and perfection 1. As an Embrio preparing to some thing in rude and imperfect pieces 2. As a child like to be a man formed to a being and of some present power and abilities In each of which we could expect no more to appear for tythes then does for whether we regard those native and as it were connatural genuine Laws of our Country as having distinct force or as after amassed together into one community the Several parts made after into the Common Law or the Common Law made out of those several parts still in All tythes had a clear full mention and grant And this to the Baptisme of John from the beginning of Any Baptisme in this Nation We have donation wee have confirmation wee have Law we have penalty we have Thou shalt pay or thou shalt be punished if thou do not pay King Etheldreds Law King Aelfwolds law King Offaes Law King Aethelwolphs Law and also the noble Alureds the most glorious Founder of our state and government King Edmonds Law King Ethelstanes Law K. Edgars Knouts the Confessors and whose not beside the Parliament at Aenham other Parliaments Princes Peers People Lords Synods Senates What not and all from as undoubted monuments of truth and assurance as any the times do affoord He that will doubt these may as well doubt any thing whether those men were whether these Princes raigned whether there were an Heptarchy and the wrangling wasting consuming parts did at last coalescere into a mutually preserving Monarchy We have but credit of story and record for these and so for them and indeed for one part as well as another CHAP. XVII COME we next on this side the bloody battel and Sanguelac conveys us over to no less assurance or clearness of strength on this side that strangly successful invasion Non-revocation is first assured for who ever heard of such a prevailing vote as this since the Conquerors dayes quickned to life and power that no tythes should be paid Then for positive confirmations we have many Ever and anon some new sinews of strength having been added to those were before and repeated assurances of them comming in so thick and plentifully that they had need for their multitude to be sorted into parcels to avoid confusion 1. And whereas of K. Edwards Laws Tythes were a part as but now our first search would be therefore what notice and allowance is of Them and Tythes in Them 2. Next when and how the Consistory was erected with its lawful powers the proper scaen where these dues had motion and translation both as to stating their right and helping their Recovery 3. What were the Collateral impressions of state in this interval chiefly since the beginning of the printed statutes as in Magna Charta Articuli Cleri Circumspectè agatis c. to the Petition of Right 4. What is else abroad of Private stamp but Publike allowance as among the great Lawyers Cooke Fleta Bracton S. German Natura Brevium Book of Entrys c. On each of which heads is like to be found at least something and all hoped will be abundantly enough In any whereof yet we shall not so much tie our selves to follow our method as our business rather chusing to let our matter lead us then we forcing it and always esteeming our method such a line of our own making as that the compass thereof we may at any time without offence upon occasion transgresse First then to King Edwards Laws renewed repeated confirmed and sworn as they were a good part of the accompt that is of those are very ancient being spent in the mention of them and some wonder it is to see and consider for some Ages how peoples hearts were not so much bent towards as set upon and wedded to them Fickle men that use to love and hate in a breath with no more constancy then the winde blowes from such a set point of the Compasse Now for this and Then for that Yet such was their Immutable and Immortal love to their Avitae Consuetudines as they called them that they would not admit of any divorce from them the sword of a Conquerour could not terrifie from their embraces and any restraint for a time did but quicken their appetite awaken inrage their thirst to call for them so much the more earnestly after indeed undeniably It was harder to conquer These then the whole Nation besides The peoples hearts were soon quieted or subdued by one great Battail and a few other But their affection to these was such that ever and anon they were up in bloudy Insurrections They would not be denyed their Laws upon peril of their lives and still whatsoever bonds of agreement were made none would hold whatsoever peace was agreed on none would last and be firm unless These King Edwards Laws were the soder and braces as it were to keep all from falling back again to factions and fractions So in K. Williams time so in Hen. 1. Hen. 2. So in K. Johns so in others till they were planted in the Coronation Oath and there I believe lately they were in the last that was taken See of K. William first whose Laws bear this title The 1 Leges boni Regis Edovardi quas Gulielmus Bastardus postea confirmavit Laws of good K. Edward which William the Bastard afterward confirmed 2 Post acquisitionem Angliae praefatus Rex Anglie Gulielmus quarto anno regni sui Consilio Baronum suorum fecit summoniri per universos Angliae Consulatus Anglos nob les sapientes lege sua eruditos ut eorum leges jura consuetudines audiret Electi igitur de singulis totius patriae Comâ—tatibus viri duodecim jurejurando eoram Rege primùm confirmaverunt ut quoad possent recto tramite incedentes nec ad dextram
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
ca. 24. Lamb. pa. 132. to Wulfine of the same general nature thought not unworthy to be preserved among the undoubted monuments of that Age All which I yet so slightly pass over as that my judgment remaines the same both one way and other as before and for what was stampt with the authority of the Church that it had no doubt the Countenance of the Sate to be then a ruling part of the Common All-ruling Law which consisted both of Canon and Statute as they were after Called and each was a rule for what they did concern in the same Court where both Jurisdictions were then Combined and both their Lawes executed CHAP. XIV THe next Century gives us the 4 Concilium Aenhamenâ—e generale seu Pananglicum hortatu Aelfeagi Dorobernensis Wulstani Eboracensis A chipraesulum ab Aethelredo Rege edictumâ— acceâ—sitisq Episcopis universis Anglorum optimatibus in die S. Pentecostes celebratum Circa on 1009 Spelm. p 510. Parliament of Aenham made up of both States as well Church as Peers under King Ethelred in the contraction whereof is commanded that 5 Iura Deo debita unusquisque annuatim rectè pendito c. Id. p 517. K 10. Gods dues be paid yeerly Tythe of young at Whitsuntide of fruits at Allhallondtide but in the larger latine and a coppy of the same date of writing Thus Let 1 Id. pag. 527. cap. 10. the tythe of fruits saith the Kingdom and Calves and Lamb and other Ecclesiastical duties be paid yeerly to the Lord at fitting seasons 2 Sulh vel potius Sullow verbo paulùm immutato plurimis in locis etiam nunc aratrum significat aelmess notâ—oris est significationis quam ut interprete indigeâ—t ullo Ego me legisse memini in vetustissimo quodam legum Ethelredi Regis libello impositum tunc temporis in singula aratra Denarium unum Ea fortasse pensio est quam illi Sulhaelmess appellabant Glossar ad Lambard Arch. pa. 217. in vocab Arationis eleemosyna Eleemosynae aratrales or Sulh aelmes as I am informed a penny a yeers pention upon every plough 15. days after Ester Calf and lamb at Whitsuntide tythe corn about Allhallondtide and all these to God and by order of Parliament 3 Dubitaverit fortè quispiaÌ„ c. Spelm. pa. 529. It may breed some doubt of the universality of this power because it is called a Councel or Synod which use to be the titles of Ecclesiastical meetings But this is satisfied in part by a learned Kinght that it 1. 4 Beside what before Quodam tempore contigit ut Regis Aethelredi edicto concrepante Archipraesulumque Aelfeagi Wulâ—stani ho tatu instigante universi Anglorum optimates Die sancto Pentecostes ad locum ab indigenis Eanham nominatum acciti sunt convenâ—re Id. pa. 525. And in the close Haec itaque legalia statuta vel decreta in nostro conventu Synodalâ— Ã Rege N. magnoperè edicta cuncti tunc temporis optimates se observaturos fideâ—iter sponde bant Ib pag. 529. consisted of both States 2. was convened by the Kings power 3. treated of things not of the Church and 4. met at 5 Sc at Whitsuntide as K Edmunds was at Easter In quibus celebritatibus sicuti in illa Nativitatis Domini nostri convocare Reges ex antiqua consuetudine soliti erant proceres suos utriusque Ordinis ad fastum Regium adornandum Consilia regni ineunda quod latius alâ—bâ— declaravimus Ib. K Knouts great Councell at Winchester was after at Midwinters tide or in Natalitiis Domini nostri id p 539. p. 560. K. Bertulphs before at Easter and a very Parliament id p. 344. Ex more enim obsequii vinculo antiquâ—ssimo tenebantur proceres in tribus maximis festivitatibus Christi sc Natalitiis sancti Paschatis Pentecostes Regi annuatim adesse cùm ad Curâ—am personam ipsius exornandum tùm at consulendum de negotiis regni statuendumque prout fuerat necessarium Prodire igitur in diebus illis Rex solebat coronâ redimitus pro Fastu Regio se in omnibus exhâ—bere donec morem labefactav it Henricus 2. c. Id. p. 347. Parliament time which as times then were was thrice a year For in those dayes at the three great feasts both the King expected his Nobles to come unto him for greater solemnity of the time and being met they used to consult de arduis rei-publicae negotiis which was Parliament work which also continued long after as appears through the course of Matthew Paris his History who wrot to Henry the third So that I doubt not to affirm both that this was a Parliament and that one such meeting in three yeers is no such news in England for of old beside the law and observation thereof in practise about Edward the third's time for one before that they had usually three Parliaments every year In the same Kings time was also another general meeting at Habam Haec instituerunt Ethelredus et sapientes ejus apud Habam is the title and part of the text from the 1 Histor Iornal fol. 65. apud Seld. de decim p. 225. since Published by Spelman Concil circa Ann. 1012. p 531. Abbot of Jorneaux thus 2 Omnis Thainus decimet totum quod habet Ib. c. 1. Let every Thane or lord Tithe all that he hath And 3 Et praecipimus ut omnis homo super d lectionem Dei omnium sanctorum det Cyrisceatum rectam decimam suam sicut in diebus antecessorum nostrorum quando melius fecit hoc est sicut aratrum peragrabit decimam acram Et omnis conâ—uetudo reddatur super amicitiam Dei ad matrem Ecclesiam cui adjacet nemo auferat Deo quod ad Deum pertinet praedecessores nostri concesserunt pag. 531 ca 4. we command that every man upon his love to God and all Saints give his Church Scot and true tythe as in the dayes of our ancestors it was no new usage then but inherited from the days before that is his tenth Acre as the plough shall goe and let every custome be made good super amicitiam Dei for Gods love to the Mother Church to whom it belongeth and let no one take from God mark the weighty ingagements still that which belongs to God and our Predecessors again granted CHAP. XV. BUt none did more in this kinde then the Conquering Dane First he 4 Vid Epistolam Canuti Regis ad Anglorum proceres anno Regni sui 15. Domini nostri 1031. in eod pag. 535. sends from Rome mindeful of Justice here to all his Officers and Ministers threatening if all dues were not paid particularly Tythes the disobedient should smart from the sharpest edge of his severest laws Secondly when he came Nec dicto fuit deterius factum as saith the Historian he caused all the 5 Omnes enim leges
upon tythes obventions oblations mortuaries c. The King doth answer that in tythes oblations obventions and mortuaries when they are propounded under these names the Kings Prohibition shal hold no place although for the long withholding the same the monie may be estèemed at a sum certain But if a Clerk sell his tythes gathered into his barn for monie c. then otherwise And if the Kings Prohibition should not lay any impediment but things must be tried by the Canons we know and are assured whether tended and what that meant But more particularly here observe 1. That the power which is known would give them in is here without dislike mentioned 2. Plainly allowed 3. As to tythes by name 4. Strengthened By this that as in Circumspectè agatis no disturbance should be offered by the secular Judge impeading to proceed in their own way 5. And all this by Parliament Sending the trial where beforehand it was known how the business would go And then as if the supream power send a criminall offendor to the Bar of Criminals knowing how the case will there go looking on permitting and acquiescing in the sentence there to follow upon that sending They more then seem to confirm and allow whatever prove the issue such interpretation may reasonably be made here of the remission of these cases and the temporal power could not but be thought to own the event and what was done whether themselves sent for trial The provisions were as strict as well they could to hinder extravagancy for as treading in the steps of the Regia Prohibitio before if once the thing were never so little converted to seem temporal Away with it presently Grant it no longer protection here but allow suit for it wheresoever But if it remained spirituale vel spirituali annexum it self As reason would and the nature of the thing required the King says the Law says the Parliament says and all let the Church have her due If it be to try these things and bring them home to her own house let no envious incroachment grudge her right no not though by continuance of time the things have run so long as they may seem to have degenerated into a Lay-commodity Chap. 2. Also if debate arise upon the right of Patronage and the Quantitie of the tythes do come unto the fourth part of the goods of the Church the Kings Prohibition shall hold place if that cause come before a Judge Spiritual Insinuating and the practise hath been accordingly that if less then a fourth part or the Patron of both the same for so it was it must be tried as before And so chap. 5. where no Prohibition is to be had as in the title if tythe be demanded of a new Mill And the text Also if any do erect in his ground a mill of new and after the Parson of the same place demandeth tythe for the same the Kings Prohibition doth issue c. the Answer In such case the Kings Writ of Prohibition was never yet granted by the Kings consent nor never shall which hath decreed that it shall not hereafter lie in such cases And then let the Parson alone His strength is those Canons will do execution enough De proventibus auteÌ„ MolendinoruÌ„ volumus quod decimae fideliter integre solvantur had 1 Constit provincial tit de decimis cap. Quon aÌ„ propter Also Decima c. Molend noâ—um Venationum Negotiarionum c. tit eod cap. Sancta Ecclesia De prato de aquâ—s molendinis L. Edovardi Confess cap. 8. cited before De molendinis piscari s â—oenis Constiâ—ut cujusdam Episcopi about Hen. 3. time alledged by M. Selden pa. 231. Dâ— proventibus Molendinorum piscariarum foeno c. Decret Gregor tit de decimis ca. pervenit Of those forced by windes as well as water Mandamus quatenus H. Militem ad solutionem decimarum de hâ—s quae de molendino ad ventum proven unt sine diminutiore aliqua compeliatis tit eâ—d cap. 23. Ex transmissa And as of Mercha dise or praedialâ— without diminâ—tion of expence tit eod cap. 28 Pastoralis officii Rob. Winchelsee said before then in force Integrè that is without diminution the tenth dish not the tenth penny saith 1 Sc. sine diminutione sic ut solvatur decima proventuum verè sicut proventus accidunt viz. decima mensuâ—a quorumcunque granorum molitorum ad commodum domini molendini vel molendinarti pertincntium sic non sufficit solvere decimam pâ—out Molendinum transit ad firmam quoniam in firma de verisimili non est verus valor cum firmarius ultra firmam aliquid speret lucrari Gloss Integrè cap. Qâ—ioniam propter Lindewood And mâ—morand these Articuli Clori and Circumspectè agatis and some other had a clause to keep them inviolable by the late Parliament determination of 2 Edw. 6. 13. in the end Follows next Edw. 3. and here we have more In every K. Raign almost somewhat if but for recognition and to shew that that peece agreed with the whole As first There had been over-lookers as before of the Jurisdiction Christian who disturbed and discouraged but they did but over-look and hinder not absolutely take away the thing remained and hence proved Also some that pulled away a branch or bough rather from the tree hindering by Scire facias from the Chancery the triall of Dismes from its proper Court The King in the Statute for the Clergy before mentioned gives remedy for both in the two last Chapters of that Act. Chap. 18 Edw. 3. 6. Item Whereas Commissions be newly made to divers Justices that they shall make inquiry upon Judges of holy Church c. But the whole was transcribed before whereto I therefore remit Mark chiefly that clause that Causes testamentarie and others did notoriouslie belong to the Cognizance of Holy Church and the King said so Not Rob. Winchelsee or Jo. Stratforth or any of the past or then present Church-Ministers who did no more then they had power but the King Nor did they incroach saith He It was rather Then an incroachment upon them to interpose and trouble the orderly motion of their wheels tending to a just administration of things and giving every man his due in a way allowed by all the power that then was above and publick Chap. 7. Item Whereas Writs of Scire facias have béen granted to warn Prelates religious and other Clerks to answer Dismes in our Chancery and to shew if they have any thing or can any thing say wherefore such Dismes ought not to be restored to the said Demandants and to answer as well to us as to the parties of such Dismes that such Writs from henceforth be not granted and that the parties be dismissed from the secular Judges of such manner of pleas Saving to us our right such as we our ancestors have had and were wont to have of reason God forbid else
yet so as in All still no pretence was to impede the Jurisdiction of known due Tythes but if the Court were extravagant and would meddle with what was Lay then clog it with a prohibition that it might not exceed its bounds otherwise let it go on and proceed freely and fully without any manner of disturbance And this I say hath been the known way of proceeding view their Books ask the Lawyers themselves they will allow though they may finde some fault in my expression the reality of things and that what I aim at is right though I may faulter in the way of expression Nor is any thing more certain then the Restraint of their Restraints the Prohibiting of their Prohibitions that they should not step forth to hinder the Court Spiritual in that was such or belonged thereto the certain Consequent whereof was a known Recovery and translation of one fliece sheaf lamb or thing whatsoever of ten from one man to another This was a little extravagant but I providently forecast and conditioned not to be tyed too strictly to Rules of Method though of mine own making Too much exactness may be as incommodious as altogether loose This belongs to what I was upon the Jurisdiction of Tythes and thereby right and to the reflections of the Temporal State as it stood separate and favouring glances of which sort onely is all in this Cell we may properly look for and these though not alleadging one quarter of that is seem to make good what was undertaken abundantly CHAP. XXIX AND this of the first branch of Donation made out by many subsequent confirmations before under by and since the beginning of the Common Law as well before the Conquerour as since under these four heads of 1. The Confirmation of K. Edwards Laws wherof these were a part 2. The Church Decrees authorising the King licensing the State looking on and approving all the other power that was 3. The Acts of Parliament such as looked this way out of their direct way from the great Charter to the Petition of Right inclusivè 4. The Learned Expositors taken for Oracles of Law particular as Cook Fleta Bracton c. Adding some hint of proceedings accordingly and especially asserting throughout the Ecclesiastical Jurisdiction for them which will alone induce and make good all the rest All which together has been so much and the Roots of this Right so far shewed and evidenced to be spread hereby that few mens estates I beleeve can hardly shew or colour for the like and yet the men possess and enjoy what they have in peace and firm security for through all the good old Laws of the Land these roots are hereby manifest to have been dispersed and as it were through every part and member of our English State and Corporation Fees Socages and Serjeanties are but of yesterday the Children of Power rather then Right at first and take their utmost date on this side the battle of Sanguelac besides age and to us unusefulness affording other infirming considerations enough Mannours and Fee-farms of not much greater reason and equity and both Copy and Free-hold chiefly grounded on as they are come to us understood to be possessed the Word of the Law But these were voluntary Concessions of the highest powers in their solemnest meetings long since upon so reasonable consideration as to establish the doctrine of the Bible and so they yet stand to beare it up like the pillars that supported Solomons Ivory Throne Behither and beyond the Conquering day have held up strong and fast in despite of all storms that have been since our Nation believed the Bible whether to decay with it time will shew and if the reasonable and continued willing and authorising powers of the Nation all of them could by their pactions the surest ground create a Right Here it must be Sure and Firm such as the like is scarce to be found again in our Community All could not have been deceived nor force in every thing 't is very like mis-placed Laws Canons Acts Ordinances Decrees Statutes could so many effectual and in other cases sufficiently made Rules of Right be here made and yet not made and yet have born rule with obeyed power If Civill Right be stood upon could All so Many operative and continuing causes thereof have wrought from time to time kindly and vigorously without any effect or but Must contribute and do what humane Pactions and Concessions could or any thing below the footstool of Gods Throne The Divine Right I confess is of another sort more awful it separates clearly to an higher kinde and we look upon it as more venerable founded in God and partaking therewith of his constancy as well as holiness must be always without shadow of change the Same Nor can be touched upon rudely with profane hands without a Relative violation of that Majesty above from whence it proceeds And Therefore men should be very wary how they affixe this seal of Heaven to every Imagination of their Own stamping the Character of Divine Right upon disputable opinions entituling God thereby to their perswasions perhaps errours of fancies and but what they strongly conceive must be Thus of equall authority with Divine Oracles Highest presumption But speak of Humane Right what has its firmness whence all lower titles and inclosures have the agreeing Acts of Men and Mutual Humane Stipulation Of this sort I believe we shall seldome finde any thing better grounded or faster settled then This And if seconding and conspiring rules of common equity can contribute any thing to the backing and strengthening of what is so placed and settled these not wanting neither and by as good title as any men have any thing with us our tribe of Levi has here in England the same to the Inheritance of Israel Equail in this too that 't is as good as the best and if we had any better or higher this would no doubt come out with the highest But we have none Our Tribes pretend not to a partition from Heaven nor Dominion or Property Lordships Mannours or Honours to any thong to be cut out by but inferiour lower inconstant rules of arbitrary good Will and Pleasure guided by compact and Humane Wisdome And therefore Levi hath no reason to take it amiss if in this he be not preferred above his Brethren to a right of another sort if it should prove so and higher strain having a touch of sacred and extraordinary sealed from Heaven But rather bless his God if he have done full out so much for him as for others and as he did anciently heretofore among his own people giving him an Equall Highest Claim and Right with the Best and as near Divine as any of his Nation Which is both done and cleared certainly and should serve his turn sufficiently and abundantly CHAP. XXX NOW proceed next to other helping supports amongst men firm enough in other cases to create Right if these hitherto should fall short
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
stranger to their proceedings nor as to gain or lose did I ever do or suffer what might import favour or wrong to be thereby holpen or hindred at any time Onely this I have heard spoke out by the clear and loud fame of the world That here mens rights were tried and examined and lost and recovered Pleas were heard and sentence given and that sentence did or should or might have found obedience If all had not been right and square as we say exactly justifiable If there had been any remedy at Westminster or any where else that could have been thought of If the Goddess Themis had had any Asylum or refuge upon Earth whereunto covetous and carnal men might have had recourse in their fears with any hopes of protection in those affrighting tempests that like some kinde of lightning melted their gold and silver in their purses yea out of their purses No doubt but such desired shelter would have been made to with greatest diligence and truest endeavour Questionless in what dark or remote corner soever it had hid it self above ground men would have both sought it carefully and found it successfully Undoubtedly every one man would have told his neighbour and he another these more and by degrees all The information would so soon and luckily have propagated it self that no manner of doubt should now have remained whether such a place had been or not the path would have been more trodden to it then to any Church or Market-place in England But they knew there was none such They knew all was there of this nature while it was firm and answerable They knew those sentences were there in their kinde by the approbation of all men and Authority of the Law valid as those at Westminster Pulsa dignoscere cautus quid solidum crepet They knew Try whoso would There was that solidity Civil Laws did approve successions of Parliament had allowed the King had given leave the whole State had given allowance of those proceedings and above all the Law held them just and according to Law And so unless her self would contradict her self the head fall off from a principall member or Justice oppose Righteousness They all the Magistrates Powers Laws and Lawyers of England knew and could not but pronounce a just sentence in that Court for Tythes to be just were it for sheaf lamb fruit venison the tenth Thrave or but a Tythe-lock of wooll What a sentence did at Westminster that a decree did there What a Verdict and Judgement upon an Assise That a conclusive determination upon mature deliberation did here and What sufficient ground of Right that gave of Dominion that a man might thence claim a piece of ground or debt of money Hic codex est meus Haec domus est vestra By equall vertue of a like sentence here this due charged upon every parcel of land or herd of Cattle had declared right yea and judgement for it in order to execution Or if any would not come and submit vocetur primò secundò quòd si nec sic ad emendationem venerit Excommunicetur as tertiò leave was given in the Charter Thus as to the power intrusted with the Church I have now almost done we see what the Supream Authority gave in Commission we see what use was made of it we see what connivence or more there was of all other powers and what obedience likely but of this the less being unacquainted at Offices We cannot in short doubt but the Church made Laws about Tythes that they caused them to be done to execution that the State inabled them that the whole Civill Power more then connived or permitted appointed authorised and strengthned that power whereby was acted thus according to office and duty on one part and leave desire expectation and full trust on the other The result of all doubtless a full right a clear assured undoubted fast safe and honest title as good as Any had to Any thing and the evidence of things may discharge the superfluity of more wast words If any right were anywhere it may doubtless be reasonably thought to have been unavoidably Here Sure and Thus. There remains yet one onely thing more somewhat in intention was never quickned to full Act but was purposed to give much in little the life spirits and vertue of all before in the new intended to be purified Canon Law by Hen. 8. authority A thing often glanced at but here fit to be represented together and briefly and summarily was therefore thus The 1 25 Hen 8 19. Clergy upon casting off the yoak of forain Supremacy and submitting to that King petitioned to have the Provinciall Synods and all the Canon Law as far as of force here to be viewed and purged and this to be done by thirty two persons to be chosen by the King wherof sixteen of the Temporalty sixteen of the Clergy The King granted readily what perhaps he had willed to be asked and the persons were to be members of the present Parliament but because so great a wheel could not be brought about in so little time the Parliament sitting their desires inlarged were also granted that it might be done after and then so many Canons as should continue approved should be retained the rest as refuse cast away This was upon the matter to furnish the Spirituall Court with a new rule wherto as much of the old as would should have served the turn again but till that were done what was in being to remain and this so farre intended and minded even with an eye to this very particular that after when a 2 Provided always and be it enaed by Authority aforesaid that this Act for Recovering of Tythes ne any thing therein contained shall take force effect but only untill such time as the Kings Highnesâ—e and such other 32 persons which his Highnesse shall name and appoint for the making and establishing of such Laws as his Highnesse shall confirm and ratifie to be called the Ecclesiastical Laws of this Church of England And after the said Laws so ratified and confirmed as is aforesaid that then the Tythes to be paid to every Ecclesiâ—stical person according to such Laws and none otherwise 27 Hen. 8. chap. 20. new Law was needed for Tythes Proviso was thought as fit to be added that it should obtain but till the promised reformation In the mean while time slipping away and little or nothing done in the business under nor after Parliament there was need to have the power 1 27 Hen. 8. 15. renewed for longer date which was done once and again and so at length for the whole 2 35 Hen. 8 16. time of the Kings life K. Edw. 6. also 3 2 3 Edw. 6. 11. continued it for three years in his time All repealed by 4 1 2 Phil Mar. chap. 8. Queen Mary but revived by their 5 Elizab. 1. c. 1. Maiden Sister The fruit I find
needs no other demonstration then what was done But profound wisdome joyned with much piety and a conscionable regard proceeding in the fear of God not to destroy what they meant to reform or to purge out corrupt humours to the death of the patient made them soberly carefull we see and tenderly jealous not to meddle too far here and for fear of darkness over all discreetly advised to let none of the oyle be medled with that kept the Parish Lamp burning but rather gave hope of adding more where need was with encouragement to bring it in setting open a door to let in other supplies of needfull expence for these Lamps dispersed all abroad if God should so move the hearts of those that loved the Tabernacle and the light thereof to bring any offering To strip all having been a thought of such horrid injustice and barbarous impiety joyned with Improvidence as to Religion and imprudence into the bargain that in likelihood truth might have been in danger of perishing from the earth by this time and according to ordinary dispensations of Providence we have now had little enough of Law or Gospel to take up consultations for the maintenance of by that the Bible might have been near a stranger if this had prevailed But into their soft and tender bosomes by the Grace of God such thoughts had not leave and power to enter Why the tree thus planted hath not been known to bear fruit or this new body thus framed not received to be practised by is I said hard to guess the best reason I can think of is for want of Parliamentary allowance and subsequent confirmation for nought else see I wanting yet as strange that what a Parliament had appointed to be done and being done and accordingly should not have therewith what strength it could give But so it has been a dead letter hitherto onely living in the good wishes of knowing good men that it were quickned to full life and the last Ecclesiasticall piece I call it so in regard of the Materia prima out of which it was made the end whereat it aimed the things it directs about and its distinct standing off from the more common or secular that of this kinde our Common-wealth hath afforded Not unfitly reduced to this head of Ecclesiastick whose proceedings have been such by vertue of due power throughout this business that it needs no protection of Hyperbole to excuse that all have either liked or willed Kings States Parliaments Judges Lord Laws not sparing their vote of approbation to this particular still I mean and all that have have looked on either to allow or confirm With this one intimation more I close up the point that wheras this new body is not yet it seems authorised perfectly till it shal be All the old including those also I made use of before are in force by a concluding Proviso of that first statute 25 Hen. 8. 19. where the whole business was started The words are these Provided also that such Canons Constitutions Ordinances and Synodals Provincial being already made which be not contrariant nor repugnant to the Lawes Statutes and Customes of this Realm nor to the damage or hurt of the Kings Prerogative Royal shall now still be used and executed as they were afore the making of this Act till such time as they be viewed searched or otherwise ordered and determined of by the said thirty two persons or the more part of them according to the tenour form and effect of this present Act. But this not yet done and therefore all the former Canons yet of force till c. and that by this Authority CHAP. XXI AND hitherto then upon the proper Stage Let us next look upon the lookers on and see whether the Neighbour secular powers have either not looked this way or said nothing or not in allowance of what there The Church impowered as before hath acted as hath been seen to a full and fast determination of Right according to what she had in Commission or if she exceeded or went too far was checked as hath been shewed also But now hath the secular state added no collaterall strength to connive at least and more at what hath beene there done Surely so As they have done their own business Hers also having been taken in by the by sometimes in direct assertion oftner by glance and occasionall reflexe but by supposition constantly ever That supposition also often expressed as uses to be in collaterall not purposed mention of things but never but understood and meant as may be known by the evidence of things as they have been done and are left remembred Their very 1 Sub factis autem moraliter veniunt non facta considerata cum debitis circumstantiis Sic qui sciens praesâ—ns tacet consentire videâ—ur nisi circumstantiae ostendant quo minus loquatur metu eum vel alio casu impediri Grot. de Iure Bell. l. 2. c. 4. sect 5. silence if nought else were implying consent and suffering the Ecclesiasticall to continue medling with things of Temporall worth and not forbidding being strong evidence that they did allow Sometimes indeed the transgression of limits hath been questioned and this the true ground of All Prohibitions when the Church would meddle of things of 1 Regulariter verum est quod judex Clericus cognitionem non habet de Laico feodo alicujus Bracton de Except cap. 12. sect 3 Rex illis Iudicibus Ecclesiasticis salutem Prohibeo vobis ne teneatis Placitum in Curia Christianitatis quod est inter N R de Laico Feodo praedicti R. unde ipse queritur quod N. eum trahit in placitum in Curia Christianitatis coram vobis quia placitum illud spectat ad Coronam dignitatem meam Glanvill lib. 12 cap. 21. vid cap. Sequ. Bracton de Excep cap. 3. 4. vet tot Flet. lib. 6. cap. 37. sect 5. alibi pasum lay fee as the general word was de rebus tangentibus Coronam dignitatem nostram for then the King would forbid that extravagancy and stop the proceeding as reason he should But if keeping the due bounds and not going besides the nature of allowed businesses in spiritualibus annexis Now the Jurisdiction it self was never questioned but things reputed immoveably firm that had their determination here and the watchfull eye of a jealous neighbour either spied nothing or said nothing and in that much or if any thing by insinuation All was well Hucusque and contentment there should be no Prohibition But to come to some particulars having secular and more immediate Royall influence in giving of which I doubt not but the performance of promise shall farre exceed the measure of my undertaking or reasonable expectation all things considered and that the proper Repository of such things from their nature is elsewhere and I begin with the great Charter one of the most Authoritative Instruments and solemn
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
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
possible conversation or acquaintance is but in some plain simple English Book perhaps broken Statute Book or perhaps but some Abridgemement or Compendium Dispendium those excellent instruments of advancing ignorance and by help of little cost or pains inabling sluggards to know upon the matter as much as comes to just nothing build certainly and confidently upon this little as if it were All enough are resolute confident as if there were no more and if any thing be obtruded or questioned farther they bestow but their attention or wonder with 1 Act. 13 41. Habak 1. 5. Jewish incredulity they will not believe nay though a man tell it them Suspecting all that is beyond the narrow compass of their very short reach and not much caring if all other superfluities they esteem them so because they are not able to judge of them were buried in the pit of utter forgetfulness As little considering that their foundations have foundations and those yet again other and other and under and yet farther under and take away either or the advantage and stay of either the readiest way is taking to stir all to unsettle the firmest to tumble down the highest to leave order happiness peace and wealth buried under a heap of rubbish and the fair piles we now behold and enjoy even All the fruits of an orderly and advised disposition of things intombed under the scattered fragments of its own ruine and very confusion For old things are not to be cast away without possible inconveniences to new the foundations unseen are still a part of the fair building yea do support it and take away the lowest the next still sinks of any thing and by degrees All Even so take away the first settling Laws the under-praestructions whereupon things had their first settling composition and stay the rest totters and may expect ere long ruine in a State Particularly for tythes their fastest and most solid strength seems below in the old unseen acts of gift and first disposition the new can be never but a fair and presently useful declaration to set out uttermost to the sight of the world and as the paint that shines for people to gaze upon the strength of the wall and house both is in the inclosed materials and rocky foundation Yet because these are of great estimation with the multitude and ought indeed to be of some with All I shall not shun to give them intire in the opinion of the many enough to create a right if nought else were as if nought else were perhaps they might But as now things stand are so far from doing it effectually and onely that they do it not in any degree Any more then if a present Act should be made about Fines and Relieves the next age might think it gave the Lord that Right we know he enjoys already Or as a new Act about Quit-rents and Herriots should be mistaken to raise or warrant the things no man but knows had right before The most in addition any new order can doe being but to rectifie dispose or settle some new course about the things so due already that 't is that injury comes near a Theft to subtract or deny the just payment of them So the following later Statutes nor do nor can any more but to revive quicken and establish the ancient right of tythes extant and of long being before awaken mens dulness inforce their payment remove obstructions that have grown in by corruption with time and make that which is shine brighter and fairer by the fourbishing over of a new and fresh authority Their dueness being that these statutes did never intend to meddle with infringe further help nor hinder but they were what they were before and it were one of the most pitiful pieces of Ignorance befitting onely the Vulgar heard of unlettered Simplicians and deserving rather commiseration then the exercise of any of our manly passions to entertain a thought to or toward the contrary What! that these later Statutes created tythes Made them due Gave them that their abrogation should have a possibility of taking them away and what the service of God has to trust to by virtue of their promulgation This is such a shallow conceit is onely worthy the weak brains of the multitude where onely it possibly could be hatched or can be tolerated or indured no more excusable then if any should say Aristotles Astronomy gave the Sun a being in the Firmament or Charta Forrestae first set up Game or a present Law if it should dispose of did erect Parks and Chases or a new order about Escheats or Mortuaries the next mistaken Age might interpret to give them being and first beginning But to the words of the Statute which both in the beginning and progress have dueness of Tythes existent and then in being supposed and they are as followeth Forâ—smuch as divers numbers of evil disposed persons inhabited in sundry Counties Tythes shall be paid according to the Custoâ—e of the Parish c. Cities Towns and places of this Realm having no respect to their duties to Almighty God 27 Hen 8. cap. 20. but against Right and good Conscience have attempted to subtract and withhold in some places the whole and in some places great parts of their Tythes and Oblations as well personal as prediâ—l Due unto Almighty God and holy Church and pursuing such their detestable enormities and injuries have attempted in late time past to disobey contenm and despise the processe laws and decrées of the Ecclesiastical Courts of this Realm in more temerons and large manner then before this time hath béen séen For reformation of which said injuries and for unitie and peac to be preâ—erved amongst the Kings Subjects of this Realm our Soveraign Lord the King being Supreme Head in Earth under God of the Church of England willing the spiritual rights and duties of that Church to be preserved continued and maintained hath ordained and enacted by Authoritie of this present Parliament That every of his Subjects of this Realm of England Wales and Calais and the Marches of the same according to the Ecclesiastical Laws and Ordinances of his Church of England and after the laudable Usages and Customes of their Parish or other place where he dwelleth or occupieth shall yéeld and pay his Tythes and Offerings and other duties of holy Church and that for such subtractions of any of the said tythes offerings or other duties the Parson Vicar or Curate or other partie in that behalf grieved may by due processe of the Ecclesiastical Laws of the Church of England convent the person or persons so offending before his Ordinarie or other competent Iudge of this Realm having authoritie to hear and determine the right of tythes and also to compel the same person or persons so offending to do and yeeld their said duties in that behalf This was the Legislative part follows order in case of contumacy that the Ordinary or other
Judge shal crave the assistance of the Justices to attach the party and commit him to ward till he shall recognise to yield quiet obedience c. Provided that this extend not to London who were to have a way by themselves nor to hinder any remedy by due prohibition c. Nor any thing to continue longer then till the new Canon should be made which is not yet done and whereof before enough Mark the whole Tenour Is here any thing of giving Tythes Of wronging any man of a Farthing by a new and forced Imposition Of removing from one to settle on another To enrich Peter by taking from Paul Not a syllable But all upon supposition that somewhat was due before Let that be paid or if not the allowed ancient course is awakened and quickened for recovery So '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
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
30. these Tythes whither of the seed of the land or fruit of the Trees as we would say Corn and Fruit And accordingly paid in practise not without intimation of this Consecration and appropriation 4 2 Chro. 31. 6. They of Judah and Israel brought in Decimas armenti gregis Decimas sacras id est sacratas Jehovae Deo ipsorum as Tremellius Their Tythes of the flock and of the herd sacred and devoted to Jehovah their God Who complained He was defrauded even he himself in These 5 Mal. 3. 8 9. Will a man rob his God possibly the thing may be done or else here in vain questioned Yet you have robbed Me Wherein In these Ye are cursed with a curse c. And for the Attournment or making them over to Man to be received by him for his good Lord and Masters behoof 6 Num 18. 21. and compare ver 23. 26. Behold I have given the Children of Levi all the Tenth in Israel They were mine but I have Given them to Them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for their publick work of Ministration For the service they serve in the Tabernacle of the Congregation All this is in Gods Book to prove the possibility of the thing and abundance more not found or sought But now for what apprehensions Our Laws had of this thing here which is to the point indeed The beginning of the great Charter was remembred before 7 Chap. 1. Concessimus Deo hac praesenti Charta confirmavimus We have given to God for us and our heirs that the Church shall have All her Rights and Immunities And a part of the Church Rights were then in Tythes and Jurisdiction to Command them Whereas the Liberties of the Freemen of the Realm were given to Themselves as 't were into their own hands immediately Were those blinde days Was King Edward blinde also 8 Leg. Edovar cap. 8. 1 De omni annona decima garba Deo debita est ideò reddenda said he The Tenth due to God and so to be paid so preached Augustine and was granted by the King his Baronage and People Not Augustine of Hippo but one was more near us and more to be heeded by us though 1 Nosti quia Dei sunt cuncta quae percipis c. as the word were alleadged before p 74. And a little after Quid si diceret Deus Meus est homo quem feci Mea est terra quam colis Mea sunt semina quae â—â—argis Mea ammalia quae fatigas Mei sunt imbres pluviae ventorum flamina mea sunt Meus est Solis calor cùm omnia Mea sint elementa vivendi Tu qui manus accommodas solam decimam merebaris Sed quia piè nos pascit omnipotens Deus amplissimam tribuit minus laboranti mercedem sibi tantum decimam vendicans nobis omnia condonavit Ingrate fraudato ac perfide divina te voce convenio Ecce annus jam finitus est redde Domino pluenti mercedem c. Iu a harvest Serm de temp 219. Tom. 10. p. 370. that Father spake fully enough and to this point to his Africans but I keep my promise and home Wise prudent valiant successfull and exceeding pious King Alfred required 2 Spelm Concil p. 360. Thine Tything portion give thou to God and 3 Id. p 377. in his League with the Danes calls them Dei Rectitudines and his father before him wrote his Catholick Donation 4 Id. p. 349. at the Altar offered it there as to whom and not having to do with an Eorl or Earderman or any upon earth Man-receiver The Councel at 5 Id. p. 517. c. 10. Enham called them Jura Deo debita King Knout in his 6 Id. p 544. Laws Quot annis quisque Deo debita Jura justasque redditiones ritè persolvito Let every one pay yearly to God his due Rights and King 7 Id p. 531. Ethelred before Nemo auferat Deo quod ad Deum pertinet praedecessores nostri concesserunt Let no man take from God what belongs to God and which our Ancestours gave What was in King Edwards Law we had but now which how much the Common Law remember also and the following confirmations of that Law as many as were involving this also and to omit what might be gathered from our Provincials in Lindwood and the Decrees at large step at once to Henry 8. where 8 27 H. 8. c. 20. the Parliament complains to the King for remedy that Numbers of ill-disposed persons having no respect of their Duty to Almighty God but against Right and good Conscience did with-hold their Tythes Due to God and holy Church c. They were then reputed and in Parliament Language so to belong and lastly in the commonly reputed common Law Bract. and Fleta are not wanting No one can but account these things and even in their account a part of the sacred Revenue and then 1 Lib. 3. cap. 1. Sect 3 Res verò sacrae relligiosae sancte in nullius bonis sunt Quod enim dâ—vim Iuris est id in nullius hominis bonis est imò in bonis Dei hominum censura Braction lib. 1. cap. 12. Sect. 8. f. 8. vid. ff deâ—erum divisione l. â— Sect. 2. Inst l. 2. tit 1. Sect. nullius Sacrae res sunt quae ritè per Pontifices Deo consecratae sunt veluti aedes sacrae Donatia quae ritè ad Ministerium Dei dâ—d â—ata sunt Qâ—ae et am pernestram constitutionem alienari oblicari prohibuimus excepta caula redemptions captivorum 16 Sect seqâ— sayes Fleta Extra patrimoniuÌ„ sunt Res sacrae c. beyond mans Right or reach neither are they to be transposed for that reason for 2 Item donari non po erit res quae possiderinâ—n potest sicut res sacra vel religiosa vel quasi c. Hujusmodi verò res sacrae à nullo dari possant nec possideri quia in nullius bonis sunt id est in bonis alicujus personae singularis sed tantum in bonis Dei vel bonis fisci Bract lib. 2. cap. 5. Sect. 7. f. 14. no man has them they are a part of Gods Inventory sayes Bracton They 3 A Rectory or Parsonage is a Spiritual Living composed of Land Tythe and other Oblations of the People separate or dedicate unto God in any Congregation for the service of his Church there and for the maintenance of the Governour or Minister thereof c. So three eâ—ual integral parts sc Glebe Tythe c. Spelman de non temerand Eccl. Sect. 1. and the Glebe are questionless as to this all of a nature their property use possession intention devotion application and jurisdiction the same and for what Land is given 4 Bracton lib. 2. cap. 35. Sect. 4. f. 78. So Fleta l. 3. c. 16. Sect. 13. p. 205. Videtur verum est