THE JUST AND NECESSARY APOLOGY of HENRY AIRAY the late reverend Provost of Queen's College in Oxford, Touching his suit in Law for the rectory of Charleton.  
LONDON, Printed MDC XXI.   

TO THE CHRISTIAN READER.  
ALthough the rule be true, Convicia spreta exolescunt, si irascâre adgnita videntur, Injurious accusations are best answered by silence and neglect; yet then to be silent when the imputation is very grievous and most unjust, were both to wrong the truth, and wilfully to betray a good name. Besides, not to be sensible of deep wounds inflicted upon our reputation, is not patience, but dull stupidity. How much the licentious tongues of some, and uncharitable conceits of others have wronged this reverend and worthy man (now with the Lord) will appear by this his own Treatise; which contains a plain and naked declaration of that intricate controversy, and acquaints the ignorant or scrupulous in this case upon what grounds of Law, but especially of conscience, be first undertook the suit: quitting every objection with such a sufficient answer, as, I doubt not, will give good satisfaction to the indifferent and impartial. His main purpose in composing this Treatise, was to clear his own innocence (without any offence, I hope, to others,) and to avoid the rash constructions of some, who are wont first to censure, and then to inquire. Hitherto I have suppressed it, hoping that his eminent credit in the Church of God, would quickly (of itself) consume the envy and vanity of this weak exception, and so with honour outlive it. But seeing (as by many his religious friends I understand) he cannot yet rest quietly in his grave, this cavil being often (upon occasion) and odiously renewed, cast in like a dead fly to corrupt the sweet ointment of his blessed memory, and raised as a thick vapour to obscure the lustre of his good name: I cannot (without palpable and irreparable injury) any longer forbear to put forth his own shield for protection of his guiltless fame, which lies bleeding under the merciless strokes of intemperate tongues, whereof some (I fear) through his sides aim at the disgrace of religion. His worthy favourers every where see it with commiseration, but know not how to remedy it: it is high time therefore to let him speak for himself. For where calumnious accusations are so loud and vocal, it were more than pity that just Apologies should be dumb and smothered. I have therefore published it in his own words, without the least alteration, and do commend it to God's blessing and thy loving acceptation. Peruse it without passion, and then (I doubt not) thou wilt in judgement acquit the Author, who for his integrity was generally and justly reverenced.  
C. P.   

THE JUST AND NECESSARY APOLOGY of Henry Airay the late reverend Provost of Queen's College in Oxford, touching his suit in Law for the rectory of Charleton.  
THe rule of the holy Apostle is: Against 
1. Tim. 5. 19  an Elder receive none accusation, but under two or three witnesses. Which rule, if it were as well observed, as it may be easily known, calumnies against an Elders innocence would not so hastily be believed, as many times they are; nor should I now need to trouble myself with a task of this kind. But having learned out of Solomon, that a good name is better than 
Eccl. 7. 3.  a good ointment, and to be chosen above 
Prou. 22. 1  great riches; and out of the heathen Orator, that Dissoluti hominis est negligere quid quisque de 〈◊〉 sentiat, None but a dissolute person will neglect what men think or speak of him: and having heard by sundry my good friends, that unto much vexation and distraction, unto great trouble and charges by occasion of a tedious suit in Law, this also is added, that many aspersions are cast, and many speeches pass upon me, which some believe, and touching which others desire to be satisfied: it is my desire, in regard of my ministry, of my degree, of my service, and of my place of government, and out of that care to provide things honest, 
2 Cor. 8. 21.  not only before the Lord, but also before men, which the Apostle requireth, to satisfy others with those things, wherewith, I thank God, I satisfy myself in this case. And to that purpose I have plainly and nakedly set down a simple and true narration of passages in that business, and of the case in that suit, and of the grounds whereon I leaned both for law and conscience, together with the exceptions which are taken against me, and the answers thereunto; that when men are truly informed in that matter, and see what is answered unto all objections, they may either clear me in their judgements, or censure me at their pleasures.  
A suit between M. john Alcock and me, about a Lease of the rectory of Charleton upon Otmoore in Oxford shire, long depended in sundry Courts at Westminster Hall, which he began in the Chancery, and wherein afterwards sometimes he, and sometimes I were Plaintiffs. Wherein the case will the better appear, if first the state of that rectory be opened; which is as followeth.  
The Advowson of that rectory being in the King, M. Dennys who was Provost of this College, and Incumbent in that Rectory, affected the purchase of it for the College. For the effecting whereof, because the Benefice was held in Capite, and the College then through want of Mortmain was uncapable of it, he put into that business one Andrew's & one Temple: who, according to M. Dennys his desire, purchased the rectory from the King, Ann. 35. Henr. 8. and in the same year made it over unto M. Dennys then Provost, and unto M. Shaw then Fellow of this College, as in trust for the College. Which rectory being so purchased and passed over, M. Dennys died in the last year of Queen Mary's reign.  
M. Dennys being dead, and M. Hodgeson succeeding in the Headship of the College, M. Alan Scot then Fellow of the College, was presented unto the rectory of Charleton, 1. Elizab. not by M. Shaw the survivor feoffee, but by Hugh Hodgeson Provost, and the Fellows of the College, etc. when there was no right of patronage at all by law in the College, and was thereupon admitted. Which M. Scot coming to be Provost, 5. Elizab. made, as Incumbent, a Lease of the Rectory of Charleton unto one William Izod, alias Shillingford, 10. Elizab. for the term of 81. years, reserving only to the Incumbent during that term 20. lib. per annum, or 30. lib. per annum if he should serve the Cure, together with a chamber in the Parsonage; and laying all other burdens upon the Leasee, procured the Lease to be confirmed, as it is said, by the Ordinary, and by the College as Patron. Which Lease so made by M. Scot, as Incumbent, & confirmed by him as Provost, was enjoyed by M. Izod, alias Shillingford till 20. Elizabethae.  
In the mean time M. Scot died, viz. about 17. Elizab. and M. Shepheard then Fellow of the College was presented unto the rectory of Charleton by M. Bowsfield then Provost, and the Fellows of the College, having as yet no right of patronage in law, unless it were by usurpation, and was thereunto admitted. Which M. Shepheard seeing the Glebe-land of the rectory to be exchanged and alienated by M. Izod, and perceiving the Lease made by M. Scot to M. Izod to be naught in Law, and as bad in conscience, accordingly spoke of the Lease, and of his purpose to question it. Whereupon M. Izod taking advice, and finding great cause to fear the invalidity of his Lease, tendered the sale of it to M. William Alcock, who then kept his Courts, and who being a Counsellor at Law, was better able to maintain it, if it should be questioned, than he was. Howbeit M. William Alcock refused to meddle with it, unless M. Izod would secure his peaceable possession for the space of ten years, hoping in that time, as it may seem, to save by his bargain.  
After sundry passages between them, M. Izod assigned over the Lease to M. William Alcock, 20. Elizab. with a clause of warrantise for peaceable possession for the space of ten years, as appeareth by the Assignment. Which Lease so assigned, M. William Alcock enjoyed, and died seized of it, having before his death much molested M. Shepheard for speeches against his Lease, and at length released him of all personal actions betwixt them, with a proviso, that that release should not extend to prejudice any right, estate, or term of years which he had in the rectory of Charleton upon Otmoore.  
After M. William Alcocks death, such right and estate as he had in the Lease came unto his widow, and unto M. john Alcock his Executor. Upon whose coming unto it, the Lease was questioned by M. Shepheard, and for a while traversed; but the suit not continued unto trial, for that M. Shepheard was so poor that he was not able to prosecute the law, and beside had prejudiced himself by the acceptance of that which was reserved upon the Lease unto the Incumbent.  
Upon M. Shepherd's death, M. Harper then Fellow of the College, was presented by the College to that rectory: who resigning after one half year and somewhat more, for that he could not through the weakness of his body endure such travel and toil for the overthrowing of the Lease by due course of Law, as the whole company desired he should do; I was by the College presented unto it; and, both out of the same considerations which moved M. Shepheard, and out of commiseration of the state of that people where the Benefice is, and out of my due regard of my own duty unto this College, and of my Companies earnest desire, and after much deliberation for matter, both of Law, with many very skilful in the Law, and of conscience, with sundry reverend and judicious Divines, I endeavoured to do the best service I could to this College and that Church, for the overthrowing of that unreasonable and unconscionable Lease.  
This being the state of that rectory hitherto, the question is, whether that Lease so dimised by M. Scot, so confirmed by M. Scot and his company, when the College was not Patron in law, and by a wrong name of the College, so doubted of both by M. Izod, and by M. William Alcock before the Assignment, and so questioned since M. Scots death by M. Shepheard, be a good Lease, or no?  
M. john Alcock, though at the first he seemed by suing me in the Chancery, to flic the Law, and to lean only unto conscience, yet afterwards pretended the Lease to be good both in Law and in conscience, which I ever thought (under reformation) to be naught in Law and in conscience.  
And first, in Law I held the Lease to be naught upon two grounds: first, because it was never confirmed by the true Patron, no Lease being good in Law, 10. Elizab. which was not confirmed by the Ordinary, Patron, and Incumbent. And that the Lease was never confirmed by the true Patron, it appeareth, because it was never confirmed by M. Shaw, in whom alone as survivor feoffee, the patronage truly rested till 24. Elizab. when upon the procuring of a Mortmane for the College by my Lord Bishop of Carlisle, than Provost of the College, M. Shaw made it over to the College, as appeareth by his instrument under his hand and seal. Which being so clear that it cannot be denied, M. Alcocks only evasion is, that the College had gained the patronage by usurpation, because their Clerk, M. Scot, presented by the College, was admitted, and not disturbed. In which case, though I know not what the Law is, whether upon our presentation a right of patronage will be gained by usurpation, or whether usurpation will enable the usurper, not only to present to the Church, but also to confirm a Lease against the good of the Church; or whether a Lease leaning on usurpation upon one presentation in the beginning, be strengthened by the access of more presentations afterwards; or whether the College can gain or hold a right indirectè, whereof it is not capable directè, that is, whether usurpation can gain a right unto a College, whereof it is not capable in itself, yet in reason, which Lawyers say is the ground of the Law, the plea of usurpation seemeth to be very harsh in this case. For if an usurper be an intruder and wrongful possessor, than what is usurpation, but intrusion and wrongful possession? And than what is the plea of right gained by usurpation, but a plea of right wrongfully gained? And than what is M. Alcocks plea for the goodness of his Lease in Law, but that his Lease is good out of a right which the College gained wrongfully? Which plea seemeth yet the less reasonable, because it may seem, that the gaining of right by usurpation was provided for the good, and not for the hurt of the Church; which in this case falleth out quite otherwise. For albeit by the presentation from the College the Church was filled, which may seem to have been for the good of the Church; yet the stablishing of the Lease by the right so gained, is in perniciem Ecclesiae, because so, during the term of years in the Lease, the Church, through the smallness of maintenance reserved upon the Lease for the Incumbent, cannot be provided of a Pastor sufficient to feed and instruct that people.  
A second ground whereupon I held the Lease to be naught in Law, is, because of the error in the true name of the College, both in the Lease and in the Confirmation: the true name of the College being, Aula scholarium Reginae de Oxon. as appeareth by the licence of Edward the third unto our Founder, wherein he licenseth him to found and build Aulam quandam Collegialem de scholaribus, capellanis, & aliis, perpetuis temporibus duraturam, sub nomine Aulae scholarium Reginae de Oxon. and the Lease being dimised and confirmed by the name of, the Queen's Hall or College in the University of Oxford. Which showeth, that what difference there is between Aula scholarium Reginae de Oxon. and Aula Reginae de Oxon. the like difference there is between the name of the College and the name in the Lease and confirmation, that is, a substantial difference.  
Again, in conscience I hold the Lease to be naught for these causes: first, it is a Lease of a Benefice presentative, and with the cure of fowls, where are three villages, and much people: which kind of Leases was by a whole Parliament thought unconscionable and unreasonable, and a law made against all such Leases in future times, about three years after the dimising of this Lease, viz. Ann. 13. Elizabethae.  
Secondly, it is a Lease whereupon so small allowance is reserved unto the Incumbent, as that the maintenance is not sufficient to maintain any fit Minister for the instruction of that great people; whereof what conscience ought to be made, every man knoweth.  
Thirdly, the term of years in the Lease is so long, that the Benefice being presentative for 81. years, that great people is in great hazard to be too much neglected, if the Lease shall continue so long, without eviction at Law, or relief in Chancery against it.  
Fourthly, the Lease is so prejudicial unto the Glebe land of that Benefice, as that thereby much of it is alienated and exchanged with other men upon enclosures, and already grown almost out of knowledge.  
Fiftly, the Lease hath been noted from chief seats of judgement to be so unreasonable and unconscionable, as that it was pity the Leasour had not been hanged before the dimise; to be such as I was bound in conscience to overthrow if by the Law I could; and to be no whit, or very little better than sacrilege, depriving them which wait at the altar, of the things due to them which there wait.  
Sixtly, whence was it that when the matter was referred upon the motion of the Barons of the Exchequer, unto Sir julius Caesar, Sir Thomas Parrie the then Lord chief justice, and justice Walmesley, M. Alcock refused to be bound to stand to their order; that when upon request from the Lord Chancellor unto those great persons of their pains again for an order in the matter, an order was set down by them, and the same made an order in the Chancery, M. Alcock would not obey the order, but stood out in contempt thereof unto a writ of rebellion, and the sending of a Sergeant at Arms for him; and that always he refused to submit unto a final end by the Lord Chancellor, or the Master of the Rolls, without further suit, but that his own conscience told him that his Lease was naught in conscience?  
But a valuable consideration was given for the Lease.  
It is said that M. Izod paid for it 280. pounds, whereof 80. pounds came to the College, and that M. W. Alcock paid for the Assignment 400. pounds. But it doth not appear upon the accounts of the College; where if any such thing were, it should appear, that any penny came to it, either by the Lease, or by the Assignment. Howbeit if it were so, that M. Izod paid for the Lease 280. pounds, he may seem to be well satisfied by the commodity of the Rectory for ten years before, and by 400 pounds paid to him for the Assignment. And if it were so, that M. William Alcock paid for the Assignment 400. pounds, he and his heir may seem to be well satisfied by the commodity of the rectory for thirty years and upwards, and by 500 pounds which M. john Alcock is said to have had of M. White upon the mortgage of the Lease.  
But an hundred Marks were paid to my Lord of Carlisle then Provost, to the use of the College, for the securing of the Lease, as his note 〈◊〉  
Whatsoever colour there be of such a note, yet by two Letters written from his Lordship upon my desire to be satisfied in that point, and still to be showed, it may appear that the College being in much debt at his coming to this Headship, that sum of 100 Marks was borrowed of M. Izod upon five several bonds for the repaying thereof in five several years, and was accordingly repaid in the five years' next following, and the several bonds upon the several payments redelivered, and was not otherwise for any use of the College. Which being the tenor of two Letters under his Lordship's hand and seal, is in reason more to be esteemed then an odd piece of paper of an hand breadth.  
But M. William Alcock purchased the Lease from M. Izod as good.  
He knew the Lease to be disabled in M. Izods' time so well, that he would not meddle with it, till M. Izod yielded to secure the peaceable possession for ten years, though M. Izod had moved him often through fear of trouble, by occasion of it, to buy it. And how can they deny the Lease to have been doubted of by M. William Alcock, who say that 100 marks were given for the securing of it, to my Lord of Carlisle, who was not Provost for some years after the Assignment?  
But it is hard for a College to seek the avoidance of its own act.  
It is an act of M. Scot, as Incumbent of the Rectory of Charleton, and whereinto being Provost he drew by means so many of the College as served his turn, to have a hand in the confirmation thereof, (as also the same year he did to the leasing of an Impropriation for 500 years, and had done the year before to the making away of some Land belonging to the College in Dorcetshire for ever,) which I laboured to overthrow by legal courses, and not any Lease either dimised by the College, or duly confirmed by the College.  
But it is hard to disturb possession after thirty or forty years.  
It is harder to be wrongfully kept out of possession so long. And that possession was in that time disturbed, appeareth, inasmuch as upon speeches against the Lease, it was made over to M. William Alcock; and after the Assignment, suit was commenced by M. Shepheard for the evicting of it, howsoever he was not able to prosecute the suit unto a trial, through want of means necessary in such case.  
But it is hard to take advantage upon a misnomer.  
Is it not harder to avoid a clear case in Law, which requireth confirmation by the Patron, by a refuge of usurpation? Or is it hard in my case, which is usual in many cases of Colleges and Cathedral Churches, as is well known by Merton College, which avoided a Lease upon the very like misnomer as in my case, there the name of the College being, Custos & scholar's Collegij scholarium de Merton. and in the Lease being, Custos & scholar's Collegij de Merton; as in my case the name of the College is, Praepositus & scholar's Aulae scholarium Reginae de Oxon. and in the Lease the name is, Praepositus & scholar's Aulae Reginae de Oxon. and many other like cases? Or rather is not an advantage of misnomer in this case well taken, where a right is only claimed by title of usurpation against the good of the Church?  
But to avoid the Lease, is to overthrow the state of a poor Gentleman and his family, which is hard.  
How much his estate is decayed through his continual wranglings, I know not: but how much the state of souls is more to be commiserated then the state of bodies, and the states of many more than of few, so much more is the state of that people, which feeding with their corporal things cannot be fed with spiritual things while that Lease lasteth, to be commiserated, than the state of M. Alcock and his family. And if further it shall be considered, that before any suit, I made this offer to M. Alcock, in the presence of some witnesses, that if upon sight of his Lease, and due consideration of the validity thereof by four judges, or other, indifferently chosen between us, and informed by our learned Counsel, his Lease should be deemed good in Law, I would never further molest him; and if it should be deemed naught in Law, yet whatsoever they thought meet for me to do out of any conscionable respect towards him & his, I would very willingly do it; and withal, that the beginning of the suit was from him, I hope I shall not be censured to have been uncharitable, but he rather to have been wilful.  
But this suit was much against the liking of many of the Fellows of the College.  
Upon this false report and suggestion they all testified under their hands (which is yet to be seen) that out of an advised consideration of the unconscionableness that Lease, dimised to the great prejudice of that Church and of our College, and out of a long settled purpose to put that Lease in suit when they should have opportunity, the suit was at the first commenced, and still continued, not only with their liking, but with their great desire that the Lease might be avoided; and that they were so far from avouching any thing to the contrary, as that they professed it was always their purpose upon the first avoidance of the Benefice, to confer it upon such a one as would try the Lease with M. Alcock.  
But some of my own degree have said, that for many Benefices they would not have entered into such a business.  
Nor would I, if regard of my oath, and duty to this College and that Church had not pressed me thereunto. Which men of my own degree might rather deem and conceive of me, then seem to censure my courses, the grounds whereof they either know not, or consider not.  
But why then did not my Lord of Carlisle question the Lease?  
M. Shepherd was presented unto the Benefice long before my Lord of Carlisle was Provost, and continued in it all his time, and long after my coming to be Provost; and durig his incumbency, none but he could question the Lease, to bring it to a trial in Law.  
But in the Exchequer, judgement passed long since for M. Alcock.  
No judgement passed there at all in the cause, but after some arguing of the case by Baron Hearn, and somewhat by Baron Altham; upon some fault in the special verdict, a new Uenire facias was willed to be sued out, or else an arbitrable course to be agreed upon for the ending of the matter. Which was done, but without effect, because M. Alcock would not be bound to abide the order of such honourable Arbitrators, as after much ado we had agreed upon.  
But now judgement is passed for him, and against me in the Kings Bench.  
It appeareth by the order of the Arbitrators, which was made an order in the Chancery, that the Lord chief justice Fleming, and justice Walmesley were of opinion that the Lease was naught in law. And M. justice Dodderidge, who had been always of counsel against me, and professed from the Bench, that he had very seriously studied the case for his own full satisfaction therein, clearly delivered his opinion to be, that the Lease was naught in Law. But it is true, that the swaying sentence was for the Lease, upon two points: first, because Nihil facit error nominis quando constat de corpore; secondly, because there is no substantial difference between the name of the College and the name in the Lease, but only a transposition of words, which makes no material error. Touching the first of which points, I desire to know, whether it be a received rule in the Common Law, that nihil facit error nominis quando constat de corpore; and if it be, how then so many Leases have been avoided, so many Grants have been frustrated, so many Writs have been miscarried, upon misnomers? For although many instances may be given wherein men have not prevailed in suits upon misnomer, when the error was not material; yet certain it is also by many instances, that men have often prevailed in suits upon misnomer, when the error hath been material. Touching the latter point also I desire to know, whether the difference between, Aula scholarium Reginae de Oxon. the name by which the College was licenced to be founded, and Aula Reginae de Oxon. which our Founder used, and by which the Lease was dimised, be not a substantial difference. I see the licence of Edw. 3. to be this:  
De gratia nostra speciali concessimus, & licentiam dedimus pro nobis, & haeredibus nostris quantum in nobis est etdem Roberto de Eglesfield, quòd ips in quodam Messuagio suo cum pertinentijs in Oxon. in parochiae S. Petri in Oriente situato, quandam Aulam Collegialem de scholaribus, capellanis, & aliis, perpetuis temporibus duraturam, sub nomine Aulae scholarium Reginae de Oxon. quae per unum Praeprositum de dictis scholaribus iuxta ordinationem praefati Roberti inde faciendum gubernabitur, construere, & de novo fundare; ac Messuagium illud cum pertinentijs praefat. Praeposito & scholaribus dare possit, & assignare. And I see the words of our Founder to be these: Eandem Aulam, Aulam Reginae in Oxon. aeternaliter institui nominandam. Wherein whether our worthy Founder hath not unawares used a name substantially differing from the name whereby he was licenced to found the College, I desire to know: as also, whether a Founder may swerve at all from the name whereby he is licenced to found; and whether whatsoever is put (sub nomine) be not to be counted sacrum, & nulla ex parte mutandum. And further, for the name attended with the persons, I desire to know, what is the name of the College licenced by the former words to be founded, whether this, Praepositus & scholar's Aulae scholarium Reginae de Oxon. or this, Praepositus & scholar's Aulae Reginae de Oxon. and whether out of the name, Aula scholarium Reginae de Oxon. the word Scholar's, can be transferred unto the persons, Praepositus et scholar's, and so the name to remain as in the foundation, Aula Reginae de Oxon. Upon better knowledge of which points, another point will be cleared, viz. whether there be an error in the judgement passed against me.  
But the cause found no relief in Chancery.  
I hoped for relief there, whatsoever the event should be at Common Law, against a Lease of this nature, either by reasonable increase of allowance for the Incumbent, or by abridgement of the term of years in the Lease, or by provision for the Glebe land, that the Church should not therein be prejudiced; or by all of these, or some other means, but am yet without relief, and so am like to be, unless after eight years' toil and charges there as Defendant against a Lease, only good upon title of usurpation, and otherwise unconscionable & unreasonable, I will renew the suit, and henceforth become Plaintisse there.  
But the suit hath been easy for me, and hath undone him.  
In distraction and vexation, in toil and travel, it hath been very grievous unto me, and in charges it hath been so costly and heavy unto me, that if I had so many hundreth pounds in my purse as I have spent in the suit, I might therewith be a very good Benefactor unto our College. As for my Adversary, the suit hath been very advantageous unto him; first because he during the whole suit paid nothing out, either to me, or to the Curate, or to the King for tenths or Subsidies, or to the Archbishop, Bishop, Archdeacon, or others, for Visitations, Procurations, Synodals, and the like, which amounting to 40. pounds a year, or thereabouts, he was by his Lease to have paid, and yet, until order for sequestration, received, by the space of six years, all the fruits and profits of the rectory, save some fruits which in two years I received by composition with some of the Parish, for which I have been accountant. Secondly, because the Lease, which before our suit would not yield 1200. pounds to him, will now, as it is said, yield unto him 1800. pounds and upwards. Thirdly, because the yearly rent of the rectory is now improved unto 200 lib. per annum, which before the suit was not above 150. lib. or 160. lib. per annum.  
Let it then be considered, that the Lease was ab initio naught in Law, for want of Legal confirmation by the true Patron, that upon fear of the invalidity of the Lease and trouble by it, M. Izod assigned it unto M. William Alcock, that M. William Alcock would not meddle with it without warrant from M. Izod for peaceable possession for ten years; that M. William Alcock much molested M. Shepheard with suits for disabling the Lease; that the Lease was questioned by M. Shepheard, and only not prosecuted unto trial because of his poverty; that the beginning of the suit between him and me was from him; that the only strength whereon the Lease standeth against the main point in Law which quelleth it, is the right of patronage pretended to be gained to the College by usurpation; that the error in the name is, as I conceive it with submission, a material error, and that many Leases have been avoided, and Grants and Writs frustrated upon such error; and again, that the Lease is of a Benefice presentative, and for an unreasonable term of years, and with reservation of an unfit allowance for a fit Minister, and whereby the Glebe of the Benefice is exchanged and alienated, and that M. Alcock by his own courses bewrayed the testimony of his own conscience against himself for matter of conscience; and that there is not any exception against my suit for the overthrowing of the Lease, but hath that due answer which may clear it from aspersions cast upon me and it, and then let judicious and indifferent men, not interessed in this business, or in the like case, censure me at their pleasures, so as it becometh men that love the Gospel, and the Ministers and professors thereof, and with respect unto the cause, not unto my person.  
I am not, nor have been in this case, I praise God, willing to give offence, but rather much desire to clear myself from any offence which hath been taken any way. And if I be not partial in my own cause, that (I hope) may satisfy others, which I thank God doth satisfy myself in this case. Howbeit I willingly submit all, only wishing that men may not with Joseph's master be too credulous, especially against an Elder, as I said in the beginning, but rather may beware how they condemn where God condemneth not. If I had not out of many reasons been throughly well persuaded of the goodness of my cause, I would not for the world have dealt in it; and if any man think otherwise of me, God forgive him.  
FINIS.   

FOR THE FARTHER CLEAring and enlarging of some passages in the preceding APOLOGETIQVE, a worthy and judicious friend (for testimony to the truth, and of his love to the memory of the deceased,) hath been pleased to annex AN ATTESTATION.  
I being from the beginning of Do. Airy his intermeddling in this suit, & before, acquainted with and of Council in this cause, and question, could not but afford to this narration apologetical, the affixing of these points, partly of attestation, and partly of addition, viz: That before that reverend man was either Provost of Queen's College, or Parson of that Church: Mr Shepheard than Incumbent and immediate successor (as I take it) of Scot the unhappy and ungracious Lessor, made Entry into and claim of the Gleebe-land to the said Church pertaining or some part thereof. Hereupon a Bill was exhibited against him in the Chancery by Izod alias Shillingford (if I mistake not his name) being the first Lessee or his Executor. Shepheard hereupon came to me requesting me to be of Council with him and to draw his Answer, which I did: But so poor he was that after the taking out the Copy of the Bill & paying his Attorneys fee, his purse was empty and therefore I was of Council with him in Franckalmoigne. After this he came to me in the Country requesting me to move the said College being then Patrons to assist him with their purse to bring the said Lease to trial, telling me that he had Mr Plowd●ns opinion for the avoiding thereof: I did accordingly move Mr Doctor Robinson then Provost, to that purpose: but the Answer that I received was, that if he would resign or when the Church should become void, the College (presenting an able Preacher) would be at Cost in the suit: but not for him, who was either Potentia or actu no preacher, or to this effect in substance: it being hard to relate phrases and syllables twenty years after, for so long I take it to be. Thus Mr Shepherd having but 30 pounds per annum bare rent for him his wife & Children was glad to sit Down and let the Title of the Lease rest for want of ability to proceed in suit. After this the said Lease (in part at least (viz: for one or two 
* Morecor & Fencot to my remembrance.  villages within the parish) was offered to be sold to Mr Temple then of Water Eton, now Sr Thomas Temple, who wanting provision of Come to his house as it seemed was willing to have bought it, lying not far from him. But upon inquiry finding the validity of it to be under question refused to deal therewith. Mr Alcocke finding it not currant in the Country, after got money upon it in London viz: of one Mr White the sum of 500 pounds ut dicitur, and this was as I take it immediately upon Shepherd his Death or in his last sickness. After the Death of Shepheard Mr Doctor Airay being instituted and inducted into the said Church, before any suit by him commenced for avoiding the said Lease, The said Alcocke exhibited his Bill against Doct. Airay as knowing the time was come for bringing the validity of the said lease into question according to the intention and purpose of the said College long before published & discovered. Therefore he now sought relief in equity as doubting himself his strength in law. Doctor Airay on the other side advised in my presence both touching the point in law, and touching equity with two ordinarily coming that Circuit and others, men of as great note for learning and judgement in the law, as any of their tyme. Their judgement was▪ both that (the Lease was void in law, and that it being of a Benefice▪ with Cure of souls, Chancery nor equity would never uphold it. Suit was therefore hereupon commenced at the common law, and upon reference before it came into the King's Bench, Sr Thomas Fleming (either when he was Lo. chief Baron or chief justice of the King's Bench) and Mr justice Wal●iester▪ certified under their hands the same opinion in Law touching the invalidity of the Lease. In the King's Bench, Mr justice Dotheridge, who had been of▪ Alcocks Council in the Exchequer, and there argued for him, yet as a judge in the King's Bench, gave his opinion against the lease (viz: that it was of no validity:) Adding, that it was▪ as like to Merton College case, (wherein the Lease though not as this of a Benefice was adjudged void) as one egg to another. These things thus being, can any blame Do: Airay for thinking the Lease not good in law? How and where should he attain to greater knowledge of the law then these Counsellors of great reputation, nay then these three judges? but it will be said, (and indeed must be, by those that will censure him as faulty here. about) that although the lease were, or at least were justly to be thought, void in law yet it was against conscience to seek toavoyd or overthrow it. Upon this I must demur, For this then willbe the Case: A leaf is at this day made by a Parson, & confirmed by Patron & ordinary, which yet by the law is not of force nor validity: But whether the Successor of this Parson be not tied by Conscience to admit this to hold as a good lease, 
By the statutes 13. Eliz.  though in law not good, must be the Question. A strange question, such as would make paper blush to bear as a question, were it capable of blushing. For since the voice of Conscience is loud and plain against the making of such leases, is it possible she should dissemble and whisper in corners for the upholding and supporting of them? Certainly, this voice if any such bee is but of fals● nominata Conscientia, as St Paul speaks of Scientia. And to find out whether it so be or not let us consider of the institution of Benefices, & the end of the endowment of Churches with livings, and this is declared by the statute. 3. R. 2. Cap. 3. to be; That the Benefices thus endowed, should be given to honest and convenient persons, for the serving and honouring of God diligently, the keeping of hospitality, the informing and teaching of the people and the doing of other noble things pertaining to the care of souls. This is the judgement of the wisdom of the Land viz: of the King, the Lords spiritual and temporal, and the Commons. And can then Conscience speak beyond law for the Diversion and alienation of these livings from those public and pious uses yea from their original Institution to supply a private Kitchen? Let us in this also heat the voice and judgement of the whole Realm (and turpis est pars quae cum suo toto non convenit.) In the reign of K. H. the 8. Ao 32. Cap▪ 28. A law was made to make good and firm all Leases for reasonable Term viz: not above xxj years or three lives of lands usually let made by any, seized in their own rights (though in Tail) or in the right of their wives or of their Churches so as the old & accustomed rent were reserved. And what then for Leases by Parsons and Vicars who are seized in right of there Churches? The whole Realm thought fit these should be excepted and not be made good, though thus for a reasonable term as by the Statute appears. But it may be said that yet a Parson with Assent or Confirmation of Patron and Ordinary might make a lease for any long term. True, by the permission of the Common law, the whole trust being reposed in these three to preserve the Church's rights and possessions, and so also might the whole inheritance be aliened if they three all concurred. But this was never approved by Parliament: but chose as knowledge and piety more increased, so was it more restrained and suppressed. Therefore Ao 13 Elizab. which was shortly after the Date of Scots lease, were two Acts made, the one against long Leases by Colleges and all having spiritual livings branding them with this note, first that they were unreasonable. 2. that they were the Cause of Dilapidations. 3. That they were the Decay of spiritual livings and Hospitals. 4. That they were the utter impoverishing of all Successors Incumbents of the same. And therefore it was enacted Cap. 10. That no lease of such or like livings other then for xxj years or three lives howsoever or by how many soever confirmed should be good or of force. And lest yet Parsons and Vicars might with Confirmation of Patrons and Ordinaries prejudice the Church so long as. 〈…〉 xxj years, It was enacted Cap. 〈…〉 Lease by such should be good or of force longer than the Lessor should continue resident, without absence, above 80 days. So as by Death of Lessor (if not sooner) it must fall to ground, (no hurt being that each, for his own time of life and residence, might by lease, for the better applying of his study, free himself from husbandring his Gleeb, or collecting his Tithes.) And this Law in the preface expresseth this Cause of that Provision (viz:) that the livings appointed for ecclesiastical Ministers, may not by corrupt and indirect dealings be transferred to other uses. So that this making of Leases is termed and judged a Transferring from the original Institution, and that Transferring is by the judgement of the Realm a corrupt and indirect dealing. And in truth this Leasing is as much in effect or hath as much evil in it as an Impropriation for the time, & the time in our case being above 80 years, is of no small length. What then if in some Cases, art and ingeni●, as one Statute speaks, a practice have been to do this eiull either by long lease or Impropriation; but Digitus Dei being in it hath made this wicked act to have a gap or flaw left, and to fail in some circumstance material to give it force in. Law. Must the Conscience of the succeeding Incumbent help to make up this gap by confirming or affirming it to be of force and strength and so admitting it when law hath given it no such strength? What is this but ultimam manum apponere to approve & partake in the wicked act of the Predecessor: to see a sacrilegious person, and as the Psalm speaks of a thief to run with him to help to perfect his theft, and lock up the door of Restitution, which the Law had set or left open? Nay, what is it but to make Conscience opposite to, & to give aid and assistance against the end and Institution of Benefices, viz: the diligent serving and honouring of God, keeping of Hospitality, the reaching of the people, and doing other noble things appertaining to Cure of Souls as that Statute. 3. R. 2. speaks: nay, to be helpful to that which is unreasonable, a cause of dilapidations, and decay of spiritual livings, yea a corrupt and indirect transferring of them to foreign uses, as we heard the Statute. 13. Eliz▪ speak; yea an exposing of the people to the seducement of jesuits & priests, & to their reconciling of them to the Sea of Rone absolving & dischardging of them from all obedience duty and Allegiance towards their Sovereign, and so preparing them for unnatural and dangerous rebellion, which the same Statute cap. 2. declares to be the effect and Consequence of the want of good Instruction occasioned by the diversion of the pastoral maintenance. Now if any will make conscience so unconscionable as to play this part he deserves, monstrari et dicier his est, even to be poiuted & wondered at. Yet let none wilfully mistake or pervert my words: I say not that Conscience should go so far as to pull Down and overthrow such leases if they have their full strength force and perfection by law: Factum valet quod fieri non debuit. In such case only perhaps an act of Parliament may justly demolish this lewd edifice and building. But I say where the Law upholds it not, suppose only a Deed written signed & sealed but wanting Delivery, or confirmed by Ordinary & not by Patron, or by Patron & he within age, or the Patronage entailed, or be it otherwise Defective, Conscience I say rightly guided must rejoice that the Law hath not given it full strength, and not either belie the Law that it doth make it good where it doth not, or supply that strength to it which it wanteth in law. Herein therefore no blame can be fastened upon that worthy man viz: that he brought this evil contrivance of a Diversion from good & holy Institution, to the Balance or Standard for trial. And Mr justice Crook Delivering his opinion in law for the Lease so expressed his conscience, that it was pity if it could not be avoided by the Rules of law, being so ill and so ungodly an act. If any shall say that it being assigned over to a Purchaser must turn the wind and make conscience go on the Leases side, he is much deceived; For then every such unconscionable lease whereby as in our Case even house as well as Living shall be alienate from the Parson, and he be turned to an Alehouse for his food and lodging, made one Day to A and the next Day assigned to B (nay perhaps made to A for that purpose to be assigned to B) should make Conscience turn as easily as the wind. It is a rule of law in such Cases caveat Emptor, nam novisse debuit se imemere alienum, and again, Quod in initio non valuit, tractu temporis non valebit. Nay it is a rule both of Reason and Religion, Melius ut pereat unus quam unitas. The bodily Death or Destruction is not to be valued with that of the Soul, as was taught by the best Master that ever was, much less must the corporal Provision of or for one person or family overweigh and supervalue the spiritual provision for many persons, many Families diverse Towns and Villages, nay the Kingdom's safety. If any object the validity in Law of this Lease, they return to the first point and blame him for not foreknowing what judges would resolve better than his Council, which to do is (absit indignatio verbo) very absurd. For suppose the University, by their Counsels advice, try in law a Contrivance of a Recusant, to defeat them of an Advowson, or Presentation to the Church, and that the judges should not in some Case conceive the Statute. 3. jacobi, to reach so far, or be taken so liberally as their Council (being of great ability) thought: it rending to so good a purpose for the Churches good: shall the University be blamed for bringing the Case to trial in Law? Absit. Besides that as many judges have (as appears by the premises) been in law against the Lease made by Scot, as for it. It would take up a great deal of labour and paper to set down the many Leases and Conveyances which by several judgements have been avoided upon Mishaming; yet in this Case that was not properly the point, but the College only confirmed as Patron, where the Patronage was in others. To help this, it was alleged, that by a wrongful presentation the College had gained the Inheritance of the Patronage as by usurpation. And to avoid that, this misnaming was stood upon chiefly in this wrongful presentation. Nay a case is in one of our late Books printed, of a lease made 2. Ed. 6. of a Parsonage 
Cook lib. 1. fol. 153 the Rector of Chedingtons' Case Mich. 40 & 41 Eliz.  Com: Buck. confirmed by Patron and Ordinary, and yet (after it had been enjoyed above 50 years,) avoided by judgement & evicted from the sixth or more remote purchasers (without any relief in equity,) I will not say upon a nicer point than was this in our Case, but surely to mine eye & apprehension less discernible. Thus it is evident that justly no scandal nor Imputation can for this matter be cast on this reverend man. And otherwise he was doubtless one of those, of whom: St Paul saith, Tales in pretio habete, a true Labourer in God's harvest, one that sought not himself, nor great things for himself. Let us therefore honour the memory of such, & fear that woe denounced against them that call evil good, and good evil.  
T. W.  
FINIS.