The Civil Right of Tithes, Ecclesiastical tract · Chapter 30

The Civil Right of Tithes · Ecclesiastical tract · Chapter 30

p. 263CHAP. XXXII.

IN Whoſe right Man hath been Long poſſeſſed too: through the continuance of ages and generations: for this is no device of yeſterday, like to change to morrow, but ſuch as has already out-lived peace and war, troubles and conqueſts; yea, the revolutions of all ſeaſons, of winter and ſummer, health and ſickneſs, corruption and reformation; Nor from the darkeſt remoteneſs of any Chriſtian days, does ſhew of any other maintenace appeare for Gods family but this, which hath bin the ſubſiſtence of his workmen all along that have laboured in his harveſt, and bin maintained hereby, without which they could not have ſubſiſted nor have laboured. As if Providence had intended by this ſolitary inſtance to furniſh us with one very good argument for Expedience of continuance, Becauſe the world could yet give example of No other, At leaſt ſome cauſe of doubt there Might be and Reaſon to fear whether Any other would do ſo well, becauſe none at all had yet been tryed. For many things ſmile with very much content and pleaſing flattering delight upon the nimble working fancies of buſie bold undertakers, Who when they have caſt and contrived ſuch a thing ſhould be; give themſelves leave to be perſwaded preſently it ſhall, and what hath been moulded in their working fancies (commonly attended with weak Judgements) may eaſily be made out into Exiſtent Realities, for which their quick wits are ſoon able to afford them arguments enough: But when they ſhall come to reduce their ſpeculations to practiſe, and give life to their pregnant and very Happy conceptions (as they think) ſetting the whole frame of their new and unexperienced devices to move forward upon all thoſe neceſſary wheeles their fancies had ſoon made, and now muſt be made out to keep their Projects a going, Many a doubt ſtarts out ex improviſo, Many a rub is caſt in the way of their p. 264ſmootheſt and evenneſt moſt probable deſignes, Many an incongruity ariſes to disturb and croſs their promiſing and moſt handſomly and univerſally complying expectations; Many a ſowre and unlooked for oppoſition to make the plot relliſh of Humane, whatſoever hath been the beſt fruit of Mans contrivance, accompanied as it is with manifold Humane infirmities: Whence ſome wiſe men have declined nothing more then Change, accounting it a good part of their beſt Wiſdome to Vary as little as may be in things of waight, yea to let things quietly and upon deliberation alone with Some inconveniencies if but Tolerably Well, not onelyonly becauſe of the Charge and trouble, but alſo that manifold Uncertainty will always follow Change, (as we are able to make it,) taking that Is, though preciſely and purged from all inconveniencies None of the beſt, and venturing with choice and moſt ſatisfaction of reaſonable deſire along in the trodden, though ſomewhat uneven path, becauſe There they can deſcry the feet of Sundry Paſſengers that have Uſed to goe before them. Experience is among the greateſt Securities of Hope; Duely applyed it gives as much toward Aſſurance as almoſt any thing, that What Has been ſhall Be; As on the contrary dark untrodden wayes have Wiſe mens jealouſies always hanging over them, and perillous innovations been by them both ſhunned and feared: Foraſmuch then as Chriſtian Publique worſhip hath (with us) had little other ſupportation then this Hitherto, and Many think No other will hold, This may affoord at leaſt a Topicall argument for Continuance; that What hath been May, becauſe of none other the world hath had any of the certainty of Experience.

And this ſtep advanceth us fitly to the laſt plea of Preſcription, and that confirmed by what it had its firſt ſtrength from, ſuch continuance of Time as doth more then manifoldly double and treble that Time of Having, which was ſimply neceſſary to Preſcription; (as each pillar before had ſome additionall ſtrength:) Which to underſtand the better, and ground all the firmer, it may be expedient, as in them, to premiſe ſome things of the doctrine of Preſcriptions in generall; for this p. 265will be the more ſolid and able to endure examination, if we ſhall not fancy to our ſelves, any thing, but take that meaning thereof here, that others have both taken and given.

Mos 11Decret. par. 1. diſt. 1. c. 4.eſt long a Conſuetudo de moribus tantummodo tracta, I begin then with that of Iſidore in the Canon: & 22Ca. ſequ.Conſuetudo eſt jus quoddam moribus inſtitutum, quod pro lege ſuſcipitur cùm lex deficit: Combined, as it were, one in another, and are both in effect, Ʋſage ſtrengthened into a Law. Of which Law, if there were never a word in this world, nor Scriptum eſt had ever dropped from any learned mans pen, or publique vote to bear Umpire or decide doubts, yet if mens forwardneſs ſhall take up, and Uſe continue, ſome men goe before and others follow in any good way. This Continuance by degrees grows up into a Law, (eſpecially in England) and what is warranted hereby is lawfull enough; future Travellers may keep that rode juſtifiably and without controll, becauſe they can urge they ſee the print of others footſteps which have uſually heretofore gone there before them. I ſaid, eſpecially in England; for here ſome peculiar influence is from Cuſtome; Our law ſeems much made up of it and more then other, ſo farr that whether it or law ſay the ſame thing is not much materiall with us as to credit or validity. Conſuetudo verò pro lege obſervatur, in partibus ubi fuerit pro more utentium approbata, & vicem legis obtinet: Longaevi enim temporis uſus & conſuetudinis non eſt vilis authoritas, ſays33De diviſione rerum, c. 3. ſect. 2. Bracton: It is as ſtrong as Law. And44Id c. 1. ſect. 2. before, Cùm autem ferè in omnibus regionibus utantur legibus & jure ſcripto, Sola Anglia uſus eſt in ſuis finibus jure non ſcripto, & conſuetudine. In ea quidem ex non ſcripto jus venit, quod uſus 55It follows there: Sed abſurdum non erit leges Anglicanas (licet non ſcriptas) leges appellare, cùm legis vigorem habeat, quicquid de conſilio & de conſenſu magnatum & reipublicae communi ſponſione, authoritate regis five principis ptaecedente, juſtè fuerit definitum & approbatum. Sunt autem in A…glia co…ſue…ud…nes plures & diverſae ſecundum diverſitatem locorum: Habent enim Anglict plurima ex conſuetudine, quae non habent ex lege: ſicut in diverſis Comitatibus, Civitatibus, Burgis & Villis, ubi ſemper inquirendum erit, quae ſit illius loci conſuetudo, & qual…ter utuntur conſuetudine qui conſuetudines allegant.comprobavit. As if ſome peculiar regard were given to it, here, Vivitur exemplis, we durſt almoſt venture by track, and it may and muſt be well what others have uſed to doe before us. What other ground almoſt beſides this doe we know of many things p. 266we ſee done and allowed? Ask the reaſon of fines, Herriots, (or Heregates, for that I take to be the right name, ſomewhat belonging to an Army) Relieves, Widows thirds, (in a ſpeciall manner here) Copyholds, to the eldeſt or youngeſt, and ſeverall rules of right yet ſtinting ſtrife all in ſeverall places; Is not the bottome of moſt of theſe, Cuſtome? it hath been ſo? Men have uſed to pay, or give, or do ſo? and This reaſon enough why it ſhould Be ſo. For men are with ſome difficulty debarred their accuſtomed way; Late may not be hindred, what might have been at firſt prevented. So that if overwiſe poſterity ſhall at any time think to awake out of that dream wherin their dull and patient Anceſtors have ſuffered themſelves to be led out of the way for a long time, as their new wiſdom thinks, and champing irefully upon the bit, reſolve to call all to ſcrutiny that hath uſed to paſs, and if it cannot give a very fair account of it ſelf, diſcharge it for ſuperfluous, Does not the anſwer that heretofore11Ioſeph. de …ello Iud. lib. 2. cap. 16. Agrippa made to ſome Medlers, ſeem eſpecially fit to be ſerved in to their ſatisfaction? Intempeſtivum eſt nunc libertatem concupiſcere, It is now too late to ſeek for what they might have deſired; Olim ne ea omitteretur certatum oportuit: Nam ſervitutis periculum facere durum eſt, & ne id ſubeatur, honeſta certatio: At qui ſemel ſubactus deficit, non libertatis amans dicendus eſt, ſed ſervus contumax: They might have choſen, but now they are bound and concluded, the yoke is ſetled on, and muſt be born, (as Peter told Ananias, Thy money was at thine own diſpoſe, but now thou haſt limited thy former liberty.) And 22Honeſtum quidem eſt pugnare pro liberta…e, ſed id olim factum oportuit. At qui victi ſemel ſunt, et longo tempore paruerunt, ſi jugum excutiant, faciunt quod deſperatorū hominum eſt, non quod libertatem amantium: Ioſeph.Joſeph himſelf, as his wont is, to the ſame Men, Gravely: It is commendable indeed to fight for liberty, but this ſhould have been done in time: Thoſe that have been ſubdued, and long obeyed, to ſhake the yoke is rather a deſperate ſhift, then an adviſed attempt for liberty. There be many things, 'tis like might have been amended at firſt, and the work of true prudence have caſt things in ſuch a mould at beginning, as might have ſaved (or prevented) many after following and continually renewing inconveniencies: But when the lot is caſt and the tables ſhut up, the publique hath appointed, time ſetled, and continuance made next to immoveable and naturall, p. 267Then for every thinking man to be tampering with avitae conſuetudines, to amend all he thinks hath been long amiſs, cannot but be the way to much trouble, or is not much removed from intemperate fury: Becauſe he is very weak that thinks not at leaſt he can mend ſomewhat in Sir Tho. Moores Eutopia, or Plato's Common-wealth, and it may be, Could, but Some evils are better born then their remedies. I confeſs my ſelf not very Curious before in keeping my ſelf to that ſtrictly may come under the word of Preſcription, but to that which hath the nature of the thing, to create a title by Poſſeſſion and TimeEver: And I know what diſtinction the Civilians have between it and that ranges alſo under the ſame head, of Ʋſucapio: That11Joan. Calvin. Lexic. Jurid. in vocab. Praeſcriptio. pag. 732. & in vocab. Uſucapio: pag. 959. One is reſtrained to land, The other to goods: One for, Longi temporis, the other for yet larger ſize; That22Id. in vocab. Praeſcribere. pag. 731. where is a purpoſed, and as the author thinks, firſt ſtarted diſquiſition of their difference: Vid. etiam Cujac. in paratit. ad …od. de praeſcriptione longi temp. to take place onelyonly in Italy, This alſo in the Provinces: But chiefly, that one gives33Vid. Gloſſ. Quod autem praeſcriptione in Cauſ. 16. queſt. 4. in Rub. & Cujac. in the place but now. full right of poſitive Dominion, for recovery; But the other onelyonly Exceptionem contra actionem, to protect the Poſſeſſor againſt an aſſaylant, cannot recover a diſſeiſin: But theſe niceties are not to be much ſtood upon by us here in England, and the rather for that the44As may be ſeen in Jo. Calv. pag. 732. cited before. Civilians themſelves ſtick not faſt to them: We mean, as ſaid, the Thing; that which gaineth Title by55So Cook on Littleton. Inſt. 1. fol. 110. b. Having and Uſing, Poſſeſſion and Continuance; and theſe two, I ſuppoſe, as ſo many eſſential parts, doe goe alwayes to that which is Preſcription. Which is then, ſayes 66Fol. 113.Cook, A title taking his ſubſtance of Uſe and Time, allowed by the law; Praeſcriptio eſt titulus ex uſu et tempore ſubſtantiam capiens ab authoritate legis. He critically diſtinguiſheth again between This founded in a perſon, Cuſtome in a place; A man may preſcribe, a Mannour or Honour breed a Cuſtome: (but this I inſiſt not on neither.) and the Civill law agrees with ours:77ff. lib. 41. tit 3.. l 3. Ʋſucapio eſt 88Rectiùs fortaſsè, Adeptio dominii: Sic enim ex Ulpiano Duaren. in loc. & Calvin. in Lexic. Jur. pa. 959.adjectio dominii per continuationem poſſeſſionis temporis lege definiti. But now what time is requiſite to create title, would require ſomwhat a large parentheſis.

p. 268Firſt, abroad: and11Iure civili conſt…t…tum fuerat, …t qui bona fide ab eo, qui dom nus non erat, cùm crederet eum dom nū eſſe rem emerit, vel ex donatio…e, aliáve quavis juſta cauſa acceperit, is, eam rem, ſi mobilis erat, anno ubi que uno: ſi immobilis, b…ennio tantum in Italico ſolo uſucaperet, nererum dominia in incerto eſſent. Et cùm hoc placitum erat putan. tibus antiquioribus, dominis ſuffice…e ad inquitendas res ſaas praefata tempora, nobis mel…or fententia ſedit, ne domini maturiùs ſuis rebus defraudentur, neque certo loco hoc beneficium concludatur. Et …deò Conſtitutionem ſuper hoc promulgavimus, qua cautum eſt, ut res qu…dem mobiles per triennium; immobiles vero per longi temporis poſſeſſionem, id eſt, inter praeſentes decennio, inter abſentes viginti annis uſucapiantur: Inſtit. lib 2. tit 6 in princ. by the twelve tables one year was enough for moveables, two for immoveables: If a man had poſſeſſed bona fide, & ex juſto titulo ſo long. He was in for continuance. This Juſtinian altered, (or rather Tribonian,) for three years in the former, and ten in the later, inter praeſentes, but if the owner were abſent he was allowed twenty. This was called22Non uſucapies niſi ſint tibi tal…a quinque, Recta fides, juſtus titulus, res non vitioſa, Quodre… tradatur, poſſeſſio contint…e…ur: Gloſſ Quod autem, in Cauſ. 16. qu. 4. in Rub. praeſcriptio longi temporis, which yet ſatisfied not in all: for it was needfull to bring in beſides33Vid Cu…a… parat. ad Cod. lib. 7. tit 22. Praeſcriptio longiſſimi temporis, which lengthened the leave to claim within thirty years, or in ſome caſes within forty; and here with them moſt things ſtayed.44Vid. parat. ad tit. 39 de praeſcriptione triginta vel quad raginta annorum.

By the feodall law (1) thirty years preſcription was good, and He that had no inveſtiture, and had been in ſo long and done ſervices ſtood firm.

So by the55Si quis per triginta annos rem aliquam ut feudum poſſeder…t, & ſervitium domino exhibuerit: quamvis de ea…re non ſit inveſtitus, praeſcriptione tamen triginta annorum ſe tueri poteſt: Obertus de Ort…. Fend. lib. 2 tit. 26, ſect. 4. Et vid Gloſſ. fin. ad Feud. lib. 1. tit. de uſ… Med…olan. Canon in many things determinable hereby, though for one Church to preſcribe66Cauſ. 16. qu. 4 c. 1, 2, 3, 6, 8. 9. Decretal. Gregor. lib. 2. tit. 26. cap. 3. Twenty, or ten was enough in ſome caſes The words ſee after tranſcribed in pag. 273 in marg. Tythes againſt another require forty years, and in ſome,77Tit. eod c. 6. Adaures noſtras pervenit duas Eccleſias litigaſſe ſuper decimis, quas una earum in alterius paroch…a annis quadraginta poſſedit: & infra. Tuae fraternitati tenore praeſentium innoteſcat, quod de Iure melior eſt conditio poſſidentis; Quia quadragenalis praeſcriptio omnem prorſus actionem excludit. other Caſes.

Here at home has been much variety: and we have had no fewer then three ſorts of meaſures to limit and ſet out the time of poſſibility of Recoveries by without or beyond the bound of Which, no hope.44As, againſt a Church or a Religious houſe, tit. eod. c 8 & Cauſ. 16. qu. 4. c. 16. approving that of the Code, de Sacroſanct Ecc…eſ. Authent. Quas Actiones & Novel. 131. cap 6. B…t to hold Tythes, a Layman preſcribes never. Quia cum L…ci decimas detinere non poſſant, cas nulla valent praeſcribere ratione: Decret. lib. 2. tit. 26. cap. 7.

p. 2691. The yet ſtanding and yet withall 11For it was by the Common Law, before the Statutes, ſays Littleton. Sect 170.moſt ancient and natural Rule is by comparing with the22The limitation of a Preſcription generally taken is from the time that no mans minde runneth to the contrary. Doct. & Stud. f. 19. as if that had been always. And ſo in the new Additiens to that Book. Add. 1. f. 4. Alſo abroad, Ductus aquae eujus or…go memoriam exceſſerit, jure conſtituti loco habetur. ff de aqua quotld l. 3. Sect. 4. Ac fortè non improbabiliter dici poteſt, non eſſe hanc rem in ſola praeſumptione poſitam, ſed jure gent…um vo…junta…ò inductam hanc legem, ut poſſeſſi o memoriam excedens, non interrupta, nec provocatione ad arbitrum interpellata. omninò dominium transferret. Credibile eſt enim in id conceſſiſſe gentes, cum ad pacem communem id vel maximè intereſſe…. Grot de Iure Bell. l. 2. c. 4. Sect. 9. knowledge of preſent men; if within the reach whereof any thing be ſeen and to be ſaid as known and remembred, the Poſſeſſour is looſe, and may be removed; if otherwiſe, Melior est conditio poſſidentis, He that has is ſecured his continuance of having.

2. But becauſe this might flag, or prove uncertain, and is always wavering, ſome more certain bounds were thought fit to be enquired after, which as ſtakes fixed, at leaſt at one end, migh determine huc uſque ſhall inquiry come, and no further; preciſely laying down what might be expected, as 'twere to a year and a day. As in Glanvils time, the Claim muſt be laid in ſome11In tract de de leg. Ang. l. 13. c. 33, 35, 36. Caſes, ſince the Kings laſt Voyage into Normandy; in22l…b. eod. ca. 3 5, 6. other, ſince his Coronation; in 33l. 2. cap. 3. & l. 12. c 10Writs of Right, his Grandfather Henry 1. and if on this ſide theſe ſeverall limits, nothing could be ſhewed to moleſt, &c. beyond was as good as nothing. In Bractons time, under Henry 3. the wideſt Writ of44Bract. de defaltis, c 5. f. …73. & tract. de excep… c. 19. Sect. 1. f. 416. Right was bounded by Henry 2. time, others narrower, according to the limitation of the5520 H. 3. c 8. Statute of Merton. In66Fleta l. 4 c. 5. Sect 13 p 224. & l 6 c. 6. Sect 3. p. 401. Fletaes time, who lived (likely) under77vid. Seldeni diſſert. ad Flet. c. 10 Sect. 2. Edward 1. from the days of Richard 1. according to the88Made about 3 Ed. 1. Statute of Weſtminſter 1. cap. 38. And this it ſeems remained to Littletons time, about Henry 6. for 99Sect. 170. f. 113.he mentions the ſame to be the Hercules Pillar then, beyond which no Claim could be laid to any thing.

3. But albeit theſe times of Limitation were reaſonable when they were made (I make bold here to1010From Cook in his Inſtit. 2 on the ſtatute of Merton. c. 8. p. 95. borrow a little piece) yet in proceſs of time (there being ſet times appointed in former Kings Reignes, from which as a Barque from the fixed Land the future went always further and further) the times of neceſſity grew too large whereupon many Sutes, p. 270Troubles and Inconveniencies did ariſe, and therefore the makers of the Statute of 32 Henry 8. took another and more direct courſe (by ſetting ſtakes as it were at both ends of the ſtage,) Which might endure forever; and that was to impoſe diligence and vigilancy upon him that was to bring his Action, ſo that by one conſtant Law certain Limitations might ſerve, both for the time preſent, and for all the times to come, viz. That the Demandant ſhould alledge Seiſin in a Writ of Right not above ſixty years next before the Teſte of the Writ, in others thirty, in others fourty, in others fifty. This yet left ſome difficulty, which was after explained in 111 Mar. c. 5.Mark 5Queen Maries time, and pieced out as to ſome trifling Sutes according to much22Cook Inſtit. …od p 96. deſire in3321 Iac. 16. King James his time, and ſo do things I think remain with us at this day. Now from theſe ſeverall Limitations of Preſcription abroad and at home, and about them I cannot but note their general end, which was no doubt to prevent Sutes as much as might be, depending on proof remote and of dark days paſt, by limiting to fourty, fifty, or ſixty years, ſeldome farther, &c. All which it was alſo fit to note foreign, or at large, that by ſeeing what has been, not in this place or that, but All Abroad, we may the better make eſtimate of what we ſhall finde in our Caſe, by comparing the length, (wherein is alſo the ſtrength,) of This preſcription, with that has been generally reputed enough, and to eſtabliſh a Right elſewhere. I confeſs the thing it ſelf as to the equity of it ſeems not to me at firſt ſight altogether ſo44Not Praeſcriptionem eſſe odioſam. gloſſ. Praeſidium ad novel. 9. fair and reaſonable as that Thereon any thing ſhould be ſettled, or There-from derived; for it ſeems as it were many times to ſettle a55Quod initio vitioſum eſt non poteſt tractu temporis convaleſcere ff. de diverſis reg. l. 29. Right upon a Wrong, a Due upon an Excluſion, (perhaps of Right) and at a venture ſuch a one ſhall keep, what by Gift, Succeſſion, Eſcheat, or otherwiſe May in due ſcanning perhaps belong to another: (Perhaps alſo to him that has it, But this is Ʋncertain, and Juſtice ſhould never proceed but in a regular, conſtant, certain, ſure way:) And therefore the prudent66Nam de iure naturali praeſcriptiones non ſunt inductae; nam de jure naturali iniquum eſt aliquem ditari cum aliena injuria. gloſſ. Legis. ad Cauſ. 16. qu. 4. cap. Praeſulum. gloſs upon the Decree ſcarce allows it to be according to the Laws of Equity p. 271and11Nay, it is contra naturalem aequitatem. gloſſ. vel injuria ad ff. de negotiis geſtis. l. 1. Nature, w^ch would by no means have any one22Au old Rule of Pomponius, Iure naturae ae. quum eſt, neminem cum alterius detrimento & injuria fieri locupletiorem. ff. de diverſis reg. juris antiq…. lib. 206. & vid. de condict. indeb. l 14. enriched by the ſpoils of another, as here it often is, always may be. But then again on the contrary part it would alſo be conſidered, That there had much need to be ſome33Omnes actiones infra certum tempus habent limitari. Flet. li. 6. c. 16. Sect. 3. Tollit amenſurationem (dotis) aliquando diuturnitas temporis in perpetuum, cum omnis querela & omnis actio injuriarum limitata fit infia certum tempus. Bracton. de Act. dotis. ca. 17. Sect. 5. f. 314. end of ſtrife; The negligent is but duly puniſhed if he will not come in in ſome reaſonable time; He knows written in the very face of the Law his perill if he do not come in to claim his own, nor is it fit Juſtice ſhould wait ever; And if Controverſies ſhould be admitted of things whoſe knowledge is ſo farre off and out of our reach, that almoſt all the foot-ſteps are worn out by the continuance of Time, Our life is ſo brittle, changes ſo frequent, Arguments from what we ſee not ſo but probable, and yet ſo many, and on both ſides, But above all the wit of man ſo fertile and pregnant the quarrelling way, That ſtill ſome color would be found out or other, Why that ſhould not be, that is, and that in the place thereof, which is not, and ſo our lives would be ſpent with quarrelling, as our means with charge: Wherefore, & Ne dominia rerum ſint ſemper in incerto, as was the gloſs before, it was prudently becauſe neceſſarily determined to have ſome end, wherein if there wanted ſomewhat of Juſtice, there might be amends made in freedom from perpetual trouble and all-conſuming charge; ſome Hercules Club muſt be found out to ſtrike the matter home in certainty one way or other, or rather ſome Alexanders ſword, that what of the Gordian knot could not be untied, it might cut a…under, ſo here: when it grew tedious or rather impoſſible through the manifold complications of crafty Contrivances to bring the matter, whoſe whole ſtage was at a diſtance, to a certain end, for certain yet let ſome end be; and at a venture ſettle upon the Poſſeſſour: He May have Right, he has had for a long time the Thing, Poſſeſſion is many points of the Law, (becauſe every man is ſuppoſed at home, and that to be a Mans own in which he hath dwelled a long time without higher acknowledgement or any ones controll,) and this He hath had no one can remember to the contrary but ever: therefore let him Continue to44Preſcription and antiquity of time fortifies most… Titles, and ſuppoſes the best beginning Law can give, Hobards Reports in Slades Caſe, pag. 297. injoy, and he that was ſo lazy as not come in ſome reaſonable time for his Own, let him now ſee one have p. 272it that will be more carefull of it, and perhaps do more good with it. This may not be well, yet better then what is worſe, Not exactly juſt, but the Good of Peace compenſates the Evil of Injury, and a quiet ſuddain loſs may prove better to the loſer then a gainfull eternal conteſtation. Bono igitur Publico introducta eſt uſucapio & praeſcriptio: as Gaius 11…ff. l. 41. tit. 3. L. 1.ſpake, This is now then for every ones good: Ʋt ſit aliquid litium finis, as22Fulbeck part. ult. c. 4. f. 20. another makes it out; for now there will be quietneſs what ever there be elſe or more.33Remembred by Cuiac in paratit. ad Cod. l. 7. tit. 34. Whence Valentinian made thankfull memory of his Predeceſſour Theodoſius, as in favour of humane peace and tranquility, ſetting forth his Edict of this nature, which Caſſiodorus called the great Patroneſs of mankinde; And if it do nothing elſe, it keeps the Peace, and where Peace is, either ready there are moſt worldly commodities, or Non invita ſequentur, they will ſoon follow.

But this preſcription that muſt be thus the ſoveraign and inriching Peacemaker, a virtual fine, (in the rational import of that word, quia ponit finem litibus,) muſt44Nunc autem dicendum qualiter transferuntur (dominia) ſine titulo, traditione, per uſucaptionem, ſc. per longam, continuam, & pacificam poſſeſſionem ex diuturno tempore & ſine traditione, &c. Bracton de acquir. rerum dom. c. 22. have three Conditions, which I but name. It muſt be, 1. Long: (how long hath been ſaid already.) 2. Continual: that is55Quod ſi per naturalem poſſeſſionem poſſeſſio interrupta fuerit, à… die recuperatae poſſeſſionis novi triginta anni in omnibus praeſcriptionibus numerabuntur. Gratian. Cauſ. 16. qu. 4 c. 15. An abator or diſſeiſor dying ſ…iſed after five years quiet poſſeſsſion gaineth Right to h…s heir, that the owner ſhall be put to his action, and if he let it run to ſixty, ſhall never recover. Bacon. of the uſe oſe of the Law p. 25. For, Vſucapio inde dicta eſt, quod per uſum aliquid cap…t & aufert. Vſus enim per lapſum temporis a limit …es corporales priori domino, & transfert in alium. Calvin. Lexic Iurid. p. 595. without interruption, by word or deed, by violence or gentle claim. 3. Peaceable, by the true Owners patient and dead negligence. For if he ſtir, the bone cannot ſettle to grow awry, the Winde blowing hinders the Water for a time ſetling into Ice by coagulation; ſo ſtrength is here forbidden to grow of the Adverſaries Right, by him that if he ſtrives cannot recover his own. And theſe three things obſerved give a conſcionable 66Vſucapiens plenum jus incipit habere. ff. de rei vindic. L. 17. in fine. Sicut tempus eſt modus inducendae & tollendae obligationis, ita erit modus acqui…endae poſſeſſionis. Longa enim poſſeſſio (ſicut jus) parit jus poſſidendi & tollit actionem vero domino, &c. Bract. ubi ſup.Right, againſt all but one, was ſaid before; Now againſt him: for Time though it can do nothing, yet by it are done many things, and though it work not at all, yet without p. 273it is nothing elſe wrought. Tempus ex ſuapte natura vim nullam effectricem habet; Nihil enim fit à tempore, quanquam nihil non fit in tempore, as11G…t de Iure Belli, l. 2. cap. 4. Sect 1. one ſpake pithily. And therefore, as it is a means of22Vid. Flet. l. 4 cap. 5. Sect. 12. & Bract. de Action. cap. 2. Sect. 13. f. 100. diſſolving, ſo it is alſo of33Vid▪ Flet. ca. eod. Sect. 15. Qui rem ſuam ab alio teneri ſc…t, nec quicquam contradicit multo tempore, is, niſi cauſa alia manifeſtè appareat, non videtur id alio feciſſe animo, quam quod rem illam in ſua…um rerum numero eſſe nollet. Grot. de jure bell. lib. 2. cap. 4. Sect. 5. contracting obligations; Settling and unſettling, binding, looſing, doing and undoing. Indeed every thing is done by Time, and without it is done nothing that is done. The Crooked grows Straight by it, the wrong, right; Ʋſurpation, Juſtice; the Invader, an Owner; And he that nought elſe has but what Length of Time can give, has (with that, and poſſeſſion ſuppoſed) enough to anſwer all that can be ſaid to diſturb him.

Which Soveraign, and almoſt unreaſonable priviledge is allowed upon44Praeſcriptionum aliae ſunt introductae odio petentis & favore poſſidentis, aliae tantum odio petentis. Qui enim bona fide, & juſto titulo rem praeſentis per decennium, abſentis vero per vicennium tenuerit, perpetua exceptione tutus erit, non ſolùm adverſus alios, ſed etiam adverſus creditores quibus res ipſa obligata fuerat, etiam adverſus dominum, and ſhall regain if he be ejected. Si autem nullo titulo, bona tamen fide per tricennium rem alienam poſſederit, ſimili gaudebit praeſidio, &c. Hae poſſeſſiones introductae ſunt favore poſſidentis, & odio petentis, quia lex favet his, qui bona fide, & juſto titulo, vel bona fide tantùm poſſident: odit autem & punit circa rem ſuam negligentes & deſides. Quòd ſi mala fide rem alienam quis poſſidere coeperit poſt triginta annos adverſus omnem petentem exceptione tutus erit. Gratian. ubi ſup. And yet the intruding poſſeſſour is after…ards diſcountenanced what may be, and by the leaſt occaſion ſet beſide the ſad…le or kept from recovering: But the lazy owner ſhall leaſt and laſt be reli…ved. a double conſideration, as well of favour to the poſſeſſour, as hatred to the negligent of his own no… ſeeker: for if he be poſſeſſed upon valuable conſideration, bona fide, and deceived but as an honeſt wiſe man might be, there is ſo much pity of his wrong that he is kept in in favour and for his wrongs ſake: But if he were a meer invader, and as he entred, continue a meer Uſurper, yet ſo much doth Reaſon and the Law hate him that is …lothful in his own intereſſe, that rather then he ſhall have any thing, wrong ſhall take place (by right) againſt right, and rather then Juſtice ſhall always wait upon him that neglects himſelf, her conſtant purpoſe of giving every one his due ſhall wax weary, and give him onelyonly diſmiſſion of ſuit at laſt inſtead of remedy. Currit tempus contra deſidioſos, &c. as was ſaid, and though the Law could even wiſh too that He ſhould not have it that has, yet in hatred of his ſloth that ſhould ſeek, He ſhall never be put out, nor the right owner in.

p. 274All this of viſible reall things, but ſo as the ſame rules hold, mutatis mutandis, of Rights and Services: Whatſoever (being intractable) is poſſeſſed and11Dictum eſt, qualiter, &c. nunc autem dicendum eſt qualiter acquirit…r poſſeſſio rei incorporalis, ſicut poſſeſſio juris viz. alicujus ſervitutis, per patieatiam, quae trabitur ad conſenſum & longum uſum & pacificum, ſine conſtitutione vel expreſſa voluntate. Patientia vero trahitur ad conſenſum, & acquiritur poſſeſſio juris per uſum; ut ſi dominus proprietatis liberum habens fundum, ex patientia permiſerit uti vicinum ſuum, praeſens & ſciens, in ſundo ſuo, aliqua ſervitute, ubi jus utendi non habuerit, ſicut in paſtu p…orum, itinere, vel actu vel aquaeductu vel hujuſmodi per longum tempus, pacificè ſine interruptione: this preſumes leave and creates right. Bracton ubi ſup. owned by uſe, a continuance of that uſe conveighing ſtill ſo much vigour and proportionable quickneſs to the thing it ſelf, that it daily increaſes in ſtrength more and more: If it were weak it grows ſtrong, If it were not able to ſtand alone, it doth now, tractu temporis convaleſcere, and a man Hath that he Had …, nor can another Forbid, what he might at firſt have forbidden. As if a man ſhall allow a way, an Aquaeduct, and by like reaſon liberty to come once a year and take ſuch a thing, a tree from the Foreſt, the tenth row when the Coppice is cut, a ſheaf or a tenth ſheaf out of the field when it is reaped, or the like: Ex tali uſu & patientia praeſumitur de conſenſu & de voluntate: & ita acquiritur poſſeſſio ex tempore, ita quòd taliter u…ens ſine brevi & judicio ejici non poterit, &c. as we may ſay in the words of Bracton. But then there muſt be preſence, and ſcience, the uſe muſt not be clandeſtine, nor in the night, &c. and many other ſuch things there are, de quibus hic non eſt narrandi locus; but they do not contradict or contravene theſe things or our aim or ſcope.

This I take to be the doctrine, and general nature of this accident, in part abroad, but moſt at home, leading to what preſcription is, to our purpoſe: from which it cannot but be evident, That ſuch a thing there is, The Law allows it, There is plea for it and from it; In time it bindes the hands that were at liberty, and creates a right to that was at firſt but a lazy permiſſion, or courteous conceſſion, or perhaps violent intruſion: We have ſeen in what time this may be done, (more then by our bare conjecture,) any limitation ſcarce exceeding ſixty years; and that in a Writ of Right (the higheſt with us) the poſſeſſour need not preſcribe farther to barre out any pretender. In ſome tender ſpeciall caſes indeed, (I p. 275ſhould have ſaid,) 100 years were allowed, as11Vt inter divinum publicum que jus, & privata commoda competens diſcretio …it, ſancimus, ſiquis al…quam reliquerit haereditatem, vel legatum, vel fidei commiſſum, vel donationis titulo aliquid dederit, vel vendiderit, ſive ſacro-ſanctis Eccleſiis ſive vene… abilibus Zenon…bus vel prochotrophiis, vel monaſteriis maſculorum, vel virginum, vel orphanotrophiis, vel brephotrophiis, vel gerontocomiis, nec non juri civitatum, vel donatorum, vel venditorum, vel relictorum eis ſit longaeva exactio, nulla temporum ſolita praeſcriptione coa…ctanda. Sed & ſi in redemptionem captivorum quaedam pecuniae, vel res relictae, vel legitimo modo donatae ſunt; & earum exactionem longiſſimam eſſe cenſemus. Et nobis quidem cordi erat nullis temporum metis hujuſmodi actiones circumcludi; ſed ne videamur in infinitum hanc extendere, longiſſimum vitae hominum tempus eligimus: & non aliter eam actionem finiri concedimus niſi centum annorum curricula exceſſerint, tunc enim tan…ummodo hujuſcemodi exactiones evaneſcere ſinimus. Cod. de Sacro▪ ſanct. Eccleſiis, l. 23. in things given to charitable uſes which might be claimed within the Century, (but this after ſhortned to22Vid. in Authent. Quas actiones, there following, &c. Vt omnes praeſcriptiones contra Eccleſias, ſint 40 annorum. Novel. 131. cap. 6. forty:) and in the ancient 33Vid. Novel 9. & Authent. Quas actiones, alledged but now, & Gratian▪ Cauſ. 13. queſt. 2.endowments of the Church of Rome, and formerly no44Inſtit. lib. 2. tit. 6. de uſucap. Sect. 9. preſcription could run ever againſt Res Fiſci, or 55Vniverſas terras quae à colonis vel emphyteuticariis dominici jur…s, reipublicae, vel ju…is Sacrorum Templorum, in qualibet provincia venditae, vel ullo alio pacto al…enatae ſunt, ab his qui perperam atque contra leges cas detinent, nulla longi temporis praeſcriptione officiente jubemus reſtitu…: ita ut nec pretium quidem iniquis comparatoribus repoſcere liceat. Dat- 5. non. Iul. Conſt. eal. A. 4. & Eutropio Coſſ. Ced. lib. 7. tit. Ne rei dominicae vel templorum vendicatio, temporis praeſcriptione ſubmoveatur. L. 2. The title might never be ſecured, no… the purchaſe recouered.things of a Temple, or66Vſucaptionem recipiunt maximè res corporales exceptis rebus ſacris, ſanctis, publicis, populi Romani, & Civitatum, item liberis hominibus. ff. lib. 41. tit. 3. L. 9. agreeable to Inſtit. 2. tit. 6. Sect. 1. Sacred or Publick, or for Lay-men, as77Pa. 268. in Margine. before, to take up Tythes, but where any could run, in common affairs, the Stage was but ſixty years of length, or fifty, or forty; Sometimes but twenty, or ten, or two; And he that came not in within this ſpace of time ſerved a Prohibition upon himſelf, He might not though he would at any time ever after.

Now then for application of this generall doctrine: and How can This be Then but All and throughout a firm and ſtrong argument for that I contend for? Are theſe things in the Tables of our ſacred Law? And Does Time ſo much of it ſelf Alone, deſtroying one mans right, and ſetting up anothers? And ſhall it be allowed to do nothing alike in a caſe reflecting on God and Religion, if the caſe be the ſame? And proved? ſc. that for ſo long time the poſſeſſion (whereof enough before) hath been continued and lengthened here as p. 276may make out that is reaſonably called Preſcription. Doubtleſs the Law is ſtill the Same, and that good in one mans caſe, (it ought to be ſo,) that Was in Anothers, and Where11Vbi eadem eſt ratio, ibi idē jus. Cook Inſtit. 1 fol. 56. It is a maxim in the Law of England, that All caſ…s lik… ▪ unto other caſes ſhall be judged after the ſame Law as other caſe she. Doct. & Stud. Dial. 2 c 4. the Reaſon is the ſame, It ought to be: for Right knows no Perſons or Things, and preſcription or continuance of time ſhould bee reaſonably interpreted to doe as much For the Church as Cuſtome or the ſame continuance does and may Againſt it. It remaineth therefore that this onelyonly thing be inquired into, Whether ſuch a Right hath been in the Church? and Time out of minde? Sixty years? or other due length or ſpace that hath uſed to protect and keep ſafe the preſent poſſeſſour by exception to any intended ejectment, (which if the whole doctrine before is of uſe by all its ſtrength to create Right and ſecure continuance Here, The duly and truly preſcribing tenant cannot be outed:) And this is as evident as Story, Record, Books, Writings, or other Memorials of any ſort that give account of paſt times can evidence or make good unto Us. For, Ask the oldeſt man living. What is his knowledge? Ask him farther, Whether he ever heard his Father ſay, or that his great Grandfather ſhould tell Him that in any of theirs or the next Ages before Tenths were not iſſuable, and ex jure demandable to the Church out of All Lands? Impannel a Jury of twice twelve times twenty of the ableſt of that County, and the next, and put them upon the queſtion, Whether they doe not know and believe this Cuſtome to be and have been? Or, laſtly, imitate the Conquerour, and ſend for twelve men out of every Shire, legibus patriae optimè inſtitutos, and ſworn (as He did to Them) Ʋt quoad poſſint recto tramite nec ad dextram nec ad ſiniſtram divertentes, legum ſuarum ſancita patefaciant, nihil praetermittentes, nil addentes, nil praevaricando mutantes; and Put to them What are their avitae Conſuetudines, and whether this be not one, Ex omni annona decima garba Deo debita eſt, & ideo reddenda, and ſo for the tenth Colt, Lamb, Fliece, Fiſh, &c? And ſee what they will ſay. Go to the Lawyer, and let him give his Councel from his Books, Reports, Statutes, Laws, or Charters, &c. Let him turn them, as upon double-feed diligence, and ſay, whether it be not p. 277obvious in his Rolls, Records, Cuſtomes, Caſes, Books of Entries, Natura Brevium, Laws, Ordinances, &c. ſtill a ſuppoſition, and glance enough through all Ages to prove the …ame: 'Tis a queſtion of time, let him give inſtance to the contrary in This or That, a former or later, Any Age or Kings Raign. Deal but within the compaſs of things known, and Chriſt worſhipped, and I dare truſt to his ingenuity, for an anſwer punctuall, home enough, and agreeable to truth. In Hen. 8. time, Hen. 7. Rich. 3. Edw. 5. and 4. and ſo, (lik… the …obſter,) back, back to darkneſs, and almoſt bare names of Kings and Government, and has he not ſtill as evident mention (by reflection, and as of things that had their proper ſcene of action and agitation elſewhere in another room) of theſe things in his temporall affairs as any? I would but the whole Iſſue were-made up into a Demurrer of this expectation for ſatisfaction Alone: There is ſo much ingenuity and preſumed honeſty comes along with that learned Gown, aſſured, that all the ſons of Phoebus (Quêis meliore luto finxit praecordia Titan,) or ſacred Miniſters of Jeſus Chriſt would expect doubtleſs no better ſentence of Umpirage (either for the whole or this part of their right) then what his knowledge could, his readineſs would, his juſtice muſt and ought, and his conſcience nor wills, nor dares, nor can but give in according to his evidence. I durſt rely upon whom I never tryed: Wayward men may calumniate, and wilful men miſtake, and weak men ſuſpect or revile what they do not, perhaps cannot underſtand; But there is with that ſort of men (the ſworn Servants of Juſtice, and, as they have been ſtyled,11Forteſ…. de Laud…bus leg. Angl. cap 8. Apprentices of the Law) the Quinteſſence of ſound reaſon & immoveable honeſty, profound judgment and vowed integrity, a love of the truth and painfully acquired knowledge of what it is, that I doubt not but all juſt and honeſt men would have cauſe to go away from them ſatisfied, and reſt in their determinations, as of Lovers of Truth, and Oracles of Sincerity.

Take we one for all the reſt,M… Selden in hi… Hiſt. of of Tythes. and not to be …et behinde any of the reſt, who wrote purpoſely near half a preſcription ſpace of years ſince upon this argument, even moſt learnedly. p. 278Put to him whether or no there have not been time enough to make a preſcription, and a preſcription, and twice double as much more ſince Tythes were ſetled! (there may be errour in my form of expreſſion, but take the thing11Hoc unum petens, ut non verborum Elegantiam, ſed vim rerum expendendam putes. Amb. Epiſt. 12. meant,) and if he doe not grant enough to this purpoſe, and More, let Mee have ſaid Nothing. He more then pretends to ſift things to the utmoſt, and with Curious Diligence and watchfull induſtry to dig down to the root of the ancient conſtitution of things, and ſo give the face of them as they have been from the beginning without any fucus or deceitfull gloſs; and though he rove and fluctuate as long as any, yet he ſtayes ſoon enough to have ſomewhat to ſpare, and yet preſcribe over and over, and over. From his eight Chapter of Laws, little can be had, but de Jure, of the right, which has not alwayes taken place in action; (for good Laws have not alwayes had the good hap to conveigh ſo much felicity to the world as they might, by being throughly and fully Obeyed:) but in the following he comes home. Chap. 10. He22Pag. 278. acknowledges ſome payment under the Saxons by K. Knouts letter yet extant, or if not, puniſhment: Many Churches under the Conqueror are33Pag. 280. marked with, Ibi decimae, in that moſt authentique memoriall of our Nation, or perhaps this part of the world, the book of Domus-Dei, as in Suſſex, Hampſhire, about Baſingstoke, &c. though this neither generall, nor common then. Other44Pag. 282. evidences of dueneſs and payment are under Hen. 1 & Hen. 2. and to them, And now they began to ſettle: A parochial Right is 55Pag. 283.acknowledged and ſuppoſed by Alex. 3. & Hadr. 4. in their Epiſtles hither treating of them (they lived about the beginning of Hen. 2.) and it were ſomewhat hard to disbelieve in matter of fact, ſuch and ſo ſolemn aſſeverations and depoſitions. But about Edw. 1. a parochiall right is granted by himſelf, evident from the Stat. of Circumſpecte agatis, and the writ of Right of advowſon, of that date, where the Eſplees are chiefly laid in Tythes: 66Pag. 285.And by the practiſe of the Kingdom it became clear law (as it remains alſo at this day, he ſays) that Regularly, if no other title or diſcharge, to be specially pleaded or ſhewed in the allegation of the defendant might appear, p. 279every Parſon had a common right to the Tythes of all annuall increaſe (prediall and mixt) accruing within the limits of his pariſh, without ſhewing other title to them in his Libell. After, giving other things, as of Cornwall, from Chaucer, &c. He11Pag 288. concludes plainly the received and acknowledged Parochiall right in the practiſe of thoſe times, which hath to this day continued: Neither is it neceſſary to adde more for the uniform continuance of it. Save where a Statute hath diſcharged, or a Modus decimandi, (which being Diſcharges, doe clearly preſuppoſe and imply one ration:) And this (being a Lawyer, he ſays) is Regularly clear Law. Some curioſities there follow, and judicious, uſefull, needfull diſquiſitions, but ſo as nothing impeaches a full and univerſall Parochiall Right ſetled nine half hundred years agoe, even by his conceſſion: And he hath been generally taken to be no great favouring friend to what more then needs he muſt grant in the Churches behalf, though in this particular I never held him injurious or undeſerving: With his grant taken to be moſt ſparing, he howſoever grants this, and this to our purpoſe Enough. He avers moreover Chap. 11. that22Page 362. after Innoc. 3. time, all lands paid according to the Canons; and therefore no other title was made by the Archdeacon of Lewes to the Tythes of Barrington then in demand, then that the Land lay infra limites Parochiae ſuae de Barenton. & chap. 14. giving the hiſtory of their Juriſdiction tripartitely, into 1. that was before the Norman. 2. to Hen. 2. And 3. ſince: he has enough to the ſame purpoſe, the minde whereof having been given before, needs not to be here repeated again. And theſe things at home are agreeable to what was abroad, as cut out by the ſame rule: for as times then were, the Canon ſate over all, which how it diſcharged it ſelf, was ſhewed33Page 167. before, Chap. 7. for Parochiall payment by the obeyed Decretals. 44Cap. cum contingat. tit. de lecimis Decret. Gregor. l. 3.Quia perceptio decimarum ad parochiales Eccleſias de Jure communi pertinet, as the reaſon is given in caſe of new broke grounds: and the action accordingly was, Jure communi fundata intentio, that is, by common right Tythes praediall and mixt were due to the Pariſh Rectour, if they were not by ſome speciall title enjoyed by ſome other Church, or p. 280diſcharged by Canonicall exemption: ſect. 1. for they were not ſo much given or granted by the Owners as then ſuppoſed, or exacted or expected of or from them by vertue of any act of theirs, as to conceſſion (of the right at firſt) or after delivery, As they had been Reſerved by God at firſt, at the grant of all, in ſignum univerſalis dominii, quaſi quodam titulo speciali ſibi Domino decimas reſervante, as the Law ſpeaks, Never making the right out of himſelf that it might return: As a load of Hay, a Mine of Lead or other Mettall belonging to the Lord, is not ſo much a due iſſuable out of that land he hath let to his Tenant, as a reſervation to himſelf at firſt when the Land was let, and he parted with the fruit of the ground; or as if the ſame Lord cuts his wood or timber, and carries it away from his tenants land, His tenant Pays it not, but gives way to the taking of that was always excepted and reſerved; Or as no Mannour or Pariſh ever laid out any Kings high-way, but the King alwayes kept it for his other ſubjects out of the grant from himſelfe So, I ſay, God reſerved (the times ſeemed to take things ſo,) the tenth as his part never parted with, and as his Own (ſomewhat like a quitrent) it might be ſeized on Jure communi without any order or Act of man, by vertue of primary exception or reſervation. And according to theſe things, the Rector in his libell, Page 151.upon the allowed Actio Conſeſſoria, needed propoſe no more then that the demanded increaſe aroſe within his pariſh, the reſt would follow: Which action, if Durand diſallowed, grounded upon common right ſuppoſed, and approved rather of a Condictio ex canone, by ſome poſitive made law, (not by generall right but Statute-Canon-Law, or agreed on Conſtitution) this is all one to my purpoſe, and for an allowed granted right in thoſe days, which is all I ſeek for. Of what is behither, (truſting to any that pretends to know,) I need ſay nothing.

All this from one man, yet living, and worthily of fame enough for learning, not confined by our own ſeas, nor ſcarce Chriſtendome, Neither can …e but know, and I beleeve, will be ready to averr many times more in this caſe; that if homage were paid to the earthly Lord, rents or ſervices to the p. 281publique, or any thing to any man, this, ſignum univerſalis dominii, was ſtill allowed to Religion, (of more publique and nearer, inward concernment then any thing elſe) even to Gods houſe (who is ſupreme Lord of All) and his publique ſervice; neither may his Miniſters but preſcribe long enough for it,Numb. 18. 21.Num 18:21 as due, under the notion of equivalent to what was Levi's under the law, Behold I have given them the tenth in Iſrael (foreign) for their lot, for their ſervice which they perform in the tabernacle of the congregation.

But now ſteps forth Doctor Tildeſley: Animadverſions on Mr. Seldens Hiſt. of Tythes.whom this large extent ſatisfies not, and therefore he undertakes the higher dark times of much further, and would not but that univerſall right and poſſeſſion of theſe dues has been here Coaevall with the Chriſtian law, and of the ſame date for beginning as Baptiſme and the ten Commandements: He endeavours to reply to the exception, and anſwer the plea for the broken payment till about Hen. 2. As from the ſecundum Antiquam legem debemus, in K. Knouts Epiſtle, & ſicut praedeceſſores nostri conceſſerunt, an ancient grant Then; from the grave teſtimony of Auſtine our firſt preachers time, inſerted into K. Edwards ſo famous law; from a likely fair interpretation of thoſe ſoant returns of Tythes in**I have retained this word all along in difference from the uſuall repreſentation thereof, As well becauſe it ſeems moſt reaſonable giving ſomething of the bo…k not uſually heeded, ſc. that it was kep… In the Church; As alſo becauſe I had information from the moſt Reverend and Learned L. Primate of Ireland, that it is the ſame he hath ſeen in m…ny ancient Manuſcripts. Afterwards I found the ſame alſo in the Latin preface to the third book of the L. Cooks Reports. The co-incidence of Both which to mine own conjecture before, did not a little erect and ſtabliſh my wavering and doubting confidence. Domus-Dei Book, that it might be but according to the opinion of the Inquiſitors prevailing (as to the affirmative or negative) in the queſtion of Expediency or Duty, Whether it were fit or meant they ſho…ld be returned, &c? But I examine not the validity of eithers arguments or anſwers, and as little minde the ſeen poſſibility of more ſtrength on one part, or reply on the other: let their arguments fight (their mindes being in Charity;) which ever prevail, I have in the mean time gained a certain doubtfulneſs of thoſe times under contention, and as much certainty of enough beſide ſince: on This ſide over and over ſufficient for preſcription; Beyond, that which May yet afford more ſtore, and this from thoſe were able and are famous for their purpoſed diſquiſitions.

Now after this abundance together, it may be no doubt ſuperfluous to look abroad for more. What is within the reach of common obſervation could hardly eſcape their views, p. 282eſpecially His, who had examined that and more: What might be had from hiſtory, pleas, writs, ſtatutes, and other information of beſt but common credit, would be but to light a candle before His Sun, or as the gleaning of a little after full heaps, and therefore may well here be ſpared: In ſhort, The clear evidence of Things abroad is ſuch, and the light of Truth concerning them ſo common beating in every ones eys, that no one that is fit to ſpeak, but muſt have knowledge enough to ſay, that for Centuries upon Centuries, ages and generations, and the repeated revolutions of many hundred years, to create preſcription by continuance of paying and receiving, There hath been time enough, and enough, and enough and ſpare; and if twice five times ſufficient to raiſe it in another caſe may here ſerve, (ſet aſide the otherwiſe ſufficient pleas of Donation and Poſſeſſion) none of this will be wanting with either greateſt aſſurance or faire probability.

It is ſaid there could be none without poſſeſſion (whereon 'tis founded,) and every one knows where the dues are kept all the year; This was prevented before: for both a Poſſeſſion, and through coutinuance of time is for that Right is made uſe of but once a year, or when there is occaſion: Let the truth repreſented in a few more lines of Maſter Selden be the Coronis of this part. He obſerves,11Chap. 6. Sect. 2. p. 72. that out of any continuance alone of voluntary payment a kinde of Parochial right was then created, (ſpeaking of about the ninth Century) though a voluntary conſecration might do the ſame; and 22Pa. 78.afterwards, as this wars the cauſe of Right to a Church whereto they had been ſo conveighed; ſo, Continuall Payment of many years did ſo ſettle the perpetuall Right of the Tythes of any Family then, that whither ſoever it transplanted it ſelf, it muſt ſtill ſend whither it had uſed; as if this continuance had for ever ſo bound it, that it might not pay them otherwiſe. This then; and it was about ſeven or eight hundred years ago; How much more ſtrength then muſt an uſage that has its force and being from time, and ſo according to nature, ſhould, (as it does) tractu temporis convaleſcere; get vigour in its age, and be more fat and well liking? How much more ſtrength, I ſay, muſt this uſe have Now, that how p. 283much the older it is, is ſtill always ſo much the ſtronger? And if in ſome Countries there may be a preſcription, De non decimando, totally, and with us it uſually prevails, for a Modus decimandi, which is againſt the Church, compared in matter of Right or Wrong to an Orphan before, How much more reaſon11Meritò ſumma habetur Ratio, quae pro Regione facit. Hobards Reports in Slades Caſe, pag. 295. is there that the Church, The Pillar and Ground of Truth, ſhould preſcribe for her ſelf, then others againſt it? that that prevail which tends viſibly and likely to the ſupport of the Goſpel, then what may prove the ruine and ſuppreſſing of it? whereby the ſervice of God may be upheld, then whereby it may ceaſe? Shall Time be of force to ſay, A Right ſhall Not be paid, and ſhall it not ſettle more firmly, that A Right ſhall? It muſt not, Rather then it muſt,? In other things preſcription is generally a good Plea, for Rights and things, and ſo Doubleſs it is in This.