The Civil Right of Tithes, Ecclesiastical tract · Chapter 1

The Civil Right of Tithes · Ecclesiastical tract · Chapter 1

p. 9CHAP. I.

Propoſition I.

BY the Law of Nature all things are11Nec h… quidem ſecundum Naturam (ſaith S Ambroſe, ſpeaking of the Philoſophers opinion of the form of Iuſtice, (ſc.) to uſe what is common as common; private as private:) Natura enim omnia omnibus in commune profudit: Sic enim Deus generari juſsit omnia, ut paſtus omnibus communis eſſet, & terra foret omnium quaedam comm…is poſſeſsie. Natura igitur jus commune generavit, uſurpatio jus fecit privatum. de Offic. lib. 1. cap. 28. tom 4. page …1. And, upon this ground, it ſeemes Aquinas thought it not unlawfull to re-enter the incloſure in caſe of a a poore mans extream neceſſity, there having been a kinde of tacite condition at the beginning, that the fences ſhould hold but till there were a neceſſity of (in part) removing them. So by that occaſion All things return again to All men. 22▪ Quaeſt. 66 Art. 7. Vtrùm liceat furari propter neceſsitatem? And much to the ſame purpoſe the more ſolide Hug… Grot. de jure Belli & Pacis, lib. 2. cap. 5. Sect. 6. And Bellarmine: Quò aduſum neceſſarium ſunt omnia communia poſitivè, ità ut per nullum aliud jus poſsit quicunque homo prohib…ri, quò minùs viva… de rebus à Deo creatu. Atque hinc eſt quod in articulo neceſsitatis non dicitur, neque eſt fur, qui ex quocunque loco accipit unde vivat. de Bonis Operibus in part. lib. 3. cap. 11. Reſponſ. ult. common. No propriety aſcertained or cut out to any, but all left as made in a common heap for the common uſe of all men: As beaſts come to the water and drink, but ask no leave; or as22Vno in loco non diu commorantur, rati gravem eſſe infelici…atem diu in eodem loco haerere. Ortel. Geog. Tab 47. & vide Magir. Geogr. p. 223. & Heylin. Microcoſm p. 659. the Hoords of Tartary which depaſture and ſtay here and there ſo long as their ſafety or entertainment like them; or, laſtly, as ſome ſimple Indians, who not knowing the craft of appropriations, think themſelves rich enough, in that every man hath every thing: p. 10So man, in puris naturalibus (looking33Natura dedit …nicuique jus in omnia, h. c. in ſtatu merè naturali, ſive anteq…am homines ullu pactis ſeſe invicem obſtrinxiſſent, unicuique licebat facere quaecunque, & in quoſc…nque licebat, & poſsidere, uti, frui omnibus q…ae volebat & poterat. T. Hobb de Cive, c 1. Sect 10 beyond coalition into ſocieties, and notwithſtanding any divine law, which approves indeed (à poſteriori) partitions made out, and ſtrengthens them) at firſt, and as God and Nature left him, is Maſter of Nothing; but was to take what he had need of, and leave the reſt, (a very Coenobite) and Another had as much right as He, and He no more right then Another, but He with them, and they with Him, were together to enjoy the Bleſſings of God in Common.

Non Domus ulla fores habuit, non fixus in agris

Qui regeret certis finibus arva lapis,

as the11Tib. El. 1. 3. Poet ſpake, with openneſſe and community enough,

Nè ſignare quidem aut partiri limite campum

Fas erat, in medium quaerebant, &c.

ſo22Virg. Georg. 2 which yet Lactantius interprets onelyonly of an open Bounty; having no more of ſtrict import then that of another. Flumina jam lact…s, jam flumina nect…ris ibant. l. 5. de Iuſtitia cap 5. pag …72 another: and the grave33In Octar. Act 2.Acts 2 Seneca,

—Pervium cunctis iter,

Communis uſus omnium rerum fuit.

And again, and ſtill ſmiling upon the Free and44Erant in Saturn… avo omnia communia & indiviſa omnibus, veluti unum cunctu patrimonium …ſtet. Iuſtin 43. unde in Saturnalibus Bonorum communie. Golden Age,

—Nullus in Campo ſacer

Diviſit agros arbiter populis lapis.

55Ovid Met. lib. 1.But by after acts came in Mine and Thine,

Communémque priùs, ceu lumina Solis & Aurae,

Cautus humum longo ſignavit limite Menſor:

as the66Sunt autem privata nulla Naturâ; ſed aut ve…i …c…upatione, ut qui nondum in vacua v…n…rum; aut victoriâ, ut qui bello potiti ſunt; aut l…g…, condition…, paction…, ſorte; ex que ſit ut ag…r Arpinas Arpinatum, Tuſculanus Tuſcullanorum: ſimiliſque eſt privatarum poſſeſsionum deſcriptio▪ Cicero de Offic. lib. 1. Orator tells us accordingly, That nothing is by Nature incloſed to ſuch or ſuch a one in ſeverall, but either by firſt ſeiſure, as thoſe that entred upon what was no ones; or by Conqueſt, as what the Souldier got; or by Law, Agreement, Com-promiſe, Lot, &c. and ſo is ſuch a Field ſuch a Mans, or ſuch a Farailies.77Apologet. Sect. 39. pag. 35. Tertullian obſerved of his time, Omnia apud nos indiſcreta ſunt praeter uxeres, Every one had his wife to himſelf, but nothing elſe: (It were well if our charity or goodneſſe would enable or permit us approach to ſo great happineſſe;) and of the new freſh inſpired Chriſtians 'tis written, No one ſaid, that Any of the things p. 11he poſſeſſed was his owne, but they had all things Common, Acts 4. 34. and (yet wanted no one any thing, for) as many as had Lands or Poſſeſſions, ſold and brought to the Apoſtles in bank, and diſtribution was made to each (in charity or equity) as he needed.

No more then this doe God or Nature intitle any to by name & ſingularly: Let great Poſſeſſors look to themſelvs, and make much of after inducements (which alone have lifted up their Lordſhips above the level;) and preſerv them, & endevor to keep them whole, and as well the whole as any part: For if the Bank be cut anywhere, the Floud may finde way thereby to run over all; if there be but a beginning to remove the bounds and lay open the fences that have ſevered Dominions anywhere, what is begun may proceed unluckily; and what has been done by any Men, may hap to be revoked as concerning themſelves, and then poor Codrus is as rich as Craeſus, and A. B. as great as any of the greateſt.

But to proceed: Say I theſe things as a man only? foreign, private and fallible? Says not the Law the ſame alſo? Ask either of the three ſiſter Queens; the Canon, Civill, and our Common Laws have ſhared in Government, ſome way or other of moſt part of the Chriſtian world; and doe not they ſpeak home or homeward this way?

The Canon firſt, a22See Sir Th… mas Ridleys view of the Lawes, par. 1. cap. 5. Sect. 1. pa. 73. wiſe piece, and a competent knowledge whereof doth with us half create a Doctorſhip: And ſet aſide where it ſuperſtitiouſly directs about things not needfull, or lightly takes in the Errours of dark times, or politikely advances the Pope to an33Vid. Cauſ. 9. qu. 3. Ca. 117. Totius enim orbis Papa tenet principatum. Gloſſ. partibus ad Decret. lib. 3 tit 16. Nec eſt qui audeat dicere, D… mine, …ur ita facis? gloſſ. continetur, ad Extrav Io. tit. 4. cap. 2. univerſall indirect 44Vid. Extravag. de major. & obed. cap. 2. in fin. & gloſſ. porrò ſubeſſe. ibid.perhaps direct) Dominion, or blaſphemouſly tantùm non, advances him to an immenſe ſoveraignty; Dominus Deus noſter Papa, is ſaid to be in the extravagants: In other ſerious and ſober pieces of much gravity and great uſe, and thought by many to ſerve very commendably toward the end it pretends to aym at; the well regulating and ordering divers emergent caſes that may ariſe and become doubtfull in the Catholike Church. See then there not far from the beginning, p. 12where we have, that**Differt autem Ius naturale à …nſuetudine & Conſtitutione: Nam Iure naturali, Omnia ſunt communia omnibus; quod non ſolum inter eos ſèrvatum creditur de quibus legitur, multitudinis autem Credentium erat cor unum & anima una, &c. verum etiam praecedente tempore â Philoſophu traditū invenitur. Vnde apud Platonem illa civitas iuſtiſsimè ordinata traditur, in qua quiſ que proprios neſ it affectus: Iure verò conſuetudinis vel conſtitutionis, hoc meum eſt, illud alterius. Vnde Aug. Tract 6. in Ioan. Quo jure defendis villas Eccleſiae? & Dec. 1. diſt. 8. The place is in Aug. tom. 9. p. 25. The Law naturall differeth from Cuſtome and (ſuper-induced) conſtitution; for by nature All things are common to All, which was not only obſerved of thoſe Act. 4. but formerly among the Philoſophers: Whence Plato counts that City beſt governed where none covets property to himſelfe: But by the Law of uſage or agreement, This is mine, That anothers. And Gratian proves it by a place of Auguſtine, Jure Divino, omnia ſunt communia omnibus, (Jure conſtitutionis, Hoc meum, illud alterius, is the title of that proofe,) who ſpeaking to thoſe that thought themſelves wronged by deprivation for Hereſy, He askes: By what right they had their livings? of God, or Man? The one is in Scripture, the other in royall Lawes: Now whence, ſaith he, are (your) Poſſeſſions, but by the laſt? for by the11Ex hoc videtur quod tantum j ure humane aliqua poſsideantur, …r non divine. With anſwer to an objection. Vid. Gloſſ. num Iure Divino. 16. firſt, (The Earth is the Lords, and the fulneſſe thereof:) He made rich and poore alike, and preſerves them alike: But by mans Law we ſay, This is my Farme, this is my Houſe, this is my22Manebat antequam vinum inveniretur, omnibus inconcuſſa libertas: Nemo ſciebat a conſorte natura ſuae obſequia ſervituris exigere. Non eſſet hodie ſervitus, ſi ebrietas non fuiſſet. As if a drunken miſchance were the parent of this laſting inconvenience. Dist. 35. Sect. 14. c. Sexto die. Sect. Manebat. Servant. And why are humane Laws the Emperours? Becauſe by them God diſtributes their own to the people. Where the gloſſe is full, That Poſſeſſions are only founded in humane Lawes. And the Text againe, Take away Imperiall Conſtitutions, and who can ſay, This is my Houſe, this is my Slave, this is my Living, &c: and to the Emperours Laws forbidding Poſſeſſion to Non-conformiſts, ſome anſwering, what have we to do with Emperours? Nay, and what have you to do with Poſſeſſions? Replyes that Father, Quickly; for Poſſeſſions are by Theſe: whom if yee renounce, your poſſeſſions are therein involved. This is full; ſomewhat dark is that before of33Dist. 1. c. Ius naturale. Communis omnium poſſeſſio: And before that, the44Gloſſ. Al. ad c. 1. …maes Leges. gloſſe makes a doubt upon the ſpeech of invading anothers, Nonne Jure naturali omnia ſunt Communia? How this? Is any thing anothers? And anſwers, True: as things are Now. Whereupon the note on the gloſſe; Omnia ſunt 55And though Dominion be by Nature, at large, that all is mans: yet the diſtinction or partition of Dominions, that ſuch or ſuch things ſhould belong to ſuch or ſuch a man, is from uſe or introduced civil compacts. Gloſs. p…rrò ſub…ſſe. Extrav. 1. de Maior. & Obed. c. 1. in fin.communia Jure Naturali: as plaine as can be.

p. 13This may be enough for one piece, pretending it ſelf to be a neceſſary ſupplementall additament to the Law Chriſtian, or drawing out the general rules thereof in particular expedients (as ſeverall caſes require) for governing the Chriſtian world: Next what ſayes Juſtinian? He chiefly inſiſts on one branch, indeed the matter of ſuperinduced ſervitude, yet ſo as the length of his reaſon duely extended, will ſerve alſo well enough to hem in all other Dominion. In each part of his Compoſitions he hath ſomewhat tending this way. In his Inſtitutions firſt, where ſervitude (he66Lib. 1. tit. 3. ſect. 2. vide etiam Ariſt. Polit lib 1. cp. 3. ſayes) is a Conſtitution of the Law of Nations, whereby, againſt nature, men are ſubject to the commands of others: (the very Syllables of77F. de ſtatu hominum. L. libertas. And, Quod attinet ad jus civile, ſervi pro nullis habentur: non tamen & jure naturali: quia quod ad ju… naturale attinet omnes homines aequales ſunt. De diverſis reg. Iur. aut l. 32 Florentinus in the Pandects before) contra Naturam, id eſt, contra Jus naturale, cùm eo jure omnes homines liberi ſunt, ſayes the Gloſſer there: (for by Nature all are free) from divers Autorities. Nor are they impertinent: for in the next88Quae res (manumiſſio) à jure gentium originem ſumpſit: utpotè cum jure naturali omnes homines liberi naſcerentur: nec eſſet nota manumiſſio, cùm ſervitus eſſet incognita: ſed poſtquam jure gentium ſervitus invaſit, ſecutum eſt beneficium Manumiſſionis. Et cum uno communi nomine omnes homines appellarentur, jure gentium tria hominum genera eſſe coeperunt; Liberi, & his contrarium, Servi, & tertium genus, Libertini, qui deſierunt eſſe Servi. Inſtit lib. eodem tit 5. title but one, ſpeaking of Manumiſſing, This freeing from power (ſaith he) derived it ſelf (onelyonly) from the Law of Nations, or agreement: for by the Law of Nature all men were born free, neither was releaſing known, ſith there was no ſuch thing as Bondage. But after that by the Law of Nations this Bondage was brought in, then came there alſo along therewith poſſibility of Freeing. So now of one ſort of men at firſt. there were thus made three; Servants, Born, and made free-men: (the very Syllables11F. de Iuſtitia & Iur…. L Manumiſsiones. of Ʋlpian in the Pandects again.) And tit. 8. de his qui ſui vel alieni juris ſunt: Servants are in the power of their Maſters, which 22Inſtit. 1. tit. 8. Sect. 1.power is of the Law of Nations: And33Inſtit eod. tit. …. Sect. 3. & vid. F. de condict. indeb. L. Si id quod. before, Captivity and Slavery are contrary to the Law of Nature; for by this Law all were free from the beginning: And this continued alſo to the Novels: For in that ſupplementall addition to all former proviſions of Code, Pandects, and Inſtitutions, The Law of Legitimation there tells us, that44Natura ſervum & liberum non diſcrevit, ſed liberam hominis fecit prolem: and a little after; Ne que enim a principio, quando natura ſola fanciebat, hominis (antequam ſcriptae provenirent leges) fuit quaedam differentia naturalis, at que legitimi, ſed antiquis parentibus antiqui filii mox ut procedebant, fiebant legitimi. Et ſicut in liberis natura quidem liberos fecit omnes, Bella vero ſervitutem adinvenerunt: ſic etiam hinc natura quidem legitimas produxit ſoboles, attamen ad concupiſcentìam diverſio naturalis e…s im miſcuit, Novell. 74. cap. 1. Nature made p. 14all children free at firſt, it was war brought in Bondage: Even ſo by Birth a…l were ſons, and one as another at firſt, after-proviſions made diſtinctions. And endeavouring ſoon after to collect and binde together all former reſolutions on this great ſubject to be repreſented in our view, he both55Natura ſiquid… ab initio dum fi…orum procreationes ſanciret, ſcripſis nondum poſitis legibus, omnes ſimiliter quidem liberos, ſimiliter autem produxit ingenuos. Primo nam que parentibus primi filii, ſimiliter autem legitimi à natura …iebant: bella vero & lites atque libidines & con cupiſcentiae cauſam depoſuerunt ad aliud ſchema; ſerv tutem namque invenit bellum, Naturales autem caſtitatis caſus, &c. Novell. 89. cap. 1. repeats this Aſſertion66lb. cap. 9. & before. Liceat igitur (ſicut praediximus) patri ſi legitimam non habeat ſobolem, filios reſtituere naturae, & antiquae ingenuitati. Novel. 74. cap 1. &, offerre Imperatori precem, hoc ipſum dicentem, quia vult Naturales ſuos filios reſtituere naturae & antiquae ingenuitati, & legitimorum juri. cap. 2., and Phraſes, to Liberty, to be a reſtoring to Nature. Now that what is thus diſperſed of freedom and ſervitude onelyonly, may be enlarged by like reaſon to all Community and reſtraint, we are beholding to the Gloſſe on 77Bella, captivitates, ſervi…utes, poſtliminia, manumiſſiones, ut ſacroſancti fint hoſtium legati, Regna, Dominia, Obligationes, Acceptilationes, Conſtitutiones, ſunt juris Gentium. Gloſſ. 13. Bella.Inſtit. 1. tit. 2. which ſtretches out one place, as all other may, thus. Wars and ſervitude are contrary to the Law of Nature, ſaid the text; and what is meant by Wars? Manumiſſion, Reſtitution, Rule, Dominion, and ſuch other things, ſayes Cujacius on the place: And upon the other of tit. 3. §. 2. Slavery is by the Law of Nations88Gloſſ. Conſtitutio juris Gentium, a., therefore (he inferrs) Domination is from the ſame; and therefore, ſay I again, not from Nature. Wherein the text alſo ſeems to bear him out (and me;) for thus99Ex hoc jure gentium introducta Bella, diſcretae Gentes, Regna condita, Dominia diſtincta, agris termini poſiti, aedificia collata, commercium, emptiones, venditiones▪ locationes, conductiones, obligationes inſtitut…: exceptis quibuſdam quae à jure civili introductae ſunt. F. de Iuſtitia & Iure, L. 5 Nam Dominia rerum ſunt de Iure Gentium, and that Text alledged for it. Gloſ. generali Iuri▪ ad Cod. 1. tit. 22. l. Omnes cujuſcu…que. Hermogenian in the Pandects. By this Law of Nations (whereby Manumiſſions were poſſible, as before) were Wars brought in alſo, Provinces diſtinguiſhed, Kingdoms erected, Dominions ſetled, Fields encloſed, and many ſuch ſuperinducements, which Nature in her Dictates never acquainted with: the good wiſedom of Man having found them out for quiet of ſocieties, and the great goodneſs of God and religion approving theſe humane inventions.

Yet farther, and from the ſame Volumns it is obſervable, that of that firſt univerſall freedom, ſome foot-ſteps are by the ſame Emperour allowed to remaine yet not cleane wiped p. 15out, and of that naturall liberty of things, never yet brought within the bondage of any acceſſary reſtraint, ſome evident both ſigns and inſtances: For,11Inſtit. 2 de rerum diviſione in Princ. & F. de diviſione rerum. l. 2, 3, 4, 5. Quaedam naturali jure ſunt communia omnium, (yet in deſpite of any offered incloſure) quaedam publica (id eſt,) popiclica, ſc. omnium populorum, as the gloſſe) quadam univerſitatis, quaedam nullius, quaedam ſingulorum, ſo and no more. And hee gives inſtance in Ayr, water, Sea, Shore: who has endeavored to22Vnderſtand, in the Empire: for ſome kinde of appropriations of ſome of them has been with us made to the King, as ſhall be ſaid. incloſe and appropriate theſe, or not given to every man to make uſe of their bounty, as his occaſions ſhould bring him to need them? The River to row, the Haven to entertaine, the Bank to Land, Theaters, Temples &c. Hee might have added alſo High-wayes, which have never yet caſt off their openneſſe of former freedom, or come within the bonds of my private reſtraints; but in all Grants been ſtill reſerved and retaine to themſelves yet what they were at firſt, and are, and ought to be, viae publicae, without any allowed reſtaint, and for every mans uſe that can uſe them Crafty appropriations have or can no more hedge in theſe and ſome other gifts of God and Nature, (or God by nature) then the rich can impale to their own uſe the Sunbeames, or cauſe the ſame light not to ſhine to their poore Neighbours comfort, as well as their own, or the inriching raine to fall upon Their own Land, and leave the poore mans barren.

Thus the current of Juſtinians works: That wiſe Law that kept the World in awe, durſt never, never did declare againſt all Community. Plainely it ſpeaks things left at firſt Common, Servitude is by after-inducement; Property as Servitude, and no ſuch univerſall reſtraint yet; but ſome things remaine as free as the Wood for the Bird to come and ſing on what branch ſhe pleaſes, or as the Sun-beames for which the poore man payes no rent, or dreads no quarter day; or like the Fountaine to the wearyed Paſſenger, hee may drink what he will, and leave the reſt, and no one queſtions, interupts or moleſts him.

Come we now nearer home; and what ſaid here our Doctor Bracton? he was a great Civilian; and ſome ſay not p. 16only ſo, but ſuch, a Doctor of the Civill Law, to bring home (as he has) and mixe many of the Effata of that more Civill Rule with our barbarous Cuſtomes. 'Tis true, he makes often uſe of the Code and Pandects; and that which is more, many of his Rules are borrowed verbatim from them, and ſo does his Follower, and in moſt tranſcriber Fleta alſo; though I wil not enter much diſpute of their Doctorſhips. They are to us a kinde of11Scriptores hujuſmodi apud nos, (as theſe, Thornton, Britton, &c.) inter eos quorum doctrina pro ornamentis tantum orationis, in diſputationibus juris noſtri forenſibus ſcholaſticiſque eſſe▪ poſſiut, nec authoritatem in ſe ferant, vulgò cenſeri ſolent; ídque non ſine authoribus magnis. Quod meâ ſententiâ (tantorum virorum pace dictum fit) non citra errorem ex incogitantia ingentem ortum propagatumque. Tametſi enim ob vetuſtatem ac intervenientes quae inſequutae ſunt juris mutationes admodum multiplices; authoritatem in quamplurimis jam non praeſtent ejuſmodi quae deciſionibus, Iudiciis Conſultationibuſve per ſe ſolùm ſufficiat, innumera nihilominùs continent, quae aut etiamnum manent integra nec omninò abrogata, (ut in materie maximè feudali, criminali, &c) aut quae mores majorum legeſque avitas mutationibus ejuſmodi priores copiofius oſtendunt. At que ita certètam authoritatem è qua Iuris interpretatio pendeat eos habere manifeſtò in diſputationibus forenſibus ſcholaſticiſ que eſt agnoſcendum quam Ornamento eſſe. Selden. Diſſect. ad Flet▪ cap 1. Sect. 3. p. 454. Oracles, and borrowing their Inſpirations from where before (wherein they were at leaſt well ſtudyed, if not graduated,) wee are not to wonder if they wrote much the hand of that Copy according to which we ſee they did practice to write. The former firſt in very perfect imitation, inſtances chiefly, as Juſtinian did, in ſuperinduced ſervitude, which22De Rerum diviſione. lib. 1. cap. 6. Sect. 3. he ſayes, is by the Law of Nations, whereby againſt Nature, one man is ſubject to another: And the like aſſertion he lets fall (by the way) not long33Lib. eod cap. 9. ſect. 3. after (poteſtas Dominorum in ſervos à Jure gentium eſt:) with the ſame enlargement to all reſtraints as the Civilian taught:44Lib. eod. cap. 12▪ Sect. 4, & 5. Add whereto what a little before: Manumiſſiones anima juris gentium ſunt; Eſt autem Manumiſſio datio libertatis, i e, detectio ſecundum quoſdam▪ quia libertas quae eſt de jure naturali per jus gentium auferri non potuit, licet per jus gentium fuerit obſuſcata Iura enim naturalia ſunt immutabilia.—Item ex hoc jure introducta ſunt Bella, cum ad tuitionem patriae inducuntur à principe, uel propulſantur violentiae. Ex hoc etiam jure gentium diſcretae, i e. ſeparatae vel diviſae ſunt gentes, Regna condita, & dominia diſtincta. Et non ſunt dominia de novo inventa de jure gentium, ſed ab antiquo, quia in veteri Teſtamento, aliquid erat meum & aliquid tuum, & unde tunc erat prohibitum ne furtum fieret, & etiam tunc praeceptum ſuit, ne quis mercenarii ſui retineret mercedem. Ex hoc etiam Iure gentium agris ſunt termini poſiti, aedificia ſunt coliata & vicinata.—Et generaliter jus gentium ſe habet adomnes contractus, & ad alia plura, 16 cap. 5. ſect. ult. Much to the mind and words of what was before from Rome. Some things are common, ſome publike, ſome Corporations, ſome no ones, and ſome every ones: And as by Right remaining yet Common, and according to Nature, he inſtances in Water, Ayre, Sea, and Shore: which retaine their primitive univerſall freedome, and were never yet in bonds to any.

p. 17Fleta treads for the moſt part his ſteps, and it may not be pleaſing to lead the ſame dance over and over, or to repreſent as a new Show, that which hath in it nothing of variety and novelty; wherefore I only11Vid. lib. 1. cap. 3. Sect. 1. & ca. 5. Sect 3. 6. referre to him. And ſo for Dr Cowell late of Cambride, who profeſſing to mould our Laws according to the patern of the Imperiall (Inſtitutiones Juris Anglicani ad methodum & ſeriem Inſtitutionum imperialium compoſitae & digeſtae, is the Title of his Book:) In the ſecond, third, and fifth Titles of his firſt Book, and firſt of the ſecond, has the ſame parallel things, and near words; ſhewing indeed, that the Laws were parallels; and, which was his Plot, in theſe things both alike. I may not have omitted the Student to his Doctor; the Authour is both Grave and ſerious, and were he in tranſmittatable Language, might gaine with time, and more Authority after ſome Centuries then he has in preſent: Beſides other places, He delivers himſelfe in his22Dial. 2. cap. 3. fol. 64. Book thus: It is to be knowne, for ſatisfying the doubt how the property of a mans goods may be altered (as in an Out-lawry) without his conſent; that, The property of Goods (he might have ſaid, of Lands, the reaſon is the ſame; I beleeve he meant both,) be not given to the Owner by the Law of Reaſon, nor by the Law of God, but by the Law of man, and is ſuffered by the Law of Reaſon, and the Law of God ſo to be. For at the beginning All goods were in Common; but after they were brought by the Law of man into certaine Property, ſo that every man may know his own, then were conditions aſſigned; and ſo he proceeds to reſolve his doubt, by that one condition (here) was then, that if a man were Out-lawed, he had nothing as a man not to be truſted, or an enemy &c.

Many other ſuch plaine Aſſertions are partly in This, and Theſe, and partly in other our next to Oracle-Lawyers, which joyned to what before; give, if not aſſurance, much probability that the truth is, and the nature of things was at firſt, as I ſay, or elſe there would not have been ſuch conſpiring teſtimony. Agreeing Witneſſes is among the ſtrongeſt of proofes, and a likely evidence that they all ſpeak the truth, who all ſpeak the ſame; and as in neighbour Buildings p. 18their help and aſſiſtance is mutuall, and ones ſtrength ſtrengthens another; ſo here. The grave Rules theſe have been, and prevailing Miſtreſſes, if I may ſo ſay, whoſe words have been obeyed to ſway a good part of the paſt and preſent Chriſtian World: and they ſhould not have been empty Rattles, (Vox & praterea nihil, as he ſaid of the Nightingale,) mear ſpeeches or noyſe that went for nothing: The Canon for the Church, the Civill for the Empire, and our Civill for our Monarchy; what can we look for more, or more Authorative, after ſo great and honourable atteſtations?

Neither hath the Realty of things been otherwiſe in exiſtence ſometimes, then according to the matter held forth in theſe Rules: There have been and Are, that have lived and Doe live accordingly: perſons ſo compoſing themſelves that they remaine happy without incloſure or guard, home or own, and they never ſaw yet reaſon (which they obeyed) to remove them from the benefis, (eſteemed ſuch, with all inconveniences) that they found and had in this they ſtill thought their moſt expedient Community; ſome ſimple Indians retaine it to this day; they will not exchange their Liberty for our Wealth, nor their native, as we count it barbarous freedom; for whatſoever we eſteeme better, richer, ſurer, and nearer, comming unto us under the name of our magnified Civility. They have not our advantages, ſo neither our inconveniencies, our enriching Property, ſo neither our emergent vices and troubles. Take away this, there would be no place left for many of thoſe we call Crimes that trouble the World, nor temptations to others, which it might be our happineſſe to bee free from, and ſuch as would perhaps goe much toward the balancing of the benefit of our Riches.

Beſides, the Primitive Chriſtians lived Thus too: Wee 11Vid. Act. 4. 34 & compare Euſ. Hiſt. Eccleſ. lib. 2. cap. 16 pa. 27.Acts 4:34know they did; and many principles of that Religion diſpoſe thitherward. (Mark the juſt extent of my word and meaning; I doe not ſay, Thither; but, Thitherward, That way.) They began our religious pattern in a22Glorifying God for your profeſſed ſubjection to the Goſpel of Chriſt, and what followes? foreign: for the ſimplicity of your Communion to the Macedonions and All, 2 Cor. 9. 13.2 Cor 9:13 Community, p. 19and did not build ſo evident certainty any where for awhile, as in a flat Level. Give us their ſimple Charity, we ſhould do the better without our quieting boundaries, or inriching property; make us ſo meek, humble, gracious, & diſpoſed to be helpfull to one another,33Malebant tenui contenti vivere cultu; as Cicero of his Aratus: quod eſt proprium noſtrae religionis. Lactant. de Iuſtitia. lib. 5. cap. 5. vid. Luc. 3. 14. Phil. 4. 11. 1 Tim. 6. 6. 8. Heb. 13. 5.Luke 3:14Phil 4:111 Tim 6:61 Tim 6:8Heb 13:5 contented with any thing, charitable to All, as they were, we ſhould the leſſe miſſe, or perhaps not complaine of any miſſe at all of our troubleſome wealth, nor the ſcale ſwaying to any ſenſible incommodity by that loſſe, taking in the amends of our then from many vices and troubles moſt certainly freeing Community. For,44Nondum veſanos rabies nudaverat enſes: Nec conſanguineis fuerat diſcordia nota: This at firſt: but after, Tum Belli rabies, & amor ſuc…ſſ…t habendi, upon incloſures, and in Iupiters dayes, when Saturn was gone: Ille malum virus ſerpentibus addidit attis, Praedarique Iupos juſſit &c. id eſt, odium & invidiam & delum inſevit hominibus, Id ibid. Covetouſneſſe would be a name, theft not in nature, wrangling Suites vaniſh, fraud remove, guile be a ſtranger, no injuries known or poſſible. Thoſe many ſprigs that ſhoot out of that accurſed root, Amor ſceleratus habendi, would not only be lopped off, but the root it ſelfe, the diſorderly affection taken away, even to an impoſſibility; and with no riches, much innocency, great content, ſtrange quiet, a baniſhment of many vices, and plenty and enough to every one, with our firſt primitive ſimplicity.

Though I confeſſe, this was either not generall, or laſted not long with thoſe Primitive Chriſtians neither, for by Act. 11. 29. we have private abilities fruitfull in beneficence; and Collections for the poore, which many wayes ſuppoſes propriety, 1 Cor. 16. & 2 Cor. 8. and reliefe even amongſt brethren11Iam enim ceſſarat illa communio & diſtributio donorum de qua dixi. Creverat enim numerus Chriſtianorum ad plurima millia inter quae impoſſibilis erat hac communio. Cornel, a Lap. in Epiſt. Iacob. 1. ver. 27 pa 72. Jam. 2. 15. 16. 1 Joh. 3. 17.

But the meek Eſſenes continued ſo; whoſe precepts (many of them) hold much correſpondency with the ancient Chriſtians, and if they were not ſuch, or their forefathers immediate, many have been deceived22So St Ierom. expreſly Catal. Illuſt. virorum in Philone. pa. 102. rom. 1. Euſeb. Hiſter. Eccleſ. lib. 2▪ cap. 15. 16. Huic libro Philonis (de Eſſaeis▪) Suidas titulum tribuit▪ de vita Chriſtianorum. Chriſtophorſon▪ annot. lb. who thought them ſo. Now theſe trod in the ſteps of Juſtinian foreign p. 20and from all ſervility at firſt, which they hated as unnaturall and unhumane, they went on to place in the ſame cauſe All dominion or domination. Two ſorts of them there were; The Students, and the Practiques: (I compare them in ſome things, with the Secular and regular Prieſts; ſome are for Converſation, other ſhould be more for Meditation and Contemplation;) but both of them went together in This ſame way: Take account of them of thoſe are likelyeſt to enform us. Philo an Alexandrian 33Natione Alexandrinus, de genere Sacerdotum. Hieron. Catalog. V…i paulò ſupeperius. So in the Preface to Philo's works. p 1.Jew, and I think Prieſt, tells of the44In lib. de vita contemplatpa. 696. former: That they are not ſerved by Servants, which they account quite beſides natures intention, who made all Free: It was the greedy iniquity of ſome 55Very pathetically deſcribed by Lactan. Fi…m Non tantùm enim non part cipabant aliis …i quibus aliq…id affluebat, ſed aliena quoque rapiebant, in privatum lucrum trahentes omnia: & quae antea in ufus hominum etiam finguli laborabant, in paucorum domus conferebantur. Vt enim ſerv…tio caeteros ſubjugarent, inprimis neceſſaria vitae ſubducere, & colligere caeperunt, eaque …irmiter concluſa ſervare ut beneficia caeleſtia facerent ſua, non prop er humanitatem quae nulla in ipſis erat, ſed ut omnia cupiditatis & avaritiae inſtrumenta co…raderent. Leges ſibi et…am juſtitiae nomine munitas, iniquiſſimas, in juſtiſſimaſque ſanxerunt, quibus rapinas & avaritiam ſuam contra vim multitudinis tuerentur. Tanttum igitur authoritate, quantum viribus aut opibus, aut malitia praevalebant. Et quoniam nullum in his juſtitiae veſtigium fuit, cujus officia ſunt humanitas, aequitas, miſericordia, jam fuperba & tumida iaenqualitate gaudebant, altioreſque ſe caeteris hominibus ſatellitum comitatu, & ferro, & inſigni veſte faciebant. Hinc honores ſibi, & purpuras, & faſces invenerunt, ut ſecurium, gladiorumque terrore ſubnixi, quaſi jure dominorum perculſis nec paventibus imperarent. lib. eod. cap. 6.domineering Tyrants, who having gotten power into their hands (perhaps intruſted) changed their rods into Swords, and turned their own Canon given for defence againſt their own Subjects, and having gotten their fellows down, kept them (by ſtrength only of their cruell clutches) and of no more right then force, continued the Uſurpation over their ſubdued fellows. With them, no ſuch thing; for no ſervant, but all free; any farther then they did in love ſerve one another: So the ſervice was performed (mark, their ſervants then were in lower condition then ours; ſlaves or worſe, which made the condition ſeem to ſoft and mercifull men ſo unreaſonable and hard) but by no Tyrannicall conſtraint: the younger ſerved the elder, they took care of the younger, each in love; and no feare, ſcarce awe: But every one made neceſſary Offices his voluntary duty, and thus ſervice with no commandement. This is the ſubſtance; I ſtick not exactly to the words: And for the other ſort, the ſame Author in another Book; Servants among them p. 21(ſaith11In lib Quòd omnis probus liber, p 678. he) they have none but they do22as Gal. 5. 13.Gal 5:13 in love (as the other) ſerve one another. They hate dominion both as unjuſt and impious, as clean contrary to Natures law, who made all men equal, not onelyonly in name, but in reality. Joſeph the ſon of Matthias gives the ſame33Antiq. I…d. lib. 18. cap. 2. account; and44Montagues Acts & Mon. cap. 7. ſect. 73. &c. others: and for the inlarging this reſtraint from ſervice to any Dominion elſe unlawful, as Cuiacius did, very pleaſing is that the laſt named Hebrew Prieſt55lib 2. cap. 7. recounts of them in his Hiſtory of the wars of the Jews: They contemne (ſaith he) riches, and all things with them are common, neither is any among them richer then other. They have a law among themſelvs, that whoſoever will follow their Sect (compare that of Chriſt with it, Luke 14. 33. Verily, verily, I ſay unto you, whoſoever forſaketh not all that he hath cannot be my Diſciple;) muſt make his goods common to them all; for ſo neither any among them ſhall ſeem abject for Poverty, nor any great for Riches; but they have fitting equall Patrimonies as brethren. They hate Curioſity, &c. They have among them Procurators to overſee, (the very picture of the after-Coenobite, and according to the import of that word) and uſe all things among them for their common benefit, and every one ſeeketh the good of all (compare Phil. 2. 4. Minde not every one his own things, but every man alſo the things of others:) and thoſe (Procurators) are choſen from among themſelvs by common conſent. They have many Cities, and if any of their Sect come unto them from another66Patent eorum ſodalitia …ominibus etiam advenis idem inſtitutum ſervantibus. Omnibus unum eſt promptua ium, unde veſtitus & menſa communis ſumitur, &c. Philo lib. eod. pag 679. place, they give him any thing they have, as if he himſelf were owner thereof. (Let the Catechumene communicate with his Catechiſt ſo, foreign, in all things. Gal. 6. 6.) And, in brief, they go in boldly to thoſe whom they never ſaw before, as if they were familiarly acquainted with them: And therefore when they take a journey, they onelyonly arm themſelvs againſt thieves, carrying nothing elſe for their journey. (Compare again that part of our Saviours directions to his Commiſſioned and Itinerary Sanhedrin, Luke 10. 4. Carry neither purſe, nor ſcrip, nor ſhoos, and ſalute none: and into what houſe ye enter, firſt ſay, Peace, &c. and in the ſame houſe continue eating and drinking what they bring, &c. but more plainly to his Twelve, p. 22(heads of the Tribes, and each a reſemblance of the Hebrews Policie,) Provide neither Gold, nor Silver, nor Braſs in your purſes, nor Scrip for your journey, nor two Coats, nor Shoos, nor Staves, Matth. 10. 10.) In every city one is appointed to take care of ſuch gueſts, and ſee they want not cloaths or other neceſſaries, which they never change till altogether unuſefull: (yet fear no want, for they have a Wardrobe everywhere whither they come:) Amongſt themſelvs they nor buy nor ſell, but he that hath what may pleaſure another, imparts it, and ſo taketh without leave of him whatſover he needeth. Their labour is great to maintain this expence: their fare the ſame, eaten in publick, and with much reverence and devout thankſgiving: and though in all other things they are chiefly tyed in obedience to their Governours, yet in giving they may may be as open handed as they pleaſe, ſave to their kindred, where they muſt have leave of their Superviſors.

Is not this a ſtrange happy life! beyond rich! obſcuring the glory of Caeſar and Craſſus! if not what ever elſe is here among mortals! and like to laſt too, by their perpetually ſupplying induſtry. Are they not more admirable for this, ſaith Philo, then for any wealth and abundance? I confeſſe I was fain to ſtretch my patience much to go on ſo far reciting, being like to ſtop many times by the way, my affections indeed ſcarce ſuffering my intellectuals to make their orderly paces forward; for I never ſaw, me think, in all my life any thing more admirable, or ſo much toward the beſt on earth, and beyond Royal and Imperial. And all this with little, with nothing: as the Apoſtle ſpeaks,2 C…r. …. 10. Having nothing, yet poſſeſſing all things. Give us, I ſay again, but gracious hearts, contented and humble mindes, lowly affections, and true Chriſtian qualifications, fearing God and hating Covetouſneſſe, and we might be ſoon thus rich all, beyond the wealthy; All the poor in the world as their Lords, (and yet they never the worſe) for, (no one greedily griping any thing) every one would ſhortly be Lord of all things. And to ſhew that this may laſt, (if we had but truely loving and not ſelf-ſeeking hearts, ſuch pliable and humane mindes, as men may have) the ſame Joſeph tells us, that the ſame Eſſenes kept it from all p. 23Antiquity, being herein, faith11Godw. Antiq. Heb. lib 1. cap. 12. pag. 57. another, like the Pythagoreans, who held it alſo in their way, and yet wanted ſome good principles tending this way, that were both in the Eſſenes, and are in our Religion.

Behold here this ſpeculation reduced to act, that what I ſaid may then be, becauſe it has been, and is: both heretofore and now the ſtage of this world repreſents examples in being to every ones veiw and conſideration. Neither doth this contradict the Scripture: we ſhewed before thence ſome glimpſes of light rather to countenance it, but there is nothing ſure that forbids Community, or commands that Separation which breeds propriety in either page of the Old or New Teſtament. For the Old firſt; where the Story of the Creation tells us indeed,22Gen. 1. 28, 29. Deus humano generi generaliter contulit jus in res hujus inferioris naturae ſtatim à mundo condito, atque iterum mundo poſt diluvium reparato. Hinc factum ut ſtatim quiſque hominum ad ſ…o… uſus arripere poſſit quod vellet, & quae conſumi poterant conſum…re. Gr…t. de Iure Bel. lib. 2. cap 2 ſect. 2. pag. 127.Gen 1:28Gen 1:29 The earth was made, ſtabliſhed, & adorned, and the Parent of the Donation (all that was) that God bleſſed Man, and bade him Multiply, and have Dominion over the Fiſh of the ſea, the Fowls of the air, and every thing that moveth upon the earth, with Herb bearing ſeed for food, and Tree bearing fruit for meat; and Adam particularly put into Paradiſe: But what parted place any one ſhould have, or the fruit or royalty of ſo much ground with excluſion of others; or that a partition ſhould be made, One to have This, Another That, this we read nowhere. After when things were (as it appears after) ſeparate, (for▪ Cain and Abel had their ſeverals, Gen. 4.) and after that again confounded by the Flood, the following reſtitution to former ſtate, if we view the renewed33Gen 9. 3. Every moving thing that liveth ſhall be meat for you, even as the green her… have I given you all things &c. So far from giving any h…nt of Appropriations, that from things, ſo as they are here cast down in a heap, ſome fetch argument for a Community: as in Bellarmine de Bonis oper. in partic. lib. 3. c. 11. E… certè non obſcura rerum planè communionis veſtigia occurrunt in donatione illâ Numinis, Gen. 9. 2. ſaies Mr Selden Mare Clauſ. lib. 1. cap. 4.Gen 9:3Gen 9:2 patent of the ſupreme Lord, had not much more then the former, but ſpake much in the free and general language of the firſt donation: And if Noah's Poſterity had after any Severals, (as we know they had) they were left to divide by humane diſcretion, and each to have no more then what by the Providence of God their own wiſedom could mutually aſſcribe to one another. Which was done, Gen. 10. (Hitherto we finde no Jus Divinum what every one ſhould have:) for the Iſlands were divided, and 'tis ſhewed by whom, ver. 5. and in Pelegs time the land (which I take to be the terra firma) ver. 25. (and ver. 32.) whence he had his name of Peleg, that is, Diviſion. After what was p. 24in the promiſe to Abraham, or Levitical Law, or execution in the Book of Joſhuah, all know; but nothing to our purpoſe. Come we then to the New Teſtament: Is there required any ſuch thing as this diſtribution, or bounds ſet, or appointed they ſhould be ſet, what ſhould be whoſe? If it be, 'tis very obſcure, and the lines ſo dim that mark it out, that they and it are by any ordinary eye very hardly diſcernable. Our Saviour bids, give to the Poor, and to Caeſar, and to every one his own, and many ſuch things, ſuppoſing Propriety, but then the Propriety was before; He nowhere raiſed fence, but intimated and inſinuated it ſhould be kept. They would once have**Iohn 6. 15.John 6:15 made him a King, whereby he might have graſped dominion into his own hands in groſs, which he might have afterwards given out by retaile: But this he peremptorily (if not ſcornfully) refuſed, becauſe11Iohn 18. 36.John 18:36 his Kingdom was not of this world. The manner and courſe of his life we all know, and that we muſt make the beſt of it, to advance it above Indigency. He often complaineth he had not a houſe to put his head in, and was fain to22Matth 17. 27. Obſerve: And this he did that he might be able to ſatisfie an unjuſt order: for the children were free, of whom he was: So far from countenancing the eſtabliſhing of any new Power he might ſeem to ſet up, that meerly becauſe his quietneſſe ſhould not give offence (foreign) he readily ſubmitted to the unjuſt power that was. Sure his Kingdom is leaſt of this world and worldly Dominion As ſure, his Religion rightly taught, or Power duely uſed, will have no operation to hurt any Powers, if juſt, be they what they will: Be ſubject to humane Ordinances as yee finde them, is the pith of the whole; Be contented and quiet, much of the duty of a Chriſtian, as to the publick.Matt 17:27 create as it were a doller to pay his tribute: ſo little he medled with wealth or worldly Poſſeſſions. There was ſome of this very work brought unto him, an33Man, who made me a Iudge, or a Divider over you, Luke 12 14. To decline what in the ſame expreſſe ſyllables, (as it is in the Septuagint) was objected to Moſes, Exod. 2. 14. Contentus dare Praecepta generalia, quae ad res quaſv… accomodari à vole…tibus facillimè poſſunt, ſingulorum negotiis me non immiſcebo. Grot. ad loc.Luke 12:14Exod 2:14 Inheritance in groſs, which he was requeſted to be ſo charitable as to divide, to part ſtrife between brethren; but he would not intermeddle for that reaſon which alſo conſtantly ſwayed with with him in his whole courſe, he would be no medler, no divider of Inheritances. He did not finde any fault with the thing done, forbidding it ſhould be put in practiſe by others, but rather approves of what he found, by the juſt meaſure of his Acts and Words heeded: for, (argue from his ſilence) he laid not the block of any prohibition in the way, having juſt occaſion; permitting there by, no doubt, other perſosn, Corporations, States, or Laws to do what they ſhould think good, (which is enough againſt p. 25all Levellers) and he approves and ratifies what they ſhall do for their convenience, by the ſame reaſon for which he would not divide, for neither way would he meddle: Nor ſhould the Court-Chriſtian interpoſe in ſecular Affairs, or Religion diſturb the quiet world, but leave things as they are found, and let worldly men diſpoſe as they will their worldly Inheritances. Conſidering (in our depraved eſtate) the Corruption of our Nature, it can hardly be conceived how we ſhould do well, or frame to quiet (ſo many as therebe of us, and of manifold mindes and tempers) without partition, which might render it neceſſary he ſhould (à poſteriori) approve thoſe by Laws the Community of men ſhall make for quietneſſe and ſtinting the Common, which he does in ſubmitting, and commanding to ſubmit to the Powers that were: But that he ſhould take the matter into his own hands to formalize properties, or erect or give order for any ſet Courts to order or diſpoſe of them: This I believe will never be made good from any thing He or his Apoſtles did, or 'tis ſaid, that they either effected, or intended, or gave any neceſſary command for any ſuch thing, or ſo much as that Partitions or Proprieties muſt be, from any leaf or line of the Old and New Teſtament. They may be, as ſhall be ſaid next, and theſe do not contradict but confirm; but that they ſhould and ought, this is not ſhewed.

Wee ſee then, as to the firſt Propſiotion, that Propriety is not neceſſary, nor was it natural: The Canon, Civil, and Common Laws found all left in a Community: ſome ſimple Nations continue ſo ſtill: the firſt Chriſtians began in a level: The Eſſenes held it up long with great applauſe, nor is any thing in Scripture found in prohibition of continuance, if we had but gracious humility, and true love to make us capable of ſo great a happineſs. But yet then we are in a wilderneſſe: And what muſt we needs ſtay there? Nature indeed made not, commanded not partitions, nor God (the revelation of whoſe will is wholly ſpent at utmoſt in toleration.) But may not the wiſedom of man proceed further by Gods permiſſion? though not ex vi praecepti, by force and impulſion of any ſtrict command, yet by taking the leave, ſeems given, in that p. 26it is not denyed: Queſtionleſs, yes, Humane11Ratio nihil aliud eſt, quàm in corpus humanum pars divini Spiritûs merſa. Sen. ep. 66. Prudence is a ray from God, ſhining dimly in the bottom of mans earthly heart, and has not hitherto directed all men amiſs that by the light thereof have found out any Good; their own, or that they had an own, or that an own was, or might be. God loves man ſo well, that he loves every Good of man: the Good of Society, the Good of Order, the Good of Peace, the Good of Benefit, even to that outward Beſtial part, whereof yet the divine Soul is a bleſſing and ſanctifying inmate. All which Goods being ſo nearly concerned and highly advanced by, This is Mine, we cannot look upon our good God as careleſly neglecting, or enviouſly nilling that man ſhould reap any fruit or benefit of that wiſedom (which is alſo his gift) whereby he is enabled to finde out any of theſe Goods ſo much for his glory; whence, with much likelyhood, ariſeth this ſecond Propoſition, That although God and Nature left things at large, yet