The Civil Right of Tithes, Ecclesiastical tract · Chapter 4

The Civil Right of Tithes · Ecclesiastical tract · Chapter 4

p. 41CHAP. VI.

Propoſition 6.

HHere in England, that which gives me right or title to any thing, is Lex hujus Terrae, or Our Law. This is the Baſis of all Engliſh property, and grand Charter by which every man holds his eſtate with us: The Fortune-teller, yea, the Fortune-giver, and Maker, and Creatour of all Right and Title among us, which lets in firſt light of poſſibility of fraud, injuſtice, or any wrong, and that alone gives place to the 8^th Commandement, ever to take any place, Thou ſhalt not ſteal; for, where is no Law, is no tranſgreſſion: if we had no right, we could have no wrong; and in bare taking how could I be accuſed to ſteal that which is no mans, but is now by law indeed anothers?

By Law here I underſtand that which under ſundry beads has been of ſuch force with us:Doctor & Stud. As the Law of Scripture firſt, which is not here a Law onelyonly,Dial. 1. cap 6. but a Law of Laws; whatſoever is here done againſt it, is foreign, as againſt the Law of the Land: and farther, if any Law be made againſt it, that Law is a grievance and an offence, and thereby both unlawful to obey it, and the order it ſelf null, as more then revocable revoked, as if it were made againſt the great Charter. (Upon which ground alſo Diſmes are here due, ſaies11id. ibid. fol. 11 a very good Lawyer.

Then have we the Law of22Rep 7. Calvins Caſe. Doct. & Student. Dial. 1. cap. 5. Reaſon, or Nature, or Nations, taken in likewiſe into our Code or Canon, ſo that whatſoever is done againſt the ſame (generally received) is againſt Our Law, as was ſaid of the imbraced Scriptures p. 42to us Chriſtians; and11Becauſe it is written in the heart, it is never changeable by no diverſity of Time or Place, and therefore againſt this law, Preſcription, Statute or Cuſtome may not prevaile; and if any be brought againſt it, they be not Preſcriptions, Statutes, nor Cuſtomes, but things void and againſt luſtice. id cap. 2. fol. 4. as a crocked Rule, made by a ſtreight, to make right lines by. As in the Empire: Omnes cujuſcun que majoris vel minoris adminiſtration is univerſae noſtrae Reipublicae Iudices monemus, ut nullū reſcriptum, nullam pragmaticā Sanctionem, nullam ſacram Annotationem, quae generali Iuri, vel utilitati publicae adverſa eſſe videatur, in diſceptationem cujuſlibet l…tigii patiantur proferri: ſed generales ſacras conſtitutiones modis omnibus non dubitent obſervandas. Dat. Kal. Iul. Conſtantinopol. So the Emperour Anaeſtaſius. Cod. lib. 1. tit. 22. l. ult. this likewiſe, as that, a Rule of Laws. Alſo that law of Reaſon, ſpun out into certain, as it were derivative branches, which are ſo many ſorts of that wee call poſitive Law; as, 22General: whereof the Student to the Doctor, Dial. 1. cap. 7. as the third ground of the Law of England: or particular, whereof cap. 10, 16. Bract. lib. 1. Sect. 2.Law Cuſtomary, 33Whereof the Body given by Bracton, Fleta, &c from times before.Law Common. 44Vide Doct. & Stud. Dial. eod. cap. 11.Law Statute. 55Cook Inſtit. 1 fol. 11. b.Law Maritime, or that of Oleron, publiſhed by our Rich. 1. there, but of Engliſh mint, though there caſt and named; the Engliſh Sea Law it is made at Oleron: The66Cook ibid & Inſtit. 4. cap. 22. pag. 134, &c. of the Court of Admiralty proceeding according to the Civil Law. Civil Law alſo, as in our Courts of Admiralty, and Marſhalſey, and generally ſupplying77Atqui interea, è locis ſuperiùs ex Iure Caeſareo ab Iuriſconſultis Noſtratibus? Fletâ utpote aucore, Bractonio, Thorntonio celeberrimis ac Iudiclis cum primariis (quantum ad poſteriores binos attiner) Praefectis, ita allatis expreſsímque indicatis, atque in rerum quas tractârunt probationem & argumenta ſic adhibitis, idque velut authoritatem aut ſaltem rationem cogentem prae ſe ferentibus, manifeſtum fit, Vſum qualemcunque neque cum adeò obſcurum apud Majores noſtros …o in ſeculo juris ejuſdem, a… que illius librorum in diſcuſſionibus noſtris etiam ex jure Anglicano definiendis invaluiſſe. Not with intent to ſubmit this Kingdome to Caeſar or his Laws, or relinquiſh our own,—ſed ut, tum ubid effct noſtri Iuris praeſcriptum expreſſius ad rationem etiam Iuris Caeſarei ratione ſuffultam recurreretur, tum ubi Ius ntrumque conſonum, etiam Caeſarei quaſi firmarecur, explicareturve res verbis. Seld. ad Flet diſſert. cap. 3. Sect. 4. pag 472. the defects, and eeking out the imperfections thereof by its larger ſpread body, eztending thereby to many particular either determinations or reſervations, helpfull where the brevity of our ſhorter Rules and Maximes of Prudence could not reach.

Laſtly, the ſeveral pieces of allowed88Cook on Littleton, Sect. 648. fol. 344. & of the Iuriſdiction of Courts, cap. 74 p. 321. Canon, fitly called the Kings Eccleſiaſtical Laws:Doctor & Student, Dial. 1. cap. 6. fol. 11. which though miniſtred by Church-men,Artic. Cleri 9 Edw. 2. is, or was, one of the Kings arms of Juſtice,Cricumſpectè aga…is. 13. Edw. 1. whereby he reached out his helping power,Stat. of 24. Hen. 8. 12. and exerciſed ſome part of his Eccleſiaſtical Juriſdiction to ſome perſons,Sr Th. Smith de Repub. Anglican. lib. 3 cap. ult. and in thoſe Caſes it concerned him to have both ended, and thus ended, and accordingly was.

All theſe are ſo many Oracles of Juſtice, Pillars of Right, p. 43Diſtributioners of property, and Umpires of ſtrife, authorized ſufficiently ſo to do, and to give me any thing that they do give me, and what is ſo done or given is lawfully; and if any thing be ſo ſetled upon me it is queſtionleſs11And of ſuch a Law of Ma… that is conſonant to the Law of God, it appeareth who hath Right to lands and goods, and who not: for whatſoever a man hath by ſuch …aws of man, he hath righteouſly; And whatſoever is had againſt ſuch laws, is unrighteouſly had. Dr. & Stud. Dial. cod. cap. 4. fol. 8. mine. And as by theſe, ſo generally by writing, or cuſtome, by ſtatute, or canon, whatſoever in the true judgment of Courts, and common reception of thoſe that are not miſtaken, is Law; That is the ſame pillar of property, aſſertour of Rights, foundation of dominion, ſtrength of title, and giver, maintainer, preſerver, defender, aſſurer, and protector of a man in that he ſo has: as an oracle it tels him truly what is his, as more then a Prince he gives it him, and makes it wrong, injury, fraud, theft, uſurpation, injuſtice, (and theſe things only poſſible this way) if it be taken away from him.

And for this purpoſe all theſe are equally and alike ſufficiently operative.In every Law poſitive well made is ſomething of the Law of Reaſon, and of the Law of God. Id. fol. 7. There is no choice; for where all are the ſame, and have the like cauſe of power, one muſt needs be as good as another.

All our law is in ſome ſort, (derivatively, mediately, at ſecond hand) the voice of God approving all juſt pactions, and humane poſitive lawes, and ſo his ſtamp is upon every part; and he that reſiſteth, in any, reſiſteth the Ordinance of God. Neither have we any other: Theſe are the alone limitations, banks, and boundaries, that hedge in, and hedge out, giving certain admeaſurement, as the law-word is in ſome caſe, of properties, to ſo very many as there be among us, making us know our home, and giving our home, which none but they can do in this various world. For the Divine Law immediatly is of no force; the ſevering by Tribes, or cutting by Joſhuah's thread ſerved but once, unleſs for example, (and ſo I beleeve much uſe hath been made of it here, more then we are aware of or do readily underſtand, our22Aluredus Rex (who as all grant made our politicall diviſion) ubi cum Guthruno Dacofoedus inierat, prudentiſſimum illud olim à letrone Moyſi datſi ſecutus conſilium, Angliam primus in Satrapias, Centurias, & Decurias partitus eſt. Satrapiam. scyre, à …scyran, quod partiri ſignificat, Lominavit: Centuriam hunðreð: & Decuriam teoþung, ſive tienmantale, id eſt, Decemvirale Colleg ū appellavit, at que eiſdem nominibus vel hodie vocitantur. Hence our Tythingmen, &c. And a little after: Decrevit tum po…ro Aluredus liberae ut condition is quaſ que in Centuriam aſcriberetur aliquam, ut que in Decemvirale aliquod conjiceretur Collegium: De minoribus negotiis Decuriones ut judicarent, ac ſi qua res eſſet diſſicilior, ad Ceuturiam deferrent: (like the ſteps of Appeal, Exod 18. 210. Deut. 1. 6 17.) Diſficillimas deni que & maximi momenti lites Senator & praepoſitus in frequenti illo ex omni Satrapia conventu componerent. Gloſſ. ad Lambard. Archaion. pag. 217. in vocab, Centuria. Approved by Dr. Cowell in his Interpreter, in vocab. Hundred. And compare farther Ioſeph Antiq. l. 3. c. 3. and 2 Chron. 25. 5. Some glimpſe hereof appeared to the publiſhar of Sir H. Spelmans late larger work of Tythes. pag. 41.Exod 18Deut 1:62 Chr 25:5 Shires, Hundreds, Tithings, &c. p. 44Coming I verily beleeve at firſt from the patern of Judah, Levi, Simeon and Benjamin, by exemplification:) If any man ſhould attempt it, he might be partial; if none, the thing not done: ſo that ſuppoſing a partition needful, and ſome to doe it, and no revelation from heaven, (ſave in paterne or general rules,) we can lay hold of no other umpire or Judge like to be fit to do it, then that voice of wiſedome (implying all mens conſents) which is in the Law; the gracious goodneſs of God aſſiſting the grave wiſdom of man, yea, inabling and authoriſing it to ſet bounds hereby to our appetites, & maſter our unreaſonable, proud, headſtrong deſires; giving luſt a law, covetouſneſs a law, the hand a law, nay, the eye a law, that it may not ſo much hereafter as greedily covet what is anothers. This is that which bindes the Bear and ſhackles the wolf, lays fetters upon our wilde and forreſt deſires, that elſe would make us very apt to hearken to temptation to be preying one upon another. But this reſtraines our fury, and locks up the Lion in the grate, bidding, yea forcing all to goe home and be content with their own; Sorte tua contentus abi, and caſt not a fruitleſs, ſinful, greedy glance upon the incloſure of thy neighbour.

To give inſtance in ſome particulars: From this law thus received amongſt us it is, that I am to ſucceed in my fathers fee: I have right to ſucceed, I may claim my right; and I have wrong if I be kept out of my due & lawful inheritance. For our Law hath divided much land into ſuch tenures, (upon reaſons of profound wiſdom not diſcernable to every comon apprehenſion,) that hath willed I ſhould ſucceed my father, if his heir; I am his heir, nay, though a daughter, and therefore I muſt and ought to ſucceed.

It is not ſo in11As in the Ottoman Empire where the Timars are much the ſame with our military. Benefices, obliging eſtates for life, upon death the State diſpoſes, as of our. Eccleſiaſticall Benefices; that falling not by inheritance, there may be ſtill choice of fitting men, vide. Knoll. Turk. Hiſt. in his Appendix of the Turkiſh kingdom fol Aaaaaa: and that learned and judicious obſerver, Sir Henry Blount has alſo the ſame, who was lately among them, p. 65, 66 and before them Mr Selden in his Titles of Honor, par. 2. c. 12. So 'tis alſo in the G…eat Mogols State, lately erected and ſupported by them: vide Pvrch. Pilgrim l 5. Append. ad c. 6. p. 543, 544, 545. Edit. 1614. And Scanderbeg uſed the ſame policy alſo in Epirus. Now all this might have been well enough here, for the ſame thing hath continued, and is yet well enough in the Eccleſiaſticall State, nor wrong thought by the ruling Conſtitution, if when the man dye, the widow and children are preſently ſtrangers: Nay, even in ſome nearer parts of Chriſtendom as to ſecular ſucceſſion too: for the Gloſſe on the Feudall Law, ſpeaking of the old way for life onelyonly: Et hoc adhuc obtinet ſecundum rigorem conſuetudinis in feudo Marchis, Ducatus, Comitatus, vel alterius regalu dignitatis ab Imperatore datae, quoniam illud foudum finitur c…m perſona acctpientu; quia hares in eo non ſuccedit, niſi ab Imperatore inveſtiatur, Gloſſ, ad vitam, ad ſeud. l 1. tit. 1. ſect. 1. And 'tu true, it uſe in the Text. De Marchia vel Ducatu, vel Comitatu, vel alia regali dignitate ſi quis inveſtitus fuerit per beneficium ab Imperatore, ille tantum debet habere, haeres enim non ſuccedit ullo modo, niſi ab Imperatore per inveſtituram acquiſierit: lib, eod. tit 14. Though perhaps it be not ſtrictly executed: But this, it ſeems, the Law. other States, nor was it in ours if it be p. 45right feodal, where the fee was either for22Or not ſo long, but dum bene ſe geſſerit, at firſt, as an eccleſiaſticall man keeps his Benefice, or as Tenants at the will of the Lord, to be outed upon diſtaſte, as a ſtipendary ſervant from his ten pounds a year. For the Fee was nothing but ſo much land given for obſervance: To ſuppreſſe outrages, maintain the Lords title, and help keep the reſt in awe. Take the beſt anthority, Antiquiſsime enim tempore ſic erat in dominorum poteſtate connexum, ut qvando vellent, poſſent auferre rem in feudum a ſe datam, (retained to this day in Caſtleguard, ſaith the Gloſſe, as a Generall diſcharges a Captain at pleaſure) poſtea vere eò ventum eſt, ut per annum tantum firmitatem haberent: deinde statutum eſt ut uſque ad vitam Fidelu produceret…r: (ſo an involved condition of Loyalty.) ſed cum hoc j…re ſucceſsionis ad filios non pertineret, ſic progreſſum eſt, ut ad filios deven…ret: in quem ſc. dominus hoc vellet beneficium confirmare; (ſo now to a man and his ſon, no more:) uòd hodie ita ſtabilitum eſt ut ad omnes aequaliter filios pertineat: (not, as in Gavelkinde, diviſible, which was unuſuall in Fees: as Sir Henry Spelman in Gloſſ. p. 257. but to one and all ſucceſſively, (for ſo many lives he had, the father and all his ſons, that All might ſucceed in All:) for before onelyonly one was taken in, ad quem, &c.) Afterward (about the year 1025) the favour was inlarged: 2. Cum verò Corradus Romam proficiſceretur, petitum eſt a fidelibus, qui in eius erant ſervitio, ut l…go ab eo premulgata hoc etiam ad nepotes ex filio producere dignaretur: (Now Grand children taken in; underſtand immediately to ſucceed their Grand-Father, their Father dead:) & ut frater fratri ſine legitimo haerede defuncto, vel filius in beneficio quod eorum patris fuit ſuccedat: (now to his father immediately, ſo here in a ſecond ſucceſſion a third poſſeſſion ſecured, to a man, his ſon, and that ſons Brother; or to a man, his ſon, and that ſonnes ſon: But this held not unleſſe the firſt Donee were in the line aſcendant:) Sin autem unus ex fratribus à domino foudum acceperit, eo defuncto ſine legitimo harede, frater ejus in feudum non ſucced it; and ſo goes on to regulate and limit other remoter, or collaterall ſucceſſions, ending at laſt in, In maſculis deſcendentibus hodie nove jure uſque in infinitum extenditur. Gerardus Niger. Feud. lib. 1. tit. 1. By theſe degrees things crept up. Sr. The Ridley acknoledgeth two ſorts of Feuds, Temporall, and Perpetuall: View of the Laws, par. 1. chap 4. ſect. 2. life, ſo long as the known Miles lived, or for his ſon after him, (excluding his daughter,) though ſince the daughter was admitted becauſe ſhe might marry a Souldier, and ſo both ſhe and the ſon new admitted: It was not ſo (and the law juſt while it was) but a military Benifice, as to ſucceſſion, as an Eccleſiaſtical.33For the Lumbards, from whom the Feuds firſt came, or at the leaſt were chiefly derived from them, directing all their policy, as the Lacedaemons did, to matters of warre, had no feminine Feuds, among them; But after by proceſſe of time, there were created as well feminine Feuds, as maſculine, &c. So goes on Sir Thomas Ridley in the ſame Section. And the reaſon is given more explicite by P Rob…ff Qum foemina non poteſt ita bene defendere dominum its Bello, vel aliás ſervire ſicut vir: ergo nec feudum habebit, cùm dr…r ob ſervitium: (though by cuſtome it be in France otherwiſe:) Feud. Decl. p. 3. Septimo. The bottem of all is that of the Ruling Law: Hoc autem notandum eſt, quod licet filiae ut Maſculi patribus ſuccedant, legibus tamen à ſucceſſione feudi removentur: ſimiliter & earum filii, niſi ſpecialiter dictum fuerit ut ad eas pertineat, Gerardus Nig-lib, & tit. eiſdem, ſect. 3. And ſo 'twas in the Salike law: wherein inter caeteros ſpectatiſsimus eſt iſte paragrophus: In terram Salicam Mulieres ne ſuccedant: or as others more fully; de terra vero Solica nulla portio haereditatis mulieri veniat: ſed ad virilem ſexum tota terrae haereditas perveni…t: apud D. Spelman. Gloſſa. page 442. in vocab. Lex Salica. The meaning whereof has been expoſtulated at the coſt of Armies of men, and Millions of treaſure between us and FRANCE: a few lines are not fit to interpoſe for umpirage, after ſo many and horrible conteſtations.

p. 46Again it is ſomewhat ſpecial here, that if I have a wife, and ſhe be an inheritrix, and I have a child by her whoſe life is diſcernable by crying, that11Lex quidem Angliae eſt, ut ſi quis uxorem baereditatem habentem duxerit, vel aliam terram habuerit in feodo ratione maritagii vel alia cauſa donationis, quod feodum habeat & liberum tenementum, ſi liberos…inter ſe habuerint ex juſtis nuptiis procreatos; ſi ipſa praemoriatur, remanebit viro terra mulieris tota vita ipſius viri, ſive ſuperſtites fuerint liberi ſive mortui, dum tamen ſonum emiſerint aut clamorem, qui audiatur inter quatuor parietes, ſi hoc probetur. Flet. lib. 6. cap. ult. ſect 4. But this is only of the firſt Husband Vid. Bracton de Except. cap. 30. ſect. 7. Littleton. lib. 1. cap. 4. ſect. 35. Dr. & Stud. Dial. 1. cap.7. fol. 14. child ſhall give me the land, (otherwiſe a ſtranger) for term of my life, and it is per legem Angliae, or per curialitatem Angliae, by the law or curteſie of this place, (favouring no doubt marriage and fruitfulneſs) which if it were elſewhere and common, what means22Et eſt appel tenant per le Curtefie D…engleterre, par…ceo que ceo eſt uſe en nul auter Realme forſque tant ſolement en Engleterre. Littletou. lib. 1. cap. 4, ſect. 35. ſaith Littleton, the appropriating title, that this is done by that favour hath denomination from England? And in ſome places the husband ſhall have33Dr. & Stud. Dial. 1. cap. 10. fol. 21. half the wives inheritance with us, he ſuperviveing, though he have no iſſue, this alſo giving a right by the place which is not elſewhere.

Further the widow relict here ſhall have the44Rationabilis autem Dos eſt cujuftibes mulieris de quocunque tenemento tertia pars omnium …errarum & reneme ntorum, quae virſuus tenuit in dominico ſuo, & ita in feodo quod cam inde dotare poterat die quo cam deſponſavit. Bracton. lib: 2. cap. 39. fect. 2. ſol. 92. Vid. Flet. lib. 5. cap. 23. ſect. 11 pag. 341. Glanvrll. lib. 6. cap. 1. & cap 17. Littleton. lib. 1. cap. 5. Mag. Chart c. 7. & Chart. R Ioan. apud Matt Pariſ. ad ann. 1215. pag. 247. third part of thoſe lands had been her husbands ordinarily, and by the cuſtome in ſome County55Dr. & Stud. Dial. 1. cap. 10. fol. 21. Littleton. lib. 1. ſect. 37. half, and in ſome Town or Burrough the whole for life: It is not ſo in66Romanis non in uſu fuit uxoribus dotes retribuere: ideo verbo genuino carent quo hoc dignoſcitur: & rem ipſam in Germanorum moribus miratur Tacitus, &c. Spel. Gloſſ. in vocab. Doarium p. 216. col. 1 other places, and yet their wives are women. And this with that aſſureance that the law allows her a known77Nat Brev. fol. 6. Bract. de actione dotis, c. 1. ſect. 2. Flet. lib. 5. cap. 25. Glanvill. lib. 6. cap. 5. writ to recourt by, and de jure dotium, is a head enlarging into much of our law, whereof others have little. This I take it, is in ſpecial favour of women here, and this the beſt reaſon I have met with: and while it is ſo, there is as much right in this (the like not elſewhere appearing) as there is here for any thing in this Kingdom.

p. 47Eſcheates alſo, and ſtrayes, Fines, and Herriots (againſt which ſome keep now a grumbling that are worthy onelyonly their own low thoughts, as if all were too deep their ſhallow capacities cannot reach, and juſtice folly becauſe fools underſtand not wiſdome) the Landlords relieve, the Church-mans mortuary, a quitrent, a days work, Eſchuage,11Faldagium eſt privilegiū erigendi & circumagendi faldae ſeu ovilis per certam camporum …xtenſionem, corum ſtercorandi gratia, & gregis fovendi: Spelman. Gloſſ. In voc. Falda. p 248. It ſeems a priviledge the Lord had to pen upon bî… land all the ſheep fed in his Mannor. foldage,22A kinde of tribute paid to the Lord as head or chief, in token of acknowledgment of him. Chevagium dicitur recognitio in ſignum ſubjectionis & dominii de capite ſuo: Et quamdiu Chevagium ſolverint ſervi, dicuntur eſſe ſub poteſtate dominorum, nee ſolvitur dominica poteſtas. Bract. lib. 1. cap. 10 ſect 3. Fugitivi eſſe incipiunt niſi Chevagium annuum Domino ſuo ſolverint in ſignum ſervitutis. Flet. lib. 1 cap 7. Sect. 7. Chevage,33Atribute that Woodmongers and others, paid to the Fee-farmers of the forreſt toward the wayes. They were called Chemini, from the french word Chemin, for a way. Volumus & ſtatuimus etiam quod decima de foenis ubicun que creſcant, five in magnis pratis …ive in parvis, …ive in Cheminis exigantur. Lyndewood Conſtit. Provinc. cap. 1. Quoniam propter. Et, pax quatuor Chiminorum:—& Chimini minores de Civitate in Civitatem, leg. Edvardi Confeſſ. cap. 12. It was four pence a year for a Cart, and a penny for a horſe: due and ſo limited by Chart. Foreſt. cap. 14. in Pultons abridg. pa, 8. & vid. Matth. Pariſ. Hiſt. in Charta. R. Iohan. p. 250. Chiminage, I doubt not all theſe are as due to thoſe can claim then by law, as mony lent, the publike tribute, the landlors half year, or any thing is out of ones own poſſeſſion; though whither other ſtates have the like I know not, or what is equivalent to them, we are to walk by our own rules not by theirs, and that which here with us gives right, is enough though in other places it do not. We may ſay as well as the Empire, why not? having equal power within our ſelves to chuſe our own rules, (changing but a few neceſſary names:) Jus Quiritum eſt propriè Romanorum, quod nulli tenent niſi Quirites id eſt Romani. In quo agitur de legitimis haereditatibus, de cretionibus, de tutelis, de uſuc apionibus, quae jura apud nullum alium populum reperiuntur, ſed propria ſunt Romanorum, et in eoſdem ſolos conſtituta. Diſt. 1. cap. 12.

I might farther inſtance in ſome other, (proper rules of right for our clime) but I fear the porch too big, (which yet if it be, may ſerve for other uſes then to be onelyonly here an introduction;) wherefore but to point.

p. 48Abroad the uſe of havens,11De diviſione rerum. 1. riparum. Inſtit. 2. tit. 1. ſect 4. Bracton lib. 1. ca. 12. ſect. 6. banks, rivers, &c. is publike and unreſtrained, but with us22Sed publica haec quae totius populi atiquando fuerunt, jure noſtro ad regem transferantur: quippe qui univerſi populi at que adeo ipſius Reipublicae perſonam ſuſtinet. Qui itaque in ripas fluminum publicorum naves hodie exonerant, vectigal Regi, aut jus cjus habentibus ſolvunt. Et in flumine publico, nemo, piſcatur, qui à Rege hanc libertatem non obtinuit Cowell. Inſtit. Iur, Anglic. lib. 2. tit. 1. ſect. 4. vide Bracton. lib 2. cap. 1. ſect. 2. the Kings, (whence he requires new impoſt.)

Things33Inſtit. 2. tit. 1. ſect. 47. loſt and found the finders, but our ſea-wracks 44Cowell ib. ſect. 7. Bracton de Corona cap. 3. ſoct 4. fol. 120. Fleta lib. 1. c. 43 ſect 2 pa. 61.the Kings.

Treaſure trove,55Acquiritur dominium per inventionem, ut ſi Theſaurus inveniatur, Bracton. lib. 2. cap 3. ſect. 3. but to whom? Cum in nullius bonis ſit & antiquitus inventoris, nunc de jure gentium efficitur Domini Regis, Id, d… Coron. cap. 3. ſect. 4. fol. 120. Flera, ubi ſupra. the guift of fortune, meant for the finder, but with us the Kings.

That was no ones, the11Quod enim nullius eſt id ratione naturali occupanti conceditur, F▪ de acquirrerum dom. l. 3. Takers, (as fiſh, foul, wilde beaſts, &c,) but with us again22Bracton lib. 2. cap. 1. ſect. 2. & cap 24. ſect 1. Fleta lib. 3. cap. 2. ſect. 1. Cowell Inſtitut. loco citat: ſect 12. De feris, piſcibus, avibus illud notandum eſt: Qui imperium habet in terras & aquas ejus lege impedici poſſe aliquos, ne feras, piſces: aves capere, & capiendo acquitere eis liceat: atque hac lege etiam teneri exteros. Ratio eſt, &c. Nec obſtat quod ſaepe in jure Romano legimus, jure naturae aut gentium liberum eſſe talia animalia venari: hoc eim verum eſt quamdiu nulla lex civilis intercedit; ſicut lex Romana res multas relin…uebat in illo primaevo ſtatu, de quibus alia gentes aliud conſtituerunt. Cum autem lex civilis aliud conſtituit a eam obſervari debere jus ipſum naturae dictat: Grot. de jur. Bell. 2, 2. ſect. 5. the Kings; and ſo generally we are ruled by our ſelves: Our own law is the meaſure of our own right; we have that, and that alone, but that firm, and it is injury, and that injury alone to diſpoſſeſs us of, that our own nationall, home-binding Laws have ſetled as they have; That, is Here nothing elſe, right or wrong.

Some ſeem to go farther, in requiring to property in the Common-wealth a right in Religion; to have a right in Chriſt or none in the Creature, for whoſe ſakes is that queſtion cut. out: An dominium temporale fundetur in gratia? or as others, An gratia ſit fundamentum dominii temporalis? but (beſides that, the diſcuſſion hereof moves properly in another ſphere,) I beleeve if they be underſtood aright, their deſires may not be altogether irregular: for of that Civill Right we ſpeak of, they require and ſeem to have enough in p. 49Civill determinations. To purifie ſo the conſcience in the ſight of God, they may ſay perhaps we muſt have more; our nature amended, by Chriſt ſanctified, and by application of him himſelf owned, and ſo only to the Pure are all things Thus pure: But to peace and order and right among men, here the determinations of the lower ſcene are enough; and he breaks humane laws that couzens or ſteals what is but ſo ſetled by them; and by conſequent Gods, becauſe Mans.

It were hard to ſay, that, as on the one ſide a ſanctified man ſhould finde no more ſweet in Gods bleſſings of the ſame kinde then a heathen or a publican; ſo on the other, that any ſhould be ſo vain to think that a wicked man is thereby an out-law, having no faſter ſeat in his poſſeſſions, then that a godly neighbor may turn him our of doors to morrow, and by vertue of his ſhare in Chriſt (the heir of all things) create himſelf a principality in preſent of all the wicked mens wealth in the world. The Indian is ſure maſter of his own gold and ſpices; the King of Spain of his Indies; and a Jew or Turk of their ſeverall Owns; nor can the moſt deboiſt Ruffian amongſt us (worſe in ſome regard then Turk, Spaniard, or Indian) but be ſo true and rightfull a Maſter of his own wealth, that his moſt helliſh wickedneſs cannot turn him out of it in this world, (unleſs his prodigality do) that he ſhould be henceforth a thief of his own wine or cates, or ſo meer an uſurper that any of Gods ſervants may uſurp from him indeed, and rob him as the Iſraelites did the Egyptians in equity and conſcience. Far be this from every one has truly learned Chriſt ſo to think or do. 'Tis fit every ſwine have his own ſtye, every dog be let alone in own kennell: The grace of Chriſt teaches us to uſe our own, not cenſure others; to be thankfull for what we have, not covet what is other mens. There were that it hath been laid to their charge they have endevoured to ſubvert thoſe laws, to bring in the Civill, and do ſome ſuch things as Stephen was accuſed to ſay Jeſus of Nazareth meant, To change the Ordinances that Moſes gave them, Acts 6. 14. & vid. Cap. 21. 21. So theſe, what K. Alured, St Edward, King Edward, Henry, Elizabeth, p. 50James, and other Law-founders have with much bounty of wiſdome diſtributed out unto us: But if, this would have been ſuch a tranſcendent attempt both of folly and tyranny that it would have uſhered in more injury then ever the Conqueror could, who changed the Governor, but could not the Laws, kept and was forced to keep that body intire, only he ſet himſelf a new head at top, and would have rendred them queſtionleſs guilty of that Crimen laeſae Majeſtatis, or higheſt offence, whereof Glanvill ſpeaks in the very beginning of his Book, De nece vel ſeditione domini Regis vel Regni, leaving little elſe for a foraign Enemy to do, ſith the taking off theſe would conſequentially have taken away all things. For pretend they to amend hereby what they would, bring in the twelve Tables, the politicall part of the wiſe Alcoran, the Partidaes of Spain, Arreſts of France, or whole voluminous bulk of Juſtinian and Accurſius, there could have followed nothing elſe with us but unſetledneſs of all mens eſtates, (which are the gift of our Law alone, and by that alone guarded and preſerved) diſorder, ignorance, multiplicity, uncertainty, and to thoſe that had any thing the worſt undoing even by law, and that this ſhould ſettle them beſides their own, all they are now owners of: For new inſtruments, muſt have a new work, a new-faſhioned rule draw a new-formed line, a new Law have a new Righteouſneſſe, and ſo our Fees, Socages, Burgages, Claims, Entries, &c. would all have been put out of their old courſe, into another, that new, and perhaps not conſiſtent with our Government, perhaps, not with our ſelves; and in a word, a New right, and what were then become of the old, and All, as many as had any thing by it? Some would have ſtuck to this; others to that; another parcell to neither; a fourth (only to the right) that we had and is beſt becauſe fitteſt, and uſed, loath to ſtay in Babylon when they ſaw hopes of Sion, while in the mean time all vary, and Sion is made no better then Babylon. No whole part can tell whither to take, and unity being gone, thereby a new ſad way paved in diviſion, to war, poverty, ruine, deſolation, and by Anarchy extreme diſorder and very confuſion. Let them bear their rebuke whoſoever they be p. 51that ſhould have attempted things ſo monſtrouſly exorbitant, and full of ſin as well as injuſtice; All 'tis like would have been hereby at ſtake, if not All loſt: for our Law gives and preſerves us All, and the taking away this, or changing, muſt needs then have taken away or indangered All: According to what a Lord Chief Juſtice ſaid not long ſince, The Law is the moſt common birth-right that the Subject hath for the ſafeguard and defence not only of Goods, Lands, and Revenue, but of Wife and Children, body, fame, and life, Cook Inſtit. 1. and Bracton before, Juſtitiu dat unicuique quod ſuum eſt, lib. 1. cap. 4. All is the bequeſt of Juſtice, and the parent and guide thereof is the Law.

And thus my Porch or preparatory Preface ſeems well nigh finiſhed, raiſed upon ſix Pillars, as I take it, of firmneſſe enough, touching the nature, ground, riſe, growth, ſtrength, and perfection of ours and all Civill Rights. There may have been ſome miſtake in tempering the morter, diſordering the materials, or blemiſhing the whole by unskilfull handling, but the truths howſoever ſeem ſolid, and their uſe enough, chiefly in this, relating (for which they were given) to all follows, That, if this be the nature of Civill Right, and All mens beſt, and tythes have This, in any ones diſturbing them, he muſt needs diſturb what hath the common foundation, in with-holding them he with-holds what is due by as good Right, as any man claimes any thing by, he undermines that which is the ſtay and ſupport of his own houſe or wealth, and does what if the like ſhould be done to him, would leave him Nothing, becauſe He deſtroys that preſerves and gives to him and All others Every thing. If we all reſt upon one ſtrength, and this be it, imbarque in one bottom, ſtand upon one leg, and ſettle upon one and the ſame bough, let any Engliſhman take heed how he meddle with this common ſupport, leſt he infirm his own, and not be too venturous of the ſtrokes of his Axe, for fear of danger to himſelf, by cutting the bough himſelf in his greatneſſe, ſtands upon. He may think to pare about craftily, and with ſuch prudent caution and an eye to himſelf, weaken the whole, that there be p. 52ſtrength enough left to ſupport his Own Right: But this is neither ſafe nor honeſt: Not ſafe to tamper with a common foundation, to ſprinkle fire in the next thatch, that may catch home; to bore a hole at the other end of the veſſel where a neighbours wealth lyes, thinking his own ſafe. Not honeſt, to deſigne any other mens equally Juſt and Due rights to be fed and preyed upon, to increaſe ones own heap, by taking (or with-holding) from anothers, or to wiſh the next houſe pulled down, and the inhabitants turned to the Common, that one may take as much as he needs of the ſpoil to multiply or ſtrengthen the Studds of ones own building.

That which is juſt and Right ſhalt thou do, is the rule of the holy Law, This is neither: That thy Brother may live as well as Thou, a mercifull and conſcionable rule in Iſrael; This takes away Brother Levi's life, and leaves him a Beggar with others plenty. A Beggar is not uncapable of bounty, nor unfurniſhed with a hand to take what another ſhall arbitrarily give: But we are not ſo unacquainted with the holy Law of God, as not to know what heavy cenſures are there regiſtred againſt thoſe whoſe oppreſſion, covetouſneſſe, or with-holding what is due ſhall make beggars. Now Levi's an owner, as well as Judah, and by the ſame right as Simeon or Benjamin. The ſame equal univerſal all-giving, all-preſerving Rule of Right, the Sacred common law gives Him his, and others Theirs: 'Tis the pillar of the temple upon mount Mo…iah, as well as the palace upon mount Sion, ſtabliſhes the Church-houſe, as well as the farm or Cottage, and giving every one his own, gives the Tenth part out of the Nine, as well as the Nine whereout was taken the tenth. Quod reſtat demonſtrandum: But firſt it may not be unprofitable to recapitulate, and ſhew how one and the ſame thing may drive it ſelf through all the fore-going conſiderations: Take for inſtance a piece of gold, or Anything, and ſee how thoſe truths take place, or in this manner have their ſeverall operations, Thus.

I. In abſolute conſideration it is no ones: no more property of it by God or nature, then of the moon and ſtars: 'Tis mine, thine, his, every ones, no ones.

p. 53II, Yet it may be owned, or elſe much of the good of it would be loſt, and the Courteous intents even of ſmiling fortune rejected by a ſullen neglect of her proffered cheap favors. But,

III. Who ſhall make this diviſion? I may not, nor another, nor another, nor any Man; Therefore 'tis fit, the Law.

IV. Which varying, yet all have agreed in ſome things, and that wherein they all agree is the beſt rule of partition and poſſeſſion in the world.

V. But if ſeverall States have fancies and wayes by themſelves, not finding what is commonly good to be beſt for them, they May, and their ſeverall Owns be, what they by their ſelect rules ſhall have choſen.

VI. And particularly in England, that under ſeverall forms we have agreed to make ſeverall parts of our one Rule, the Engliſh Law. So that then the gold above was

1. No ones: Yet

2. Might be ſome ones.

3. Whoſe, not Man, but the Law gives it to. The Law, I ſay

4. Univerſall in the world.

5. Particular (over-ruling) in any place.

6. With us, Ours.

Or caſt an eye upon a piece of ground

I. That is certainly no ones by God or Nature; for ſhew me the text or clear reaſon that ſays 'tis, whoſe?

II.Do not all mankinde know, that ſeverall men may have ſeveral rights and intereſts in the ſelfſame houſe and land, and yet neither deſtroy the other? Is not the intereſt of the Lord paramount conſiſtent with that of the Meſne, and his with that of the Tenant; and yet their properties and intereſt not at all confounded? King Charles his anſwer to the Remonſtrance touching HVLL. 26. Maii, 1642. pag. 5. Yet it may be incloſed, (God forbid elſe!) For, are all poſſeſſors uſurpers? or the word of God without meaning, that ſays, Enter not into the field of the fatherleſs? ſure, he may have a field.

p. 54III. Who hath incloſed? who might? Surely, no Man. Therefore the Law.

IV. According to what Effata, or oracular determinations thereof? In the world by the rules of the world: 'Tis his who hath moſt need, who firſt entred, who does poſſeſs, &c.

V. In a region who hath bought, inherited, ſucceeded, obtained, by deſcent, donation, exchange, purchaſe, &c. according to the forms of that Region.

VI. In Our nation, who by the juſt, pertinent, and impartiall ſentence and application of thoſe all-giving forms with us it is ſetled upon, which alſo admits of ſome further variation: For,

1. By unqueſtioned maxime the whole originally was the Kings. He was Directus Dominus totius, though the Dominium Ʋtile might be transferred to others. No Alodyes left amongſt us: Independency (of all and abſolute) a Monſter. All the beams that ſhine below in the lower world come firſt from the ſun, and what is in private ſtock from the publick ſtore.

2. Yet all is not his now pleno jure, in full poſſeſſion, and round about every ways: for he hath parted with Fees, Feefarms, Serjeanties, Socages, &c. to intruſted Lords.

3. His honours have Mannors, as Chips of the great block, whereof the Maſters think they are to have ſome ſubordinate right.

4. And thoſe Mannors alſo their ſub-ſubordinate dependencies of free and copy-holders.

5. Either of which may have alſo their under-tenants, for term of years, life, will, &c.

6. And theſe alſo let out the fruit to one degree lower, him that dwels in the houſe, manures the land, and immediatly, actually uſes and poſſeſſes what ſo many others have their diſtinct ſuperior rights and titles in.

p. 55Thus we ſee what may be by ſupra and ſubſtitution, how many conſiderations the ſame thing may paſſe through (each of which gives a new face,) before it ſettle any where: and how many things we muſt have conſideration of, before we can diſtinctly know what is whoſe, and what Right, and no more, any one hath in any thing. Of all which the Baſis is ſtill the Law, wherein what footing, or rather rooting TYTHES have, is our work chiefly intended, and now next to be ſet about.