A Second VINDICATION Of a short TREATISE OF tithes Lately WRITTEN.  
And excepted against by a second printed Paper, Styled, tithes Totally Routed by Magna Charta, &c. Wherein is discussed, 

1. Whether tithes were not due to the Church in England, before Magna Charta, made in 9 H. 3?  
2. Whether that Magna Charta Cap. 1. do not confirm tithes to the Church?  
3. Whether that there ever was,( or indeed can be made) such an Exposition of the 29. Chapter of Magna Charta, that payment of tithes should be against that Statute?  
4. Whether the Statute of 1 R. 2. ca. 14. were made against Parochial tithes.    
London, Printed for Thomas Heath, and are to be sold at his shop in Russel-street, near the Piazza's of Covent Garden. 1653.   

A Second Vindication of a short Treatise of tithes lately written; and excepted against by a second Printed Paper, styled, tithes totally Routed by Magna Charta, &c.  
I Shall not abuse the Readers Patience either with Epistle or Preface, but come briefly to the Points controverted, because I will not contend in Words, but in Matter: Wherefore I state the Question thus:  

1. Whether tithes were not due to the Church in England, before Magna Charta, made in 9 H. 3?  
2. Whether that Magna Charta Cap. 1. do not confirm tithes to the Church?  
3. Whether that there ever was,( or indeed can be made) such an Exposition of the 29. Chapter of Magna Charta, that payment of tithes should be against that Statute?  
4. Whether the Statute of 1 R. 2. ca. 14. were made against Parochial tithes.   
The first Question doth Minister occasion necessary to search into the Rights and practise of payment o tithes of higher Antiquity then he that wrote the Treatise first intended, for it seems he thought that an established Law and practise of 500 years Antiquity or thereabouts had been sufficient to have justified the Right: But we are put to a higher search, and yet I hope we shall not be constrained to soar so high, as to Evangelical or Apostolical Texts, nor yet to the Fathers of Primitive times, Origen, and others; nor to the Fathers of succeeding times to the years of 400. or 500. next after our Saviour Christ, as St. Ambrose, St. Augustine, and others, who lived about that time. Nor to any foreign Ecclesiastical Canons or Censures, though backed with Secular Power in the Western Churches, for proof of the duty and payment of tithes or tenth part about the year 800.  
But our purpose only is, to touch upon the Laws, councils, Synods and Canons of this Nation: and because both parties do rely( as well they may) of what learned Mr. Selden hath herein written for matter of Antiquity, I refer you to his 8. Chapter of tithes, wherein he doth commemorate at large, what is here faithfully abbreviated for the Readers ease. The first Law I begin with, was that made by Off-King of Mercland, and Aesfwold King of Northumberland, and by the Powers both Ecclesiastical and Secular the common people you see not excluded for the payment of tithes or Tenth part, &c. This was made Anno 786. by those Kings and People that then took up a great part of England; and is like( saith Mr. Selden) that it was made general to all England.  
King Ethelulph in the year 855. with consent of his States both Secular and ecclesiastic, gave unto the Church all manner of tithes, both Predial, Parsonal and mixed. And another like Grant was made by him by Parliamentary consent of that time.  
In the Laws made by King Alfred( betwixt the years 872 and 901) and Guthrun the Dane, and renewed by Guthrun and King Edward, son to Alfred, about Anno 901. a penalty and forfeiture is imposed upon him that did not pay his tithes, and this was very often renewed by the Wisemen( or Barronage) of succeeding times.  
King Athelstan about 930. by advice and consent of his Bishops, made a general Law for payment of Predial and mixed tithes, for which the people gave him thanks.  
King Edmond about Anno 940. in a kind of Parliament, both of Lay and Spiritual men, made an Act, That he that did not pay his tithes should be Excommunicated. And in this Kings time did Odo Arch Bishop of Canterbury, make a Constitution( in a Synod, as may be believed) for payment of tithes.  
King Edgar about 970. with the advice of his wisemen( or Baronage) ordained, that the Church should enjoy all her liberties, and first that tithe should be paid to the Mother Church, but if any had a Church with a place of burial, to give a third part of the tithe to it; if without such place, to give of his nine parts what he would. And that he that would not pay his Tenth was to have all taken from him, and a ninth part onely returned to him.  
In a council or kind of Parliament held under King Ethelred, about Anno 1010. it is ordained, That the Church be not deprived of her tithes of ancient time appointed. Other Laws of the same King are there remembered, whereby every man is enjoined to pay his tithes, as was done in the time of their Ancestors, and which they gave unto the Church.  
King Knout about 1020 made Laws agreeable, almost verbatim with those before of Edgar; and they are styled in the most ancient Copies, Leges Anglicae: And in his Epistle as he departed from Rome, Anno 1031. and which he sent to his two Archbishops, and the rest of his Bishops and Baronage of England he straitly charges them all that they should take care that tithes were duly paid among other Church Revenues, according to the ancient Law, threatening punishment against Refusers.  
Amongst the Laws of Edward the Confessor, made by him, his Barons and People, there is this for tithes, that the tenth sheaf be paid, the tenth colt, in case but one or two, for each 1 d. the tenth calf, in case but one or two, for each a half penny, and so forward for all other things, in most whereof the like payment continues to this day. And that they that would not pay, should be thereto compelled. Per Justitiam Episcopi & Regis.  
And that Law of Edward was confirmed by William the Conqueror.  
In a Synod held about the Conquest it is said, Let tithes be paid of all that is possessed.  
And by a Canon of a council at Windsor some years after the Conquest, Laymen are enjoined to pay tithes.  
And in the ninth year of William the Conqueror, in a Synod held at London, there is a passage against Arbitrary consecrations of tithes.  
But true it is, that about this time payment of tithes according to those ancient laws, was much discontinued, which Mr. Selden doth specially observe by that Book of doomsday, which you city; but there he gives a reason for it, that either the Clergy were then grown more wealthy, by the superabundant liberality of the people; or else that tithes were then held so spiritual, that they were not thought fit to be inserted in that general survey.  
And yet you may see again that in 3 H. 1. in a Synod held not by the Clergy alone, but by Royal Authority, with the assent of the Baronage, it was ordained, that tithes should not be paid but unto Churches, against Arbitrary consecrations. And in the Laws of this King it is provided That he that did not pay his tithes, the Officer should seize all, and return to him the ninth part only, &c. agreeable to the Laws of King Edgar and Knout before remembered.  
In the time of King H. 2. Anno 21. a Provincial Synod was held a Westminster, the King and his Son being present, wherein tithes are enjoyed to be paid under an Anathema.  
Then follows the Decretal Epistle of Innocent the 3. for Parochial payment of tithes, mentioned in the Treatise Anno 1200. in the second year of King John, which I mention not for authority, but for the time only when Parochial Right was established, because our Law Books speak much of it, and of his council at Lateran within fifteen years after.  
To all these Laws Secular and Ecclesiastical for due payment of tithes, you may please to add the practise of many Arbitrary Consecrations of tithes to monasteries and Churches before the year of 9 H. 3. when Magna Charta was made; for which I do onely refer you( for they are too many to be repeated) to the 11. Chap. of Mr. Seldens Book of tithes, where you may see many Instruments, and may know, that many more there be of that nature, whereby it is more then credible, most of the tithes of England was settled by way of Appropriations to abbeys and Religious Houses, and Parochial and other Churches endowed with them before Anno 1200 But some tithes remaining, yet then so undisposed till the year 1200. then grew the general( but yet not the first as you may see here before of that of 9 of William the Conqueror, and of 3 H. 1.) Restraint of disposing them otherwise then to the Parish Church.  
But what Churches at this day claim tithes by virtue of that Restraint, is not necessary to be( nor in truth can be imagined to be) discovered. But every person prescribing to have the tithes within his Parish of common right belonging to him, this may be extended as well( if not better) to be by endowment before an. 1200. as after.  
All this is only to clear this point unto the Reader( for I perceive you are well red in Mr. Selden before) that tithes were the Chu●ches right before the making of Magna Charta in 9 H. 3.  
Now shall I come to show you, how highly you mistake Sir Ed. cook, when you say, that in his Chapter of tithes( viz, in the second part of Inst. p. 651.) he affirmeth, that by the common Law, Lands are indecimable; and if so, say you, then by that common Law there can be no Church Right to tithes. This your main foundation, whereupon your Reply is built being answered, all your Arguments and Superstructure built upon it will fall to the ground. For answer therefore thereunto, you shall see that your first mistake is this, That he commenting upon the Proviso in the Statute of 2 E. 6. and upon these words; viz. That no person shall be compelled to pay tithes of Lands, &c. which by the Laws of the Realm, &c. are not chargeable; he expounds the word ( Laws) to be meant the common Laws and Customs of the Realm; and there he stops. Then follows in a new line these words, Terrae sunt indecimabiles; which is another Sentence, and relates not at all to the former words: so that he doth not say, that by the common Law Lands are undeeimable, which then ought to have been all one entire sentence, but peruse it better, and you will find it to be as I here tell you.  
But if this satisfy you not, then I shall show you that as you mistake, the coherence of the words, which are independent on of another; so( if the words were as you would have them to sound) you clearly mistake his sense and meaning; for you take him as if he had said, that by the common Law, no tithe is of right due to the Church, out of the increase of the Land; which Interpretation is absolutely to corrupt the text, and overthrow the whole scope of the Statute, and the very law itself in this point; for you shal find that it is not onely his reports, but the known Law, and so commonly held in our Books, 4 Rep. 44. Mr. Seld. p. 288. that no Lay man can prescribe in non Decimando; because that by the common Law all Land is liable to the payment of tithe, of that which doth yearly renew out of it. And again, it is his own saying, That by the common Law of this Land Ecclesiastical persens had remedy to recover their tithes in the spiritual Court: so that if the Construction you make of Sir Ed. cook be true, you make him to contradict himself to corrupt the Text of the stat. of 2 E. 6. and to deny the known Law in this point, which he hath very often approved of.  
And now that I have shown you what was not his meaning by those words ( Terrae sunt indecimabiles) and your mistake thereupon, I will in the next place show you his infallible meaning therein. And that those words according to his meaing are true( though taken as you deliver them, with reference to the words precedent) and yet your collection upon them un true. For I agree, that Lands by the Common Law are not Tytheable; that is to say, That tithes shall not be paid of any thing that is of the substance of the earth, and not Annual: And thus doth he explain himself in the very next words following, that tithes shall not be paid of Quarries of ston, turf, and many other things there mentioned, which are of the Nature and substance of the earth: and for your more full satisfaction of this truth, and that this is the meaning of Sir Edw. cook in that place, it is most manifest by that book he there refers you to: for where he saith( Terrae sunt indecimabiles; that is to say, Lands are not Tytheable) hereof you may red divers examples( saith he) lib. 8.( which is misprinted for lib. 11.) but the folioes are right, 48, 49. and 81. where you may see the examples he refers you to, That no tithe shall be paid of Timber-trees, because they are parcel of the Inheritance of the Land, nor of the Lop or Top of them, nor of the Bark, and such like things.  
And this I hope, as it will be satisfactory to all that red it, so is it a full answer unto that objection you make against the Treatise out of those words of Sir Ed. cook, and that the Assertion in the Treatise( which is out of the same Sir Edw. cook also) That by the common Law of the Land Ecclesiastical persons had remedy to recover their tithes in the Spiritual Court, is as true Assertion; and that the conclusion thereupon, that the Law gives no remedy, but where there is a right, is as true and indisputable, nor is that which you quote of Mr. Selden concerning Arbitrary disposition of tithes any thing against this Assertion, for I agree to what he saith, and what Judge Ludloe, Brook, and others have said, that in ancient time a man might have given his tithe to what Church he would: But do any of them deny, that after a man had voluntarily given his tithes to any Church, that the person had remedy by the common law to recover such tithe in the spiritual Court; I trow not, and this is that Assertion, which if you disprove not, you disprove nothing.  
As to that complaint of wickliff, which you city, in the time of R. 2. that the proud and pompous Priests constrained the people( by Popish Canons, these words are your own, not Wickliffes, and contrary to many Laws before remembered) to pay their tithes to them, whereas within few years before, they paid them at their own free-will and pleasure: whether the Clergy then deserved that Censure, or wickliff was too blame to bestow it upon them, with much more bitterness then you mention, I pass by it as immaterial to our purpose; only take what Mr. Selden notes p. 292. that those few years he talks of, was then about 20●. years since arbitrary Disposition of tithes was taken away.  
And whether the Treatise or you have mistaken Mr. Selden p. 144. Sit liber judex, and compared with that he writeth in his 10. Chapter, from p. 287. to the end, you will find him inclined to that opinion, that tithes were restrained to Parochial right about 1200. though not by the Popes Canons or Decrees of those times: and p. 361. he tells you, that after the time of King John, few or no Arbitrary Consecrations are found.  
2. Now to the second Question: You object, That because tithes are not name in Magna Charta ca. 1. therefore they are not confirmed to the Church; for say you( and therein truly) that no new rights were given, but their old rights confirmed by Mag. Ch.  
To this I say, that though tithes be not therein specially name, yet they were thereby confirmed in the general words of the Churches rights; and this is not only my exposition, but the ancient interpretation of the same words Liberties or Rights in that Law of King Edgar herein, before remembered. Besides, if you please to cast your eye again upon Sir Edw. Cokes Comment of that first Chapter of Magna Charta, you may see that he doth observe, that the confirmation of the Churches rights in general was with favour, and for the advantage of the Church without any restraint; but the clause concerning the Lay-subjects is restrained to their Liberties therein only mentioned. So that the question will still be, Whether tithes were not the Churches right before the Statute of Magna Charta, made 9 H. 3. For the clearing of this question, I can but refer you again to those Parliamentary Laws herein before remembered, which are upon Record, and undeniable Authority, and unto those councils both general and provincial, Synods and Canons held and made here in England by Royal Authority: for I have not only omitted all foreign councils and Canons, but likewise all such as have been held in this Nation by the Popes Authority, and against the Kings Consents( foreseing your aptitude to except against them) beginning in the year 786. unto the reign of King John Anno 1200. which preceded the Statute of Magna Charta 26. year; in which time it may well be supposed Parochial right was settled and the Parish Rectors prescription at this day is not bounded to the time of Innocents Decretal Epistle or council of Lateran, or any other time certain, but in Law is supposed to be beyond them all.  
Now besides the aforesaid Laws made for payment of tithes, in the reigns of all the Kings before name, you may add thereunto the practise of the people, for few of those Laws directing or confining the payment to the Parish, Arbitrary Consecrations, were then much used, and yet particular Churches, Parochial-like, frequently endowed, as you may see in the Bundle of Records mentioned in the 11 Chap. of Mr. S. selected out of a multitude of others yet extant, whereby it may be collected, that by such Appropriations, Consecrations and Endowments, most tithes were so settled. And because the Treatise saith, that Parochial Right was not fully settled till the reign of K. John, therefore you conclude, That the Church had no right to them before; which follows not, unless you will make all those Laws, councils, Synods and Canons, and all Consecrations, Appropriations and Endowments before mentioned of no force or effect. By which tithes being of right belonging to the Church, there is no necessity that they must be Parochial time out of mind, before the making of Magna Charta, or else that they are not confirmed by that Statute, as you suppose.  
For as for such tithes as were not Parochial till 12. years( as you say) before Magna Charta, and in those 12. years were made Parochial by grant to the person of the Parish: Are not these tithes then the right of the Church? if it be so, which neither you nor any other can deny, then doth the Statute of Magna Charta confirm it, though the grant to the Church were made but the day before the Statute, and immediately from the grant, hath the person remedy by the Common Law to recover his tithes in the spiritual Court, and needs no such Custom or Prescription as you suppose. And if any person will make title to his parish tithes by grant since the Making of Magna Charta( which he need not do, but prescribe) yet is his right and title good; and if that first Chapter of Magna Charta extend not to its confirmation, yet there be other and other Statutes enough that follow, which confirm not only Magna Charta, but the Churches rights in express terms; as take that Parliament of 1 R. 2. cap. 1. for one, which Parliament you so much insist upon.  
3. Nay, what will you say, if I make it plainly appear unto you, that that very 29. Chapter of Magna Charta, which you urge against the person, is an express Act for him, which thus I prove, The Words of Magna Charta, cap. 1. are, We do give and grant unto all the Freemen of our Kingdom, these liberties underwritten; and then names the particulars, &c. These words ( Freemen)( by Sir Ed. cook upon the place) extend to all persons Ecclesiastical and Temporal, &c. and then that 29. Chapter is Nullus Liber Homo, &c. No Freeman shall be taken, imprisoned or disseised of his Freehold, Liberties, Free Customs, &c. doth not this now in your own judgement include the Ecclesiastical person? what co●… r then have you to take away his tithes, and to deny the Churches right, though the tithes were given to the Church after the making of Magna Charta; for you are to know, that that Chapter and Statute extends not onely to the Freemen then living only, nor to the estates men then had only, but to posterity, and to all such Lands, tithes, &c. as they should acquire after, to this very time and hereafter; so that if the owner of lands, that is now discharged of tithes by composition or like immunity, should grant the tithes of such Land or the Tenths to the person of the parish, and his successors, this grant is good, and the person is Liber Homo, a Freeman within that very 29. Chap. of Mag. Char. and so is the! Appropriator also: and thus is the weapon you only fence with, turned into your own bosom, and in denying the Church one law, act and statute, you have found them out another to add to the former.  
And as for Sir Ed. cook, there is neither he nor any other Lawyer( that I know) who voucheth that Decretal Epistle of Innocent the 3. or any Canon of the council of Lateran, nor any other Canon of the Pope to ground a right of tithes upon for the Church of England; but thus we and all Lawyers of former ages say, that before the council of Lateran, men might have given their tithes to what Church they would, pointing only at the time about which, but not relying upon that Canon or Decree for authority to restrain, and let Sir Ed. cook speak for all, p. 641. that it bound not the subject of this Realm, but being just and reasonable they allowed it, and so became the Law of the Land, not by allowance of the Pope and his Clergy( as you please to have it) but by the people, which their practise ever since hath manifested; for just and reasonable things are not to be rejected, from whomsoever they come, be it from Pope or Turk, and you yourself in your Letter, p. 5. make use of such councils and Decretals where you think that they do serve for your turn.  
Now what was said in the Treatise, that there never was such an Expositio● made of that 29. Chap. of Mag. Ch. as you have made of it, for the destruction of tithes, Audacter dicam. I shall also affirm: nor have you mentioned any such Expositor, and till you do, you may please to let this that hath been said thereto give satisfaction.  
4. And as for your Exposition of the Statute of 1 R. 2. ca. 14. be pleased once again to be informed, that that Statute was made in favour of the Clergy; for when the Parishoner durst not deny the payment of his tithes for fear of being sued in the Spiritual Court, the device was to set out the tithe, which when the person had carried away, then would the Parishoner bring against him an action of Trespass for carrying away his goods; to which if the person( to draw the svit out of the Temporal Court into the Spiritual Court) had pleaded that the svit was for his tithes, the Parishoner in his Replication would aver, that his svit was for his Lay-Cattel, and not for tithes, whereupon issue being joined, this was to be tried in the Temporal Court: Now to avoid this inconvenience was this Statute made, that such a general Averment of the Parishoner should not serve, without showing how they came to be his Lay-chattels, either by the Parsons sale to him or otherwise. And that this is the true Exposition of the Statute, examine it but a little further in the form of pleading: The Parishoner doth declare in his Action of Trespass for taking away his goods, if the goods were the Lay-Chattels of the Parsons, he ought to pled the General Issue, Not guilty; for if he should pled that the goods were his own Lay-chattels, and show how he came by them( as you would have it) this amounts but to the general Issue, and makes his plea nought. And again, when the person pleads that the svit is for his tithes, to draw the Cause into the Spiritual Court( or else that plea were to no purpose) how incongruous is it for the person to aver that they are his Lay-chattels, and show specially how they came to be so, for thereby he admits the Temporal Jurisdiction, and overthrows his own ground for removing the Cause into the Spiritual Court, and the matter you would have him to aver is clearly against himself.  
And you mistake the Treatise, when you report him to say, that the Parishoner in his Declaration should have made the Averment; for he says no such thing in the Treatise, nor is it proper, as you have very well proved. But when the person comes and pleads, that the svit is for his tithes, &c. then comes the Plaintiff and replieth, that his action is for his Lay-cattel; which general Averment, says the Statute, shall not be taken, without showing how they came to be his Lay cattle: And by your own confession, such an Averment in the Replication is proper.  
And because this Objection striketh at the Parochial right of tithes, give me leave to satisfy you yet a little further therein, if you will give no credit nether to Sir Ed. cook, 2. par. Inst. p. 641. nor to what Mr. Selden hath thereupon, p. 144. 296. 361. 468, 469. and divers other places, showing that Arbitrary Consecrations ended in the time of King John, and Parochial right became a Law: You may for your further satisfaction see a Record cited by Mr. S. p. 362. 363. of the time of 49 H. 3. that in a Libel for tithes no other title is made but that the Land lies within the limits of the Parish; and he tells you there, where you may find others of the like nature of that time, according to the Law that to this day continues: And observe there another Record of 6 E. 1. which infers the same thing. And for your further satisfaction therein, he there refers you to the Relation of the English Monks that lived about the time of H. 3. which you may see there p. 147. So that I trust, if you will believe Antiquity, or give credit to what the common Lawyers have said therein from the beginning of the reign of E. 3. to this day, you will acquiesce in this Particular.  
Let meobserve one thing more, though out of its proper place, for the justification of the Right and Antiquity of the Church to tithes, that in the 13 Chapter of this very Parliament of 1. R. 2. in the preample it is affirmed, that the people of holy Church pursuing in the spiritual court for tithes, which of right ought, and of old time were wont to partain to the same Spiritual Court, &c. whereby you may see there acknowledged, the Churches right to tithes( not new, but) ancient( for else that Court could not have such right to hold plea, &c.) by that very Parliament, by which your interpretation upon this 14 Chapter would destroy them. And Marginal notes upon abridgement of statutes are no gospel.  
And but that you are still apt to mistake the Treatise, you would not have objected the Dissolution of the Parliament to have infringed what the Treatise did make mention of it for; and whether Ordinances of Parliament be determined by that dissolution, I neither affirm nor deny. But say, that you have thereby the judgement of that Parliament for the Right and Duty of tithes, whether the Ordinance itself be at an end or not, which is all that the Treatise doth city it for.  
Id Possumus quod de jure Possumus.  
God can do all things, but God cannot do an unjust thing.  
Though Supreme Power may take tithes and all that we have away, yet may it never be said, That the Minister or Appropriator was reasoned out of them, or had no right to them, or wanted Reason to defend their right.  
FINIS.