Apology of Henry Airay, Part 2
FOR THE FARTHER CLEAring and inlarging of some passages in the preceeding APOLOGETIQVE, a worthy and iudicious friend (for testimonie to the truth, and of his louelove to the memory of the deceased,) hath beene pleased to annex AN ATTESTATION.
I being from the beginning of Do. Airy his intermedling in this suit, & before, acquainted with and of Councell in this cause, and question, could not but afford to this narration apologetical, the affixing of these points, partly of attestation, and partly of addition, viz: That before that reuerend man was either Provost of Queens College, or Parson of that Church: Mr Shepheard then Incumbent and immediate successor (as I take it) of Scot the vnhappy and vngracious Lessor, made Entry into and clayme of the Gleebe-land to the said Church pertayning or some part thereof. Herevpon a Bill was exhibited against him in the Chauncery by Izod alias Shillingford (if I mistake not his name) being the first Lessee or his Executor. Shepheard herevpon came to me requesting me to bee of Councell with him and to draw his Answere, which I did: But so poore he was that after the taking out the Coppy of the Bill & paying his Atturneyes fee, his purse was empty and therefore I was of Councell with him in Franckalmoigne. After this he came to me in the Countrey requesting me to moue the said Colledge being then Patrons to assist him with their purse to bring the said Lease to trial, telling me that he had Mr Plowd…ns opinion for the auoyding thereof: I did accordingly moue Mr Doctor Robinson then Prouost, to that purpose: but the Answere that I receiued was, that if he would resigne or when the Church should become void, the Colledge (presenting an able Preacher) would be at Cost in the suite: but not for him, who was eyther Potentia or actu no preacher, or to this effect in substance: it being hard to relate phrases and syllables twentie yeares after, for so long I take it to be. Thus Mr Shepheard hauing but 30 poundes per annū bare rent for him his wife & Children was glad to sit Downe and let the Title of the Lease rest for want of ability to proceed in suit. After this the said Lease (in parte at least (viz: for one or two *Morecor & Fencot to my remēbrance.villages within the parish) was offered to be sold to Mr Temple then of Water Eaton, now Sr Thomas Temple, who wanting provision of Come to his house as it seemed was willing to hauehave bought it, lying not far from him. But vponupon inquiry finding the validity of it to bee vnderunder question refused to deale therewith. Mr Alcocke finding it not currant in the Countrey, after gat money vponupon it in London viz: of one Mr White the sume of 500 pounds vt dicitur, and this was as I take it immediatly vponupon Shepheard his Death or in his last sicknes. After the Death of Shepheard Mr Doctor Airay being instituted and inducted into the said Church, before any suite by him cōmenced for auoyding the said Lease, The said Alcocke exhibited his Bill against Doct. Airay as knowing the time was come for bringing the validity of the saide lease into question according to the intention and purpose of the said Colledge long before published & discouered. Therefore he now sought reliefe in equity as doubting himselfe his strength in law. Doctor Airay on the other side aduised in my presēce both touching the point in lawe, and touching equity with two ordinarily comming that Circuit and others, men of as great note for learning and Iudgement in the lawe, as any of their tyme. Their Iudgement was▪ both that (the Lease was voyd in law, and that it being of a Benefice▪ with Cure of soules, Chauncery nor equity would neuer vphold it. Suite was therefore hereupon commenced at the common lawe, and vponupon reference before it came into the King… Bench, Sr Thomas Flemming (either when he was Lo. chiefe Baron or chiefe Iustice of the Kings Bench) and Mr Iustice Wal…iester▪ certified vnderunder their hands the same opinion in Lawe touching the invalidity of the Lease. In the Kings Bench, Mr Iustice Dotheridge, who had bin of▪ Alcocks Councell in the Exchequer, and there argued for him, yet as a Iudge in the Kings Bench, gaue his opinion against the lease (viz: that it was of no validity:) Adding, that it was▪ as like to Merton Colledge case, (wherein the Lease though not as this of a Benefice was adiudged voyd) as one egge to another. These things thus being, can any blame Do: Airay for thinking the Lease not good in law? How and where should he attayne to greater knowledge of the law then these Counsellors of great reputation, nay then these three Iudges? but it will be said, (and indeed must be, by those that will censure him as faulty here. about) that although the lease were, or at least were iustly to be thought, voyd in law yet it was against conscience to seeke toavoyd or ouerthrow it. VponUpon this I must demur, For this then wilbe the Case: A leafe is at this day made by a Parson, & confirmed by Patron & ordinary, which yet by the law is not of force nor validity: But whether the Successor of this Parson be not tyed by Conscience to admit this to hold as a good lease, By the statutes 13. Eliz.though in law not good, must be the Question. A straunge question, such as would make paper blush to beare as a question, were it capable of blushing. For since the voyce of Conscience is lowde and playne against the making of such leases, is it possible she should dissemble and whisper in corners for the vpholding and supporting of them? Certainly, this voyce if any such bee is but of fals… nominata Conscientia, as St Paul speaks of Scientia. And to find out whether it so be or not let vsus consider of the institution of Benefices, & the end of the endowment of Churches with Liuings, and this is declared by the statute. 3. R. 2. Cap. 3. to be; That the Benefices thus endowed, should be giuen to honest and convenient persons, for the seruing and honouring of God diligently, the keeping of hospitality, the informing and teaching of the people and the doing of other noble things pertayning to the care of soules. This is the Iudgement of the wisedome of the Land viz: of the King, the Lords spirituall and temporall, and the Commons. And can then Conscience speake beyond law for the Diuersion and alienation of these liuings from those publique and pious vses yea from their originall Institution to supply a priuate Kitchin? Let vsus in this also heate the voyce and Iudgement of the whole Realme (and turpis est pars quae cum suo toto non conuenit.) In the raigne of K. H. the 8. Ao 32. Cap▪ 28. A lawe was made to make good and firme all Leases for reasonable Terme viz: not aboue xxj yeares or three liues of lands vsually letten made by any, seised in their owne rights (though in Tayle) or in the right of their wiues or of their Churches so as the old & accustomed rent were reserued. And what then for Leases by Parsons and Vicars who are seised in right of there Churches? The whole Realme thought fit these should be excepted and not bee made good, though thus for a reasonable terme as by the Statute appeares. But it may be said that yet a Parson with Assent or Confirmation of Patron and Ordinary might make a lease for any long terme. True, by the permission of the Common lawe, the whole trust being reposed in these three to preserue the Churches rights and possessions, and so also might the whole inheritance be aliened if they three all concurred. But this was neuer approved by Parliament: but contrariwise as knowledge and piety more increased, so was it more restrayned and suppressed. Therefore Ao 13 Elizab. which was shortly after the Date of Scots lease, were two Actes made, the one against long Leases by Colledges and all having spirituall liuings branding them with this note, first that they were vnreasonable. 2. that they were the Cause of Dilapidations. 3. That they were the Decay of spirituall liuings and Hospitals. 4. That they were the vtter impouerishing of all Successors Incumbents of the same. And therefore it was enacted Cap. 10. That no lease of such or like liuings other then for xxj yeares or three liues howsoeuer or by how many soeuer confirmed should be good or of force. And least yet Parsons and Vicars might with Confirmation of Patrons and Ordinaries preiudice the Church so long as. … xxj yeares, It was enacted Cap. … Lease by such should be good or of force longer then the Lessor should continue resident, without absence, aboue 80 dayes. So as by Death of Lessor (if not sooner) it must fall to ground, (no hurt being that each, for his owne tyme of life and residence, might by lease, for the better applying of his study, free himselfe from husbandring his Gleeb, or collecting his Tithes.) And this Law in the preface expresseth this Cause of that Provision (viz:) that the Liuings appointed for ecclesiasticall Ministers, may not by corrupt and indirect dealings be transferred to other vses. So that this making of Leases is termed and iudged a Transferring from the originall Institution, and that Transferring is by the Iudgement of the Realme a corrupt and indirect dealing. And in truth this Leasing is as much in effect or hath as much euill in it as an Impropriation for the time, & the time in our case being aboue 80 yeares, is of no smal length. What then if in some Cases, arte and ingeni…, as one Statute speakes, a practise hauehave beene to doe this eiull eyther by long lease or Impropriation; but Digitus Dei being in it hath made this wicked act to hauehave a gappe or flaw left, and to fayle in some circumstance materiall to giuegive it force in. Law. Must the Conscience of the succeeding Incumbent helpe to make vp this gappe by confirming or affirming it to be of force and strength and so admitting it when lawe hath giuen it no such strength? What is this but vltimam manum apponere to approue & partake in the wicked acte of the Predecessor: to see a sacrilegious person, and as the Psalme speaks of a thiefe to runne with him to helpe to perfect his theft, and locke vp the doore of Restitution, which the Law had set or left open? Nay, what is it but to make Conscience opposite to, & to giuegive ayd and assistance against the end and Institution of Benefices, viz: the diligent seruing and honouring of God, keeping of Hospitality, the reaching of the people, and doing other noble things appertayning to Cure of Soules as that Statute. 3. R. 2. speaks: nay, to be helpful to that which is vnreasonable, a cause of dilapidations, and decay of spirituall liuings, yea a corrupt and indirect transferring of them to forraigne vses, as we heard the Statute. 13. Eliz▪ speake; yea an exposing of the people to the seducement of Iesuits & priests, & to their recōciling of thē to the Sea of Rōe absoluing & dischardging of them from all obedience duty and Allegiance towards their Soueraigne, and so preparing them for vnnaturall and daungerous rebellion, which the same Statute cap. 2. declares to be the effect and Consequence of the want of good Instructiō occasioned by the diversion of the pastorall maintenāce. Now if any wil make conscience so vnconscionable as to play this part he deserues, mōstrari et dicier his est, euē to be poiuted & wondred at. Yet let none wilfully mistake or peruert my words: I say not that Conscience should goe so farre as to pull Downe and ouerthrow such leases if they hauehave their full strength force and perfection by law: Factum valet quod fieri non debuit. In such case only perhaps an act of Parliament may iustly demolish this lewd edifice and building. But I say where the Lawe vpholds it not, suppose only a Deed written signed & sealed but wanting Deliuery, or confirmed by Ordinary & not by Patron, or by Patron & he within age, or the Patronage entayled, or bee it otherwise Defectiue, Conscience I say rightly guided must reioyce that the Lawe hath not giuen it full strength, and not either belye the Lawe that it doth make it good where it doth not, or supply that strength to it which it wanteth in lawe. Herein therefore no blame can be fastened vponupon that worthy man viz: that he brought this euill contriuance of a Diuersion from good & holy Institution, to the Ballance or Standerd for triall. And Mr Iustice Crooke Deliuering his opinion in lawe for the Lease so expressed his cōscience, that it was pitty if it could not be avoyded by the Rules of lawe, being so ill and so vngodly an acte. If any shall say that it being assigned ouer to a Purchaser must turne the winde and make conscience goe on the Leases side, hee is much deceiued; For then eueryevery such vnconscionable lease whereby as in our Case euen house as well as Liuing shall be alienate from the Parson, and he be turned to an Alehouse for his food and lodging, made one Day to A and the next Day assigned to B (nay perhaps made to A for that purpose to bee assigned to B) should make Conscience turne as easily as the wind. It is a rule of law in such Cases caueat Emptor, nam nouisse debuit se imemere alienum, and againe, Quod in initio non valuit, tractu temporis non valebit. Nay it is a rule both of Reason and Religion, Melius vt pereat vnus quam vnitas. The bodily Death or Destruction is not to be valued with that of the Soule, as was taught by the best Master that euer was, much lesse must the corporall Provision of or for one person or family ouerweigh and supervalue the spirituall provision for many persons, many Familyes divers Townes and Villages, nay the Kingdomes safety. If any obiect the validity in Law of this Lease, they returne to the first point and blame him for not foreknowing what Iudges would resolue better then his Councell, which to doe is (absit indignatio verbo) very absurd. For suppose the Vniversity, by their Councels advice, try in law a Contriuance of a Recusant, to defeate them of an Advowson, or Presentation to the Church, and that the Iudges should not in some Case conceiue the Statute. 3. Iacobi, to reach so far, or be taken so liberally as their Councell (being of great ability) thought: it rending to so good a purpose for the Churches good: shall the Vniuersity be blamed for bringing the Case to triall in Law? Absit. Besides that as many Iudges hauehave (as appeares by the premisses) beene in law against the Lease made by Scot, as for it. It would take vp a great deale of labor and paper to set downe the many Leases and Conueyances which by severall Iudgements hauehave beene auoided vponupon Mishaming; yet in this Case that was not properly the point, but the Colledge only confirmed as Patron, where the Patronage was in others. To helpe this, it was alleadged, that by a wrongfull presentation the Colledge had gayned the Inheritance of the Patronage as by vsurpation. And to auoyd that, this misnaming was stood vponupon chiefly in this wrongfull presentatiō. Nay a case is in one of our late Bookes printed, of a lease made 2. Ed. 6. of a Parsonage Cooke lib. 1. fol. 153 the Rector of Chedingtons Case Mich. 40 & 41 Eliz.Com: Buck. confirmed by Patron and Ordinary, and yet (after it had beene enioyed aboue 50 yeares,) auoyded by Iudgement & euicted from the sixt or more remote purchasers (without any reliefe in equity,) I will not say vponupon a nicer point then was this in our Case, but surely to mine eye & apprehension lesse discernable. Thus it is evident that iustly no scandal nor Imputatiō can for this matter be cast on this reuerend man. And otherwise he was doubtlesse one of those, of whom: St Paul sayth, Tales in pretio habete, a true Labourer in Gods haruest, one that sought not himselfe, nor great things for himselfe. Let vsus therfore honour the memory of such, & feare that woe denounced against them that call euill good, and good euill.
T. W.
FINIS.
End of the text · Henry Airay, Apology of Henry Airay (1621)