The Civil Right of Tithes, Ecclesiastical tract · Chapter 28

The Civil Right of Tithes · Ecclesiastical tract · Chapter 28

p. 230CHAP. XXX.

NOW proceed next to other helping ſupports amongſt men, firm enough in other caſes to create Right, if theſe hitherto ſhould fall ſhort of reaching that aime, though of their nature they ſeem not ſo well and aptly proportioned to ſo good an end, and they are Poſſeſſion, and Preſcription. Againſt which many things have been ſaid by many, chiefly this, That they ſeem but a kinde of neceſſary Politick devices for advantageous peace and as it were Quiet injury; ſettling many a man in that he hath really and truly no juſt title to, and by conſequent wedging Him out neceſſarily upon whom that right was devolved, or in whom it is inherent: Which yet notwithſtanding, and all that can be ſaid againſt them, they doe paſs, and are allowed, and a man is thought rightly to poſſeſs and enjoy what by ſo, and no other means is come unto him or ſeated and ſettled with him. For though it may ſeem moſt reaſonably Mine, (and is,) which another makes over unto me, or which fals to me by inheritance from another, or is eſcheat, (that is, reverſed) or purchaſed, or given, &c. wherein by the contrivances of the Law, and reaſonable devices of honeſt wiſdome, that title which was really and truly exiſtent in another is conveighed over unto me and veſted in me, and ſo I have, as 'twere by removal, His right; yet when I ſhall have and enjoy any thing upon this naked preſumption, That it is Mine, becauſe I Have it; or, I ought, Becauſe Long I have Had it; Theſe as they are with cautions and limitations ſerved in, do not onelyonly put an end to many differences, and to more advantage then p. 231what has more of ſtrict right in it; But having Law on their ſide, do no doubt bring along a true Right with them, and I may, by reaſon of that Law, (the foundation of All right,) have, enjoy, poſſeſs, defend and keep againſt all men, what is but ſo ſettled upon me, upon theſe and no other pretenſions.

The firſt of which, the ſecond ground in all of the Civill Right of Tythes, is Poſſeſſion: a good plea in other caſes, and ſo not to be deſpiſed here, which Others hold forth as ſufficient, and One may as well as another, affording this argument not eaſie to be anſwered or evaded; Tythes are belonging to our Tribe of Levi, Placet definitio Aeli… Galli, Poſſeſſio eſt uſus rei, ſi modò uſum accip as pro de…entione, five …t in his libris ſcriptū eſt duobus locis, detentatione, non pro eo quod graeci foreign dicunt, ab uſu enim hujuſmodi poſſeſſio plurimùm diſtat. Paratit. ad F. de adquir. vel amittend. poſſeſſione. Vid etiam paratit. ad Cod. lib. 7. tit. 32.Becauſe they have them; They are Theirs, For they are theirs; They poſſeſs them, Therefore they have right unto them. For it prevails, (as ſaid,) in Other caſes, why may it not alſo Here? Other Men defend themſelves with no other ſhield, being in, againſt invaſion, or recovery; therefore may theſe: And if having his little loaf in his hand made up of few grains, Gods Miniſter account it his Own by Poſſeſſion meerly, why may he not as well as his neighbour, who holds nine times as big upon this title often and by no other, and yet will not part with it?

But for underſtanding theſe things the better, and therewith ſome other, As of Donation before, it may be no leſs expedient to premiſe here ſundry things alſo of Poſſeſſion in general; The nature of it, the force it hath, the equity thereof, and ſundry other ſuch things, that ſo the generall doctrine may a little ſtrengthen that particular we are to inſiſt on.

Poſſeſſion then, ſaith Cujacius out of the Roman Gallus, is the uſe of a thing, if ſo be we take uſe for the onelyonly holding and detaining it, not for the enjoying and uſing which are different and ſomewhat farther. I underſtand by it that we call Having; as Things Corporall by taking them in our hands, Incorporeall by making uſe of them upon occaſion; which when we ſo Have and Handle the one, or make Uſe of the other, we may be ſaid to have, hold, detain, occupy, or poſſeſſe them. Which ſuch having and poſſeſſing p. 232(to note ſo much by the way, and in the very entrance) that it hath been here of and belonging to the Miniſters of ſacred things, as before, and to others in their right, is I ſuppoſe doubtfull to none but he that is ready alſo to doubt, Whether there have been Harveſts? Whether the Sun have ſhined? Whether the four Seaſons of the Year have had their viciſſitudes? or the Bleſſings of God been reaped by Men who have in gratitude returned to Himſelf ſome of the fruits of his own bounty? I except onley thoſe who are to be excepted, and they are who claim effectuall exemptions; As thoſe that ſucceed the Templars, Hoſpitallers, or Ciſtertians: that inherit a Cuſtom for a Modus decimandi, or11Our Books ſay, A man may preſcribe in modo decimandi▪ but not in non decimando. Hobart. in Slades caſe, pa. 297. De non decimando, (if in Corners this hath with us perhaps prevailed anywhere,) and ſome ſuch other: But for the general, 'tis known the uſe hath been of as wide extent to ſet aſide One, as to carry home Nine, as diffuſed as to plow, ſow, reap, and feed, And tanquam de jure Communi, as was wont to be put into the Libel for recovery, Commonly prevailing all over the Kingdome. The Lord of a Manor hath not more uſually taken up his quitrent once a year, and thereby ſecured his Right Perpetuall, nor the Landlord his Farmours rent, nor the Merchant his debt, then the Lords Miniſter theſe Dues for his heavenly work, (and he hath not been wont to require them of Courteſie, but take them as Due,) or ſomebody elſe in his right, and this wall over and everywhere without delay, diſpute, or denial. Which Poſtulatum was need to be not proved, but called to remembrance: And this done, proceeding to poſſeſſion it ſelf, the Great force it has in the world, and by conſequent may here, is not hardly diſcernable from the heeded truth of theſe following Poſitions or Obſervations:

1. That it gives Right.

2. Was the firſt Natural Right.

3. Is a very Right, able to endure examination.

4. Defending it ſelf againſt all comers.

5. Even againſt the true owner, ſometimes, (ſcil. at laſt.)

p. 2336. Againſt whomſoever at any time that hath but equall Right.

7. Againſt all the world ſtill till it be evicted.

8. And enables a man to keep what he could never have gotten.

This force it has, and it ſeems a great force; The ſimple aſſertion was firſt, It gives Right, And it does ſo: for in ſome caſes a thing is Mine, from or for no other reaſon, but becauſe I Have it. If another Had it, it were His, (as now 'tis Mine,) But becauſe I have it, it is Mine, and not His; and it is injury and wrong to deprive Me of it.11Iu…e naturali prim…evo ante quam eſſent jura civilia, id eſt, leges, fuit ſtatutum, ut quamcunque terram calcaverit pes tuus tua ſit. Gloſſ. quta naturaliter, ad F. lib. 1. tit. de adquirend. vel amittend. poſſeſſ. This Book, That Field, This Garment, or Sword, or Diamond, my Hand gives it me, I have right to it in Conſcience, becauſe I have it; and as any other thing is another mans by his plea whatſoever, ſo theſe Mine by bare Poſſeſſion. Which chiefly prevails in vacuity of title: for then, Quod nullius eſt, id jure naturali occupanti concreditur, ſays22F. de adquir. rerum Dominio, L. 3. Singulorum autem hominum res multis modis fiunt; quarundam cnim rerum dominium nanciſcimurjure naturali, &c. And of the ſeverall ſuch naturall ways of procuring one is by poſſeſſion. Inſtitut. lib. 2. tit. 1. ſect. 11, 12. Iure autem gentium ſive naturali dominia rerum acquiruntur multis modis: Imprimis per occupationem corum quae non ſunt in bonis alicujus. Bracton lib. 2. cap. 1. ſect. 2 & vid. Flet. li. 3. cap. 2. ſect. 1. Gaius, That is No ones and comes in my way, ſeems naturally to come home to Me; as Beaſts, that are wilde, Fiſh, Fowl, &c. which if I can take, no one will doubt my right to Own them. Nor skils it much33Nec intereſt feras beſtias & volucres, utrum quis in fundo ſuo capiat, an in alieno Planè, qui in alienum ſundum ingredit…r venandi aut aucupandi gratia, poteſt à Domino ſi is praeviderit prohiberi ne ingrediatur. Quicquid autem eorum coeperis, eouſque tuum eſſe intelligitur, donec tua cuſtodia coercetur. Cùm verò tuam evaſerit cuſtodiam, & in libertatem naturalem ſeſe receperit, tuum eſſe deſinit & rurſus occupantis fit. Inſtit. Vbi Supra. where: for though I might have been hindred coming into another mans Field, what yet I take there is for my ſelf, I might have been keep out, not from my fortune, The wrong was in the intruſion, not in what I have gotten. But then I muſt fully have it: For44Illud quaeſi…um eſt, an fera beſtia quae ita vulnerata ſit, ut coepi poſſit, ſtatim noſtra eſſe intelligatur. Trebatio placuit ſtatim noſtram eſſe, & couſque noſtram videri, d…nec eam perſequamur. Quod ſi deſierimus eam perſequi, deſinere noſtram eſſe: & ru…ſus fieri occupantis. Iraque ſi per hoc tempus quo cam per…equimur, alius eam coeperit eo animo, ut ipſe lucrifacret, furtum videri eum nobis commiſiſſe Plerique putaverunt non aliter cam noſtram eſſe, quàm ſi eam coeperimus, quia multa accidere poſſunt, ut eam non capiamus, quod verius eſt. F. de adquirendo terum dominio. L. 3 Sect. 1. Vid. Inſtit. Vbi Sup. & Bracton & Flet. if I wound, another p. 234take, He that poſſeſſes muſt onelyonly have the benefit of Poſſeſſion: and ſo I muſt keep, elſe I have loſt what I had gor. So in the wars,11Item ea quae ex hoſtibus capin…us, jure gentium ſtatim noſtra fiunt: adeò quidem, ut & liberi homines in ſervitutemr noſtram deducantur: Qui tamen ſi evaſerint n…ſtam poteftatem, & ad fuos reverſi fuerint, priſtinum ſtatum recipiunt. Inſtit. eod. ſect 17. Our Bracton and Fleta have alſo the ſame. Habet etiam locum iſta ſpecies occupationis in iis quae ab hoſtibus capiuntur, &c Item quae ex animantibus domin…o noſtro ſubjectis nata ſunt, eodem Iure noſtra ſunt: Idem etiam in inſulis in mari natis, & in ſimilibus, & in rebus pro derelicto habitis, niſi conſuetudo, &c. Bracton ib. And elſewhere: Poſſeſſio aliquando jus parit, & pro poſſeſſione praeſumitur de Iure, Id. lib. 4. tract 1. cap. 2. ſect. 7. fol. 160. the ſpoils of an Enemies Camp are Mine, ſo much thereof as I can lay hold of: Thoſe Captives à Capiendo, or22Inſtit. de Iure perſonarum, ſect 3. ſervi. lib. 1. tit. 4. & F. de ſtatu hominum, lib. 4. Mancipia eò quod ab hoſtibus manu capiuntur, becauſe they are touched to Property; Servi alſo (à 33Servorum appellatio ab …o fluxit, quod imperatores noſtri captivos vendere, ac per hoc ſervare, nec occidere ſolent. F. de verborum ſignif. l. 239. & vid. Inſtit & Digeſt. in locis citatis.ſervando, non à ſerviendo, from being kept, not made ſlaves of,) are all reduced within the compaſs or reſtraint of Property, to bee diſpoſed of as the New Owner pleaſes; But ſo long as they are kept again; for if they break out and return again to their former liberty, they are now again their Owne as before, and not His whoſe they were, who hath loſt that whereby he had them. Theſe things may44See Bracton and Fleta in the places …ited before. have ſome ſpeciall way of ordering with us; but then generally they prevail Thus abroad, and with Us too in ſome and moſt caſes; Nor want we inſtances of Right of Land ſo gained meerly by vertue and power of occupancy. For although all were originally in the Crown, if out, derived from it, and ſo upon extinguiſhment of the derivative title, as Eſcheat ſhould have naturally reverted to whence it came, yet in ſome caſes and by ſome circumſtances it proves not ſo, but a title may be55Chancellour Bacon gives an Inſtance, Where an eſtate is granted to one Man for the life of Another, and the firſt dye without dispoſing his Right, Nor Heir, nor Execut…r …. nor Reverſioner can have it, So it is his that layes hold of it. Vſe of the Law, pag. 24. See the example as large. gainable and tenable by Entry as they call it, and a man Have and have Right to Land meerly by Poſſeſſing it.

2. I ſaid moreover, Poſſeſſion is the firſt and naturall title: Nothing is more Naturally Mine then what I do lay p. 235hold of. Juſtinian 11Poſſeſſio appellata eſt, ut & Labeo ait, à fedibus quaſi poſitio: quia naturaliter tenetur ab eo qui ei inſiſtit: quam Graeci foreign dicunt. Dominiùmque retum ex naturali poſſeſſione coepiſſe Nerva filius ait: cujuſque rei veſtigium remanere in his, quae terra, mari, coeloque capiuntur. Nam haec protinus eorum fiunt, qui primi poſſeſſionem eorum adquiſierint, F. de adquir. vel amittend. poſſeſſ…in princ.taught me ſo, and Thence yet, what we take is our Own, as hee has from Labeo. Ecce effectus poſſeſſionis, the22Gloſſ. Dominium. ibid. Gloſs there bids us mark it, and it is remarkable: For even beaſts, we ſee, will rarely exclude the Poſſeſſour: They have onelyonly the Law of Nature, they skill no compacts or force of agreement, yet they obſerve (whence but from natural impreſſion?) for a kinde of right by Having; whence though their ravin be greedily ſet, we ſhall finde they ceaſe to purſue what they ſee another has got.

3. Yet more: this title is firm and ſolid and will endure the touch of Examination. 'Tis not a fraud or diſſeiſin, which are wrongs, and have their known remedies, but a very Right which the Law looks upon and approves, and more then permits, juſtifies and protects the poſſeſſor. If the other are once ſearched and found, they are loſt, but this how much the more it is examined and known; is ſo much the more approved and juſtified.

4. Againſt all but the true owner at firſt, though the bottome of the claim be no better then in ſome regard an unjuſt entry. The words of the Law are ſuch: Hóe 33Doct. & Stu. Dial. 1. ca 9. f. 19.that hath poſſeſſion of Land though by diſſeiſin, hath right againſt all men but he that hath right. Chancellor Bacon 44Vſe of the Law, p. 25.addeth alſo, that whether he outed any one of his quiet poſſeſſion, who is properly a Diſſeiſor, Or ſtepped in after a Poſſeſſors death before his heir, who is an Abator; In each of theſe caſes whether Diſſeiſor or Abator poſſeſſing and dying poſſeſſed, His heir hath gained the right to the poſſeſſion of the Land against him that hath right, till he recover it by fit action at the Common Law. And if it be not ſued for within ſixty years after the diſſeiſin or abatement committed, the Right Owner hath lost his right by that negligence. If either of theſe, the Abator or Diſſeiſor, be excluded by a third invader, Is not now p. 236this third perſon, a ſecond Diſſeiſor, his title good againſt thoſe before, who were no better indeed then Uſurpers? Anſw. No: For to the two former the Poſſeſſion gave, beſides the preſent Having, ſuch a Right that againſt All but the right owner it gives title to be as ground ſtill left to recover upon again: and it ſhall not be excepted againſt ſuch a man, He had no right, the thing was never His; For he Had, it Was, and He is to the ſecond Diſſeiſor an Owner and may out him, as having by his former poſſeſſion, not ſo Good, an Equall, but a Better and Prevailing title: And this in favour of poſſeſſion, which to all but the rightful Owner, gives true title, and may not be evaded or rejected. The queſtion is put by11Tract. de Aſſiſa nova diſſeiſin. cap 7. ſect 2. fol. 165. Bracton under this Head, Who may grant a Writ of Aſſiſe? (the known remedy of a poſſeſſion, not an uſurpation,) and upon Anſwer, That None ſave he that is poſſeſſed in his own right, no Guardian, no Fermour, no Servant, &c. Hee replies, But whether then a Diſſeiſor diſſeiſed? It ſhould ſeem not, for he had no title in his own right; indeed None? Yes; though not againſt the owner, againſt all elſe, and ſo is truly diſpoſſeſſed, and of his right, and may have his remedy as of a diſſeiſin: and this propter commodum poſſeſſoris, (or as Fleta, propter commodum poſſeſſionis,) and there is no exception againſt his wrongful title. Indeed ſuch a one ſhould not recover againſt the rightful poſſeſſour upon even terms, for he wanted ground to fight on, compared and conteſting with him, and ſo things muſt remaine as they are: But when neither has true right, the poſſeſſion (comparatively among themſelves) ſhall create a right with the firſt to keep as his own, or recover being out, Et Hoc propter commodum poſſidendi, onelyonly for Having.22Lib. 4. cap 2. ſect 5. pa. 217. Fleta has the ſame, and the33Bracton Tra. ſup. ca. 2. ſect. 8. fol. 161. former again, Cum neuter Jus habet, metior eſt cauſa poſſidentis: and44Vid. lib. 2. ca. 22. ſect. 1. fo. 52. many other ſuch things which I forbear to tranſcribe. All which and many ſuch other do together ſo much favor & ſtrengthen his right, who Hath, that if I am In any thing (onelyonly In) and all the world againſt me but One Man, (ſc. Hee in whom is the True right) yet I ſhall defend my ſelf againſt them All, not p. 237can be juſtly outed by any, but ſhall for Poſſeſſions ſake and Becauſe I am in, ſit faſt, (or if I am thrown out, Recover,) and this by Law, which may be bottome, good, and juſtifiable enough for me to reſt upon, becauſe it ſettles all things.

5. Moreover, againſt that one man, the true owner too in time; for 11They are the words of the moſt Learned Chancellour Bacon in the place before.if the Abator or Diſſeiſor (ſo as the Diſſeiſor hath quiet poſſeſſion five years next after the diſſeiſin,) do continue their poſſeſſion and dye ſeiſed, and the Land deſcend to his heir, They have gained the right to the poſſeſſion of the Land againſt him that hath right, till he recover it by fit action reall at the Common Law. And if it be not ſued for at the Common Law within ſixty years after the diſſeiſin, or abatement committed, the right owner hath loſt his right by this negligence. (For, 22Flet. lib. 2. cr. 60 ſect 7 p. 129.Currit tempus contra deſides & Juris ſui contemptores, as is elſewhere:) And if a baſtard poſſeſſe quietly, and dye ſo, his Children ſhall hold againſt the lawful Children and their iſſue. This ſtill in favour of poſſeſſion: and 33—Longae…im poſſeſſio (ſicut Ius) parit Ius poſſidendi, & to lit actionem vero domino petenti, quandoque unam, quandoque aſiam, quandoque omnem, quia omnes actiones in mundo infra certa tempora habent limitationem, de acquirend. rerum dom. fol. 52.Bracton agrees thereto, that long, peaceable, and continuall poſſeſſion locks the rightful Owner quite out: for there muſt be a time to end ſtrife, and he has loſt his time of regaining.

6. Yet farther: Where many titles are equall The Poſſeſſours is Therefore Beſt; and if the ſcales hang even, the Advantage of Being in ſhall ſway the Right alſo to that ſide where is the Poſſeſſion; Not onelyonly the Having but the Right: For it muſt be always a better title muſt evict that which is, as if I have footing any where, it muſt be a ſtrength whoſe Greater power ſhall out me, and take poſſeſſion of my room. Hence the44Reg. Iur. Canon. 65. Canoniſt: In pari delicto vel cauſa potior eſt conditio poſſidentis: In equality of ſtate the poſſeſſours is the better. And the55F. de diverſis Regalis Iuris antiqui, l 170. D…m quaeritur d… damno, & par utriuſque cauſa ſit, (one muſt loſe,) quare non potior ſit qui tenet, quam qu… perſequitur? de verborum obligat. L. Si ſervum Strchiu. n. Sect. Sequitur. Civilian: In pari cauſa poſſeſſor potior haberidebet: much to the ſame. And p. 238when with us one contended for a Wardſhip, and one poſſeſſed, upon equal Right neither ſhould have been outed, and then He was well enough was in, He kept what he had. For, 11Bracton l. 2. cap. 38. Sect. 5. f 90.Non ſufficit quòd petentes probent ſe jus habere, omnes, vel quidam eorum, ad hoc quod auferatur poſſeſſio à tenente, niſi ſit qui probet ſe majus jus habere: Paritas enim juris non aufert ſeyſinam a tenente, propter commodum poſſidendi, & privilegium poſſeſſionis. A ſtronger weight muſt be to fetch up the Scale when a Poſſeſſion is ſettled any way: a parity or equality of Right leaves the thing onelyonly where it was. Again, if an Action be begun onelyonly upon pretence of 22Id lib. de Exception. ca. 19. Sect 6. f. 418. Et ſi uterque Baſtardus fuerit, tam petens quàm tenens, & petens Baſtardiam objecerit tenenti, ſi tenens replicando dixerit petentem eſſe Baſtardum, oportet petentem ſe do cere legitimum; alioquin nihil capiat, cum melior ſit in hoc caſu conditio poſſidentis, &c ib. Sect. 3. And ſee alſo before the very end of the Book de Aſſiſa mort. Anteceſſ. Agreeable with Flet. lib. 6. ca. 39. Sect 7. p. 433.Baſtardy, and the Defendant put in his Recrimination; The other is what he Accuſes; This Plaintiff muſt both prove his own legitimation, or elſe all is well again, and ſhall continue as it is, and which is more, is Therefore well Becauſe it ſo is, unleſs there be a greater ſtrength of Reaſon to alter and remove. For the Law ſtill favours that which is in Being, which ſhall not be altered for equally good, or unleſs for clearly better; as an Army of ten thouſand upon equal Advantages in Nature is able to ſtand upon the defenſive againſt a far greater number, a like force is not like to remove it. Farther; What muſt be done if a man fell his Right to two men, or a pretender his coloured ſhew of Right for Right, Who ſhall then obtain? The33Bracton l. 2. c 18. Sect. 2. f 41. Flet. li. 3. cap. 15. Sect. 8. p. 202. Rule is given:

Rem Domino vel non Domino vendente duobus, In jure eſt potior venditione prior.

The firſt Buyer had firſt Right, and ſhall carry it: agreeable enough to that of44If a man ſell to two perſons, who ſhall enjoy? Iuhanus libro ſeptimo digeſtorum ſcripſit, ut ſi quidem ab eodem non domino emerint, potior ſit cui priorires tradita eſt; quòd ſi à diverſis non dominis, melior cauſa poſſidentis ſit, quam perentis, quae ſententia vera eſt. F. de Publiciana in rem l. 9 Sive autem Sect. Si duobus. Et cum de ſucro duorum quaeratur, melior eſt conditio poſſidentis; de diverſis reg. Iur. l. 168. Sect. 2. Ʋlpian in the Civil Law. Nay, ſometimes this carries a victory where there is no faſt ground to fight on, and maintains the field ſtoutly, having onelyonly this to ſay, I am there. …Tis in the caſe where he that has no Title, ſues againſt him that has but as much, and in poſſeſſion, where can ſcarce be compariſon, neither having any thing, and yet the Poſſeſſour Thereby has enough to carry All.55Bracton fol, 161. Quia cùm neutor Jus habeat, melior eſt conditio poſſidentis. p. 239And no marvell again then, if the11Et quia longè commodius eſt poſſidere, quàm petere: ideò plerunque & ferè ſemper ingens exiſtit content io deipſa poſſeſſione. Commodum autem poſſidenti in co eſt, quod etiamſi ejus res non ſit qui poſſidet; ſi modò actor non poterit ſuam eſſe probare, remanet in ſuo loco poſſeſſio; prop…r quam cauſam, cùm obſcura ſunt utriuſ que jura, conrra petitorem judicati ſolet: Iuſtit. lib. 4. tit, 15. ſect 4. ver Retinenda. Emperour obſerved ſo much Contention to be for Poſſeſſion, as that would ſometimes winde in all the reſt, and carry the whole buſineſs. Theſe are the favours of Poſſeſſion when in a double claim the meaſure of Right is on both ſides equal; which ſeems to be grounded upon that repeated, and ſo much varied Axiome both of the Canoniſt and Civilian, or rather upon that reaſon upon which they both are founded, In favour of Peace, to keep that in being, that is. For if quarrelling men ſhould be hearkened to in every motion, and but upon equal terms be heard with no diſadvantage to him that begins the Fray, little would ſoon be left quiet among men; our nature is ſo peeviſh or weak, and many or moſt herein ſo very natural, that Contentions would multiply beyond either doubt of reaſon or hope of end, if there were not ſome publick devices and honeſt diſcouragements invented to choke and ſtifle them at the very beginning; whence prudently he that firſt ſtirs is onelyonly aſſured of diſadvantage to begin upon; the uneven Ground muſt give him ſo much the worſt at firſt, that if his Plea be no better then his Antagoniſts, it is in no ſort good. If his Antagoniſts be but as 22Cum par delictum eſt duorum, ſemper one. ratur petitor, & melior habetur poſſeſſoris cauſa. F. de diverſis reg. Iur l 196.good as his, it ſhall be better. For, In 33Fleta lib 2. cap 63. ſect. 11. pag 137.paritate Juris prior admittitur defenſor quàm pars actrix: In equality of Right none ſhall be diſpoſſeſſed of that he has. And44F. de diverſis regulis, l 167. Favorabiliores Rei potius quam Actores habentur. If there muſt any favour be ſhewed, it ſhall be to the Accuſed: and if the Judges55De rejudicata. l. 38. Inter pares. cannot agree or be equally divided, He that is impeached ſhall be quit, though he be guilty; for if the Scales hang even, of proof and66Cum ſunt partium Iura obſcura, Reo favendum eſt potius quam Actori: Iur. Canon. Reg 11. probability, 'tis preſumed for him that Has innocence: ſtill and in all looking as it were with an evil eye upon thoſe that move complaints, and in favourable ſuppoſition of that well that is; Hanging back with might and main from alteration upon equall ſtrength (77Reg. Iur Can. 56. In re communi potior eſt conditio prohibentis, both muſt agree to ſtirr, or the thing ſtands) and One ſhall never draw forward ſo powerfully to alter and change, that which is, as another with equal ſtrength ſhall hold back to ſtay things where they be, becauſe Melior eſt conditio poſſidentis; if both be, or ſeem good, the Poſſeſſors title is thereby p. 240beſt. Peeviſh malice is apt to cheriſh melancholick Dreams of black Diſtempers every where, but the ſerenity of clear and firm wiſedom is always mixed with that goodneſs that thinks moſt things well. That deforms all for amiſs, that (looking on with an evil eye) it ſees not well. This charitably inclines to believe well of all it findes not evidently ill: whence with averſation to change as little alteration is made as may be without apparent wrong. That muſt be not ſo good but better and truer which is promiſed, and he that is in poſſeſſion of 11In eo quod vel is qui petit, vel is a quo petitur, lucrifacturus eſt, durior cauſa eſt petitoris. F. de diverſis reg. Iur. antiqu. l. 33.wealth or innocence, unleſs there be greater ſtrength to aſſail and remove then is to defend, let him keep faſt and ſure without any moleſtation in his preſent poſſeſſion. But go on;

7. I ſaid further, The Plea of Poſſeſſion is againſt all the World everlaſtingly good till it be legally and orderly everted. So ſaid22A London Minister in his Reſolution a▪ Doubt, printed with Sir Henry Spelman of Tythes. l. 19. one in this very Caſe of Tythes not long ſince, honeſtly, judiciouſly, truly and very prudently: nor is it but fit it ſhould be ſo: for if a man might be preſumed wrong in, at any time he might be caſt out: if one, then another: if by one, then by another: and ſo no one from any one could be ſafe at any time, or any thing conſtant, ſettled ever; no remedy therefore but all be judged right that is, and till orderly proceeding do caſt out of doors, a man be preſumed juſtly in his own home where he is. 'Tis one thing to have a Benefice void in Law, another thing but voidable, ſayes the Canoniſt; the murtherer is not to be hanged preſently, though he deſerve death, and muſt die, and though I am in condition and may be caſt out of my houſe, till by order I am ſo I ought to be ſafe and faſt there. Do not33Hooker in his Preface. Sect. 6. Equity and Reaſon, the Law of Nature, God and Man, All favour that in being till orderly deciſion of judgement be given againſt it? ſaid he, whom ſome count next to an Oracle; and Praeſumptionibus ſtandum est, donec probetur in contrarium; Things are to be thought well, till the contrary appear; and where any thing is under the God of order, 'tis a fair likelihood it ſhould be there, and we are reaſonably and piouſly to believe it ſo, till new light ſhew it clear to the contrary. But one word more, and it is, That Poſſeſſion ſhall in ſundry Caſes help a man to keep what by equal ſtrength of title he ſhould never have been able to p. 241get. If he were out he ſhould never make way to get in, but being in he ſits faſt, and out no man ſhall ever be able to put him. For in many Caſes11Frequens enim eſt apud Iuriſconſultos aliquem eſſe tutum exceptione, qui non ſit ipſo Iure. Io. Calvin. Lexic. Iuriſp p. 731. there lies Exception (a ward to defend) where there lay no Action, (or effectual means to aſſail) A man may have power to keep another out, that could never (there) himſelf have got in; defend that Caſtle he could not take, and bolt his Adverſary out by help within effectually, where himſelf could never get in, if he were out, nor can be put out, Therefore, becauſe he is in. The22Bracton. l de Action c. 12. Sect. 4, f, 113. Father of our Law ſpeaks to this purpoſe: Item, & eſt alia ratio, quòd qui rem petere voluerit, ſi cautè ſibi providerit, videat primo an aliqua ratione nanciſci poſſit poſſeſſionem: quoniam commodius eſt poſſidere, quàm petere. Multi enim ſunt qui ſi poſſeſſionem habuerint, ſe defendere poterunt per exceptionem: Si autem fuerint extra, vix aut nunquam ferè recuperabunt per actionem. And theſe are the benefits, priviledges, and advantages of Poſſeſſion, (no marvel if before obſerved the reaſonable object of great ambition;) for it gives Right, the moſt natural, of proof, againſt all but one, and him at laſt. It ſwayes the Scale in an equality, is ſafe and juſt, till it be evicted, and keeps a man whether he could never have been advanced. Object. Which if all it ſeem unreaſonable on the Poſſeſſours part, as giving advantage to the rich partially and ſettling men by Law in that they have no right to, as like ſometimes it does;

1. Anſw. Sure, we ſay, firſt, the Law is never unreaſonable, but the defect is on our part, who do not apprehend that Reaſon is: the Well is deep, and we want to draw of plenty.

2. And for the unreaſonableneſs here, it is without cauſe imagined. For it may be conſidered, and muſt be granted, 1. That the Stage is open, what is or is done in the World cannot but be known. 2. Men love their own. 3. Are apt to make out for it. 4. Have means to come by it. 5. In the honeſteſt, ſureſt, and beſt ways that could yet be found of Law. 6. Whether in Poſſeſſion or Action what is not found amiſs, is reaſonably to be judged well. Now theſe things preſumed and known, and withall it being ſeen, ſuch a one Has; how unlikely is it but that he ſhould and ought to Have, elſe we ſhould not ſee him Have? or if the right were in another, the Poſſeſſion, which p. 242he cannot but love, muſt bee with him? If there were no Courts, or preſumed Partiall, or men negligent, or the whole frame of things compoſed toward injuſtice, to make or let things alone ill, or not well, Then might we doubt reaſonably, and againſt the Poſſeſſour cheriſh vehement ſuſpition: but nothing being more evident then the above mentioned & to be granted aſſurances leading directly to the contrary, How can we but judge for what Is? and that the Law is reaſonable favouring the Poſſeſſour as it does; (Praeſumptionibus ſtandum est donec probetur in contrarium, as before:) and that he hath right, for if he had not, as things are, hee ſhould not have? I will not deny but ſome hard meaſure may be hereby meted out to ſometimes, or perhaps wrong, But this in ſome degree may well be allowed the Soveraigne Authour of All our right: Better this then worſe, (as worſe would be if this were not,) and ſith of two this way is the beſt, reaſonably is it choſen though it be not in all regards ſo good as it might be.

This of Poſſeſſion in general, and our loved Law about it, (as in every thing elſe, ſo here very amiable, and as hee ſaid of truth, Si oculis cerneretur humanis admirabiles excitaret amores.) But now ſome one may ask, what is this to our argument? That was of Tythes: How are They advantaged hereby?Rom. 3. 2.Rom 3:2 I anſwer, with the Apoſtle, foreign; Much, Every way. Be it firſt reſumed, that They are Poſſeſſed: It is not more known that men have Harveſted, Or plowne, or ſowne, or their Garners been madeful and plenteous with all manner of ſtore; but with equall certainty and evidence this advances it ſelfe in the face of the world, and he is ſcarce acquainted out of his owne Pariſh, nor in his own Pariſh in England, to whom this is not known by evidence certain and notorious. This then laid in to the former, I infer: What hath been ſaid of poſſeſſion, what can be more ſaid of it, hath it not All force here? Doth it give right, right alone, full and natural right, the moſt natural, the Law looking on, approving and conſenting, and ſhall it have no operation here? Shall the Churches caſe be ſingular, & the Miniſters of Jeſus Chriſt have no benefit of common p. 243axioms, no fruit of thoſe are to all other fruitful operations? Shall they have no favour by that All have favour, no benefit by that All have benefit, the Having their Own in their own hands? and ſhall that helps others many ways, advantage them no ways? Shall men look upon ſecuring enriching Poſſeſſion, ſhall wiſe men look upon it? Shall the quinteſſence of wiſdome in moſt reverenced Laws, and thoſe diffuſed all abroad have conſideration of it? Nay, ſhall that little meaſure of knowledge imparted to tame Beaſts, inable them to eſpy the good, and prompt them to obſerve the Law and order of it? And ſhall onelyonly in one caſe the poor Servant of God, that ſecludes himſelf from all the world to wait on his Lord in the Temple, nor for his own ſake, nor for his Maſters ſake partake of the common benefit of the Sun-beams as it were, that ſhine cheap to all others to their comfort and benefit? To keep him in that he has, to preſerve him from injury and ſpoil, to ſecure his dear Owne, to render him but ſo much regard from his fellow as one brute creature gives another, whith will not lightly ſnatch the prey ravenouſly out of his fellows mouth, yet more unreaſonable men will! Will they? (and plot to undo thoſe that dare but mutire contra?) take away, or keep away I ſay, from their Brother, Neighbour, fellow-Chriſtian-ſubject, and Gods Miniſter his rightfull poſſeſſion! without regret! without mercy! caſting him out of the vineyard, and as good as ſlaying him! for to ſtrip is next to ſtarve, and that worſe then to kill;) not dreading to act over again the mighty mans part againſt poor Naboth, who had but a little, yet he muſt not keep that; He that has nine for one already, muſt have his Tenth alſo to make elbowroom for his pleaſure, or content, perhaps for his Riot and Senſuality. Can this look like good, Chriſtian, or well-pleaſing in the ſight of God or man! Is any unrighteouſneſſe, and this not unrighteouſneſſe! Is any thing unequall, and this not unequall! Is any thing with impious rude and uncivil, and is not this of the worſt ſort of impiety joyned with incivility and barbarous cruelty! Every man claims his Property, Every one owns his Own, and ſhall not Ones? Muſt he alone be excepted? Every one has benefit by it, comfort from it, with expectation (well enough agreeing) p. 244of joy in the world to come; Shall one ſort onelyonly be pent up to faſt or feaſt himſelf with his ſpiritual apprehenſions, comforting no higher then with the expectation of the world to come, denyed his own bread here in a Land flowing with milk and honey, to all other the joy of all Lands? If there be no due, I ſay nothing: If there be, I could ſay no leſs: There is ſomething of Juſtice due to Truth, and the ſeriouſneſſe of things ſometimes calleth for ſober vehemency. The Law is every ones birth-right: The Husbandmans, the Labourers, the Tradeſmans, the Beggars: Soli ex omnibus Clerico commune jus clauditur! as ſpake S.11Ambroſ. li 2. Epiſt. 12. tom. 5. pa. 98. Ambroſe upon like occaſion, ſhall they alone that wait on the King of Heaven, have no benefit by Imperial Conſtitution! The tenderly regarded Church was wont, and even by judgement of the Law, to be compared to a22See before p. 61. & Brit…n. Eccleſia fungitur vice minoris, meliorem poteſt facere conditionem ſuam, deteriorem nequaquam: fol. 143. cited by Cook Inſtit. 1. fol. 431. & vid. Bract. de acquirendo rerum dominio: l. 2. c. 5. ſect. 5. &c. 15. ſ. 1. In proximis infanciae propter utilitatem eorum benignior juris interpretatio facta eſt. Inſt. l. 3. de inutilibus ſtpulation bus. ſec. ſed quod diximus. Pupil, (under age and ſubject to wrong) As much religious Charity or demonſtration of true Chriſtian piety to be helpful to her weakneſs, as to relieve a fatherleſs childe, wherein33Pure Religion and undefiled before God, is, to viſit the fatherleſs and widow, &c. Chap. 1. ult. S. James placeth the power of that Religion that is Pure: Are things ſo much changed? No, they remain the ſame: Or, are wiſe mens pious thoughts ſo much altered, their Pure Religion corrupted, themſelves ſet upon Pelf and Mammon, yea, ſpoil and wrong not declined for conſcience ſake, that they dare invade anothers, Religion inſtructs or permits them to take from Religion, ſtrip this Orphan-Church, withdraw from her Miniſters, force from their hands, and extort and wrench their very meat out of their mouths, I mean in their rightfull dues, held back, grudged, or ſqueezed from them by fraud or force? Muſt not Gods bright honour be darkned, if his Lights goe out? Muſt they not goe out, if the oile be taken from the Lamp? Can it bee there put without the Levites help? and how can they attend to do it, if that which the Laws of God and man have ſettled upon them to live on, (in equality of ſtrength for right with all other Tribes) be ſurreptitiouſly or violently taken or withheld from them (for He may ſtarve me as well that gives me not my allowance of meat being appointed ſo to do, as he that takes it away from me,) and they have no benefit of Law, no not of that whereof all the world hath benefit, and by Law, I may keep mine Own that p. 245I have in Poſſeſſion. Heed every ſyllable of which propoſition, ſtriking in with the intereſt in common of every One man in this Nation; and if it be a very ſmall thing now that Poſſeſſion may not be ſtood upon by ſome, but they turned out of theirs, or it be queſtioned whether it may be withholden, who knows how long it may be ere others—&c. But I forbear. I ominate no ill, I wiſh nothing but good, I pray they may enjoy their Own who grudge, or quarrell, or want but leave to withhold other mens; OnelyOnly I fear that Circular Curſe which hath11For it is foreign: a demonſtration of Heaven a …ſtice, or a ſign or example of it thus to do: foreign, to return Affliction to the Afflicter, or One for Another, 2 Theſſ 1 5.2 Thess 1:5 uſed to come about, which alſo I invert into a hearty prayer: Let not, O Lord, the Extortioner conſume all that They have22Pſal. 109. 10.Ps 109:10, Nor the ſtranger ſpoil their Labor. Hoc avertat Deus. foreign. Abſit. Amen, Amen.

Object. But here comes a great Objection to be anſwered, How the Churches Perſon or Man, in the ſenſe before, can be ſaid to be poſſeſſed of theſe things, ſith they are known to be in anothers, the Husbandmans poſſeſſion? He plows, and ſows, and looks to, and Has: Much good do it you, ſaith he then, with your part, ſith I have nine and the Tenth, As was jeſtingly put upon the Sophiſter, who when he had with much ſubtilty of Syllogiſme proved two egges three, was bid take the third for his ſupper. Anſ. Nay, not ſo neither: Here is more reality, a poſſeſſion (or quaſi poſſeſſion) of theſe things, beyond fancy or ſpeculation: Not of the things indeed ſtrictly, but of the33Is qui actionè habet ad rem recuperandam, ipſam rem habere videtur. F. de diverſ. regulis. l. 15. Liberty and Right to take them up, and that is poſſeſſed continually, even when the things themſelves are not: As a Lord is poſſeſſed of a Quit-rent ſeven years together, and yet he receives it but once a yeare, his right is inherent when the power is not uſed: Or, as a man poſſeſſes a way over ſuch a ground, not by the Land it ſelf, but by the leave, he may when he will, and will when he liſts, and that liſt comes as often as there is occaſion, Thus to make uſe of the Land for his Service. For underſtanding which things the better, we muſt have recourſe to a known diſtinction, even in Law, or a ſeparation or ſorting out poſſeſſions into two kindes, of Rights, and Things; Corporeal, and Incorporeall. The one (Corporeal) are poſſeſſed but by graſping, or claſping the Things, as in our hands, &c. The other p. 246Incorporeall (the Rights) are enjoyed, even in the uſe, or having uſed, and ſo continually enjoyed, even when the uſe it ſelf (the fruit) is not. As the Patron of an Advowſon in groſs, 1. Has never the Glebe, nor Church, nor Tythes, nor any thing ſeen: 2. Nor has (it may be) preſented theſe 20 years paſt, or for theſe 20 years to come may not, yet ſtill all this while he hath ever a Right to preſent, (if11Vid. Bract. lib. 2. cap. 23. ſect. 3, 4. & Flet. l. 3. cap. 15. ſect. 16. ever he preſented, or had right, which right is lieger dormant with him continually, till he draw his power into act, as he does when is occaſion, reaping ſome fruit of that right which was though ſeldome uſed, inherent continually: Even ſo the occaſionall Receiver of Tythes, it may be once a year, or whenſoever, has ſtill Jus ad rem, that is, to the taking them up when they ſhall be, which is the fruit, Though not Jus in re, the continuall actuall perception of them: In ſhort he is poſſeſſed fully and clearly of a right to them all the year, but he reaps the fruit of this power onelyonly in the fruits of Harveſt. Much is ſaid of theſe things both among our Lawyers and the Civilians; But this may clear the thing, how the proprietary hath continuall poſſeſſion of his right in the interception of uſe of his power, and yet always leave and power to uſe it when there is occaſion. Object. And this alſo may prevent another doubt wil ariſe anon about Preſcription, which is always founded in poſſeſſion and more, even a continuance, and how can this be in the interruption of taking up theſe dues but ſeldome and as is occaſion? Anſw. Yes: This may be well enough: for without Interruption, Ever, there is a perpetual right of taking them up when they ſhall ariſe: a continuance of claim though the things ariſe not to be claimed.

But it may be replyed to both, Reply. Theſe things are corporal, viſible, quae tangi poſſunt, within reach of All the ſenſes; And how throng we them up then into that notional airy ſpeculation of a right in the clouds;Solut. Such Things ſhould be Poſſeſſed actually, or they are not within the Claim of Poſſeſſion. For a22The redouble upon that is given in anſwer to an anſwer: a term familiar in Law. Ad replicationem vero ſequitur triplicatio, & ad triplicationem quad…nplicatio (one rejoynder farther) ex cauſa, &c. Bracton de Except. cap. 1. ſect. 4. ſo. 400. & vid. fol. 428. & fol. 242. Replicatio eſt, &c. & contra replicationem datur triplicatio Reo, & iterum quadriplicatio petenti. Flet. lib. 6. cap. 36. ſect. 10. pa. …8. Triplication to which reply, Yes; ſo they may p. 247indeed; The Things may be ſeen, but their Right is inviſible: as a Church may be ſeen, the Glebe is tangible, but the Right of Advocation thereto is, what? Ask, who ever11Quamvis Eccleſia ſecund …t quod conſt tuitur lignis & lapidibus, ſit res corporalis, jus tamen praeſentand… erit incorporale. Bra. fo 53. had it in his hand, or can tell who ſaw it, or where it is. The 22Inſtit. lib. 2. tit. 2. de…rebus corporalibus & incorporalibus.Emperour has fully ſatisfied this point; Let patience bear with a little more length then ordinary in tranſcription, becauſe it tends to illighten all before: Quaedam praetereares corporales ſunt, (ſaith he) quaedam incorporales. 1. Corporales hae ſunt quae ſui natura tangi poſſunt: veluti fundus, homo, veſtis, aurum, &c. 2. Incorporales autem ſunt, quae tangi non poſſunt: qualia ſunt ea quae in jure conſiſtunt: ſicut haereditas, uſusfructus, uſus, & obligationes quoquo modo contractae. Nec ad rem pertinet quod in haereditate res corporales continentur. Nam & fructus qui ex fundo percipiuntur corporales ſunt, & id quod ex aliqua obligatione nobis debetur, plerunque corporale eſt; veluti fundus, homo, pecunia. Nam ipſum jus haereditatis, & ipſum jus utendi fruendi, & ipſum jus obligationis incorporale est. 3. Eodem numero ſunt jura praediorum urbanorum, & ruſticorum quae etiam ſervitutes vocantur. And the ſame is alſo the nature of this Right; Though the Things themſelves admit poſſeſſion as viſible, tangible, yet the Title to them is in nubibus, a conceit, or ſuppoſition of the Law, without any ſenſible exiſtence; And we may not argue from a Thing to a Title, from Land to an Inheritance; for they come under ſeverall conceits of the minde, and muſt be cloathed with ſeveral expreſſions, and though they are about the ſame thing, yet they are not The Same thing, nor admit the ſame words and conſiderations. So that it remains then, Tythes may be truly poſſeſſed, even when they are not, that is, A right to them againſt they are or ſhall be; That quaſi poſſeſſio is enough to go along with the meaſure of time in even paces to be a ground of Preſcription by that continuance; and though the things themſelves may be ſeen and poſſeſſed Corporally, yet the Right cannot, nor is expected ſhould. Be ſure of this; That if the Lord of a Mannour, or that higher of an Honour, a Patron of his Advocation, or Copy or Free-holder have right or poſſeſſion of any thing they have, the Corporation of Publick Sacred Miniſters p. 248has as certainly poſſeſſion preſent and continuall of Tythes in the ſeverall Truſtees or Perſons, of or for that Corporation, which ſtand forth to Act for it, being a thing otherwiſe onelyonly in Nubibus and conſideration of the Law; That Right is veſted in Them while they live; When they die the Law has provided them of a Chain of never failing ſucceſſours to ſupply their mortality; Thus it has been, Thus it is, Thus it may be if Juſtice may be ſuffered to have its courſe, and innocent forms of Juſtice not diſturbed by parcimony and improvident troubleſome folly; and Thus is Religion, and with us the Rule thereof, the Bible provided for and poſſeſſed of (in its publick Miniſters) ſufficient, outward, viſible ſupport to the end of the world. O Chriſtian, if thou be, Think of this one word; What it is to Wrong the Righteous, to dispoſſeſs innocent poor Naboth of the inheritance of his Anceſtors, to thruſt any Poor man out of his Own, or get or Wiſh any helpleſs juſt man out of his Due and lawfull Poſſeſſion! If thou be ſuch, think of this, O Chriſtian!