For the sacred lavv of the land. By Francis Whyte.

The Preface.

I Take not upon me to censure this age by the wisdom and constan∣cy of those which have gone before, per∣haps when we have at∣tained to the perfection of things, it is not easie to make a stay, naturally where we cannot proceed, we must go back; there may be an unhappy weaknesse of men not to love long, be the object ne∣ver so excellent, a weaknesse born with us, and which Nature onely is to be blamed for. I should think so, if the Nation were a weary of their old Laws and this were a disaffection of the whole body. We know the five thousand of Athens, those who would be called so, go for so many, were but four hundred. The full enemies here, whose hatred to the Laws is as antient as their name, and being, are the dregs of the basest

of the people, neither considerable for number, nor worth: No more the body of the Nation, then the smallest rotten part is the whole; made up chiefly of Anabaptism or Levelling, referring all things to themselves, willing to embroil every where, of restlesse spirits, and not likely to be satisfied with any form of Government, nor with any Laws, it be∣ing Order, and Law, of what kinde so∣ever they strike at and undermine, Break∣ers of all Lawes, and enemies of the league of mankinde, whose fanatick giddiness is such, * 1.1 they will like nothing they do not set up, and will ruine eve∣ry thing they do not like, with whom Lex una legem nolle, whose principle of Anabaptism it is, That there shall be no principle; who would live as they list a 1.2 But should these mens discontents prevail, what would become of the next age, there being the same dominion of inconstancy still, the same irresolution must pursue the posterity. If we be more just, and righteous then our forefathers it will appear by our actions, but if they be irregular, we must be bounded by rules. Yet to these wicked heads who abhor all Law, b 1.3 condemn Magistracy, de∣ny propriety, and are pleased with no∣thing

but that communion which beasts enjoy in their wildness. It is as great an absurdity as any of theirs to talk of Law, unlesse it be first made plain, That there is any dominion, or propriety which may make that Law of use. For if according to these Brethren (whose dreams are Oracles) there be none, then are we alwayes in the state of war, (unles all men will be contented to gather crums under a King John of Leyden's table) and the strongest arm carries all. For the Leveller a neer kinsman, either we know not yet (which is the most lik∣ly) his ful meaning, Or he is not got past the old Agrarian Gauel-kind, so often contended for, almost to the destruction of the then but budding Rome, by the Tribunes there. Where it was the great re∣ward of seditions, that all distinction being taken away, no man might know himselfe nor his. (So Livie in that speech made for the Consuls M. Genutius, and P. Curtius, * 1.4 against Canuleius the Tribune and his Lawes.) However, our Leveller is too unreasonable to fancy such equa∣lity of Lands, and Honours, it being a∣gainst the Law of Nature, which made some, more wise and ingenuous, more resolute and adventurous, others, block∣ish,

dull, and stupid; some (as if of purpose) fit to command, others to obey. It is highly injust too, that the frugal painful man should gain nothing by his honest industry, nor the riotous disordered sot, lose by his debosh disso∣lutenes. c 1.5 Il n'y eut jamais de Republique ou ceste equalité de biens, et d'honeurs fust gardee, saies the French Bodin. This equality could no where be kept: with it there can be neither Magistrate nor Lawes. As to the pretended fan∣tastical communion of these Arrep∣titious ones, so much admired by Poets, lactantius will not allow it in the first ages. He puts this construction upon those Poets who are so much for it. Not that we imagine nothing then (saith he) to have been private, but after the man∣ner of Poets figured, that we may under∣stand men then to have been so free, not to inclose their fruits, that alone they might sit over things hidden, but admit the poor to the communion of their own labour d 1.6. Which the famous golden age should be, when the earth and all things else for the use of man, were as common as the light of the Sun, Ceu Lumina solis & aurae, I can∣not finde. Adam as is observed, was the universal Lord of things by donation

from God, & not without a private do∣minion, e 1.7 or propriety excluding his chil∣dren without his Cession or assignment, by which they had their Territories di∣stinct in his life time in their own right f 1.8. (which proves this home) Abel who is a feeder of sheep, had his Cattel and Pa∣stures; Hence is Cain called a tiller of the ground, & had his Corn and Corn∣fields. His place Nod, where he built his City Enoch, and seated himself. That the earth was divided soon after the flood appears by these Texts. The name of the one was Peleg, for in his dayes was the earth divided. These are the sons of Shem after their fathers, after their tongues, in their lands, after their nations. Again, These are the families of the sons of Noah, after their generations, in their Nations, and by these were the Nations divided in the earth after the flood g 1.9. Cham had the south, Sem the east, as Josephus, Eusebius, The Chronicle of Alexandria, &c.

Grotius speaks thus; Things came into propriety, not by the onely act of the minde (for how could some know what others would have to be theirs, and abstain from it, and many might desire the same thing) but by a certain pacte expressed, as by division or tacite, as by occupation, for as soon as com∣munion

displeased, nor was any division instituted, it ought to be thought that all agreed, that what any one occupied he should have it for his owne h 1.10. Now though hu∣mane will is made to bring in the domi∣nion, or propriety now in use, which may fall short of the full title, yet hee addes, That introduced, it is unlawfull for me to take that from thee against thy will which thou hast a propriety in. Natu∣rall law it selfe shewes, that long or continuall occupation or possession, and lawfull taking the profits is sufficient ti∣tle. i 1.11 That tricke of the Spaniards to colour their invasions in America, that the people there abused what they had, and might be justly forced to quit it to those who could use things better, was condemned more justly, though not as theirs: k 1.12 more for the first occupant, the ancient owner, having perhaps not onely improved what he found not pos∣sessed by any other, but by his labour made it delightfully habitable for man: what reason is there, a stranger of ano∣ther clime, who has consumed what hee had there, should claime a share in the possession; nay what adventurer, who shall at his owne charges bring others with him, (as in the first

rudeness of the world, And since, when the first homes were too much crowded, the descendents of the Patri∣arkes and others, as Captaines of Co∣lonies, fought out new places for them∣selves, and those who ran their for∣tune:) I say, what such adventurer has not good right to plant himselfe upon the best soile of his new discoveries, and assigne his followers their proportions, which no second commer ought to beat them out of? Every man we know in the first ages made wells his owne by oc∣cupation. l 1.13 It is plain this propriety was amongst the Jewes, and allowed by them; besides that command from God, Thou shalt not steale. Abraham their father tels the King of Sodome, I have lif∣ted up my hand to the Lord, &c. from a thread to a shooe latchet, that I will not take any thing that is thine m 1.14. God by a Co∣venant gives Canaan to his seed n 1.15. The same Abraham purchases the Cave of Machpelab, he gives all he has to Isaac o 1.16. Jacob buyes a parcell of a field where he had spred his tent, at the hand of the children of Hamor, Sichems father, for one hundred pieces of money or Lambes o 1.17. Moses and Joshua divided the Holy land amongst the Israelites; It is said, And

Moses gave inheritance unto the halfe Tribe of Manasseth, and these are the Countries which Moses did distribute for inheritance p 1.18: But this distribution made not the Tribes inter-commoners, the Families had their distinct inheritances; Hebron (as the Holy Booke) became the inhe∣ritance of Caleb, &c. to this day q 1.19. This was the lot of the tribe of the children of Ju∣dah by their families r 1.20. Ruth gleanes in the fields of Boaz. Naboth had his vine∣yard, the Shunamite is restored to her field again by King Jehoram. The na∣tions were for propriety, Abimelech the King of Gerar is reproved by Abraham in these words. Because of a well of wa∣ter which his servants had violently ta∣ken away; He answers, I heard not of it, but to day; s 1.21 Joseph (as we read) bought all the land of Egypt for Pharach, onely the land of the Priests bought he not t 1.22. Nor did our Saviour, who was no judge (as himselfe speakes) of inheritances, take away the law of propriety, more then any civill law else; but the law of Mo∣ses only, and that partition wall which separated the Jews from other Nations. u 1.23 That after, of the possessors of lands who sold them, and laid the prices at the Apo∣stles feet; and of Ananias, who seld, &c.

can make nothing against this, being a voluntary act, an huge triall of a rich converts piety, still as Saint Peter to A∣nanias; Whiles it remained, was it not thine owne, and after it was sold, was it not in thine owne power. This is more plain by our Saviour in three of the Evangelists, where he tries the faith of a rich man, sell all (saies he) which is liked well enough by them; But then followes, And give to the poore, which will not please much. These meek ones are meerly for taking away, neither hath this Communion been faithfully observed by themselves. The successor of the great Prophet at Mun∣ster (their stie, or kennell,) not only claiming the throne of his father David (as they speak) but the Empire of the whole Earth. So only power, and riches in others are abominable and un∣lawfull; * 1.24 And in the siege of that place their mock-King had his private store∣houses, for himselfe, his phrenetic apron Peeres and whores, whom hee feasted daily, while the racaille, the rascallity of the herd drop down on heaps starved in the streets. But although we cannot imagine Adam the most wise, and most excellent of men, and the Patriarches

of the new world, (who out-lived the ages of Kingdomes, and Common∣wealths, who had lives as long as the arts are said to be) so rude, to live on prey and the snatch, with as little ho∣nesty, and civility as wee finde amongst the Alarbes, or those of Florida, whose character is, that they are barbarous sor∣did and inhumane; although I say wee cannot imagine this, and it is demon∣strated that there was dominion and propriety in the Golden Age, as men love to call the first time; yet there was no such great need then as since to make division either of cattell or pasture, (for gold and silver were then of no use, and in Mexico and the West, served onely of late for armes and common utensils) the number of men being small, and not divided perhaps so much as into large families, when dens and woods are fancied houses, and coverts, and skins of beasts clothes; when (to omit fancies) men were more civilly bred, and knew more from the instructions of the Pa∣triarkes then (as it is likely) any since, whom they obeyed, and reverenced wil∣lingly, more out of piety then fear, as in a paternall government, where the Father as chiefe of the house, was the

Prince and Priest of the Family, and every wrong was done to a brother, an unkle or a kinseman. But when men began to spread into Families, Tribes, and Nations, not contented with the homelinesse and simplicity of their Fa∣thers, nor with things freely growing, and at hand, every man imployed him∣selfe to get those things which he con∣ceived necessary, either for his subsi∣stance or pleasure, which no man would have done, if like Ʋirgils Bees, or Oxen, he had not toyled to his own benefit. This made Noah plant his Vineyard, and others busie themselves to finde out all those arts, which might either make the earth fruitfull, or delight and pro∣fit themselves; so that (as we finde it in all Histories) there was a necessity for propriety then. And as with great reason, and I may say of divine right, propriety came in, without great wrong, and universall confusion it cannot be taken away: the least concessi∣on, the least slackning of this law of propriety must be fatall; a huge licence and deluge of injuries would follow, when our experience makes it manifest, that lawes in force, and all the Courts of Judicature cannot reftrein the inju∣stice

of wicked men, from griping the just and lawfull inheritance of others: kill, and possesse, would bee familiar. Our owne advantage would be the mea∣sure of right, we should return to, or rather set up that state which is called meerely naturall, in which it is said eve∣ry man might do what he listed, and against any man, in which every man might possesse and injoy what hee would and could wrest and force from another. Those who removed the Terminall stones, or boundary markes were punishable by the Civill Law; w 1.25 which certainly as many others in the twelve tables might be taken out of the Jewish Lawes given by God; By whom Cursed is he that removeth the marke of his Neighbours land: a plain grant of pro∣priety, if any thing can be plain at all. As is observed: This hath been gene∣rally received amongst all Nations, if we except some few, such as the Cani∣bals of Guadalupea, who yet devoure not one the other; x 1.26 or such savages living ever upon spoyle and inhumane robbery, whom no civill eye will take to be reasonable, nor manly, not by the outside. Cicero in the case of hunger would not take bread from another

who deserved it not; my life, saies hee, is not more worthy then such affection of minde, not to hurt or wrong any man for my owne sake y 1.27. Zenophon tels those of Sinope, that either amongst the Greekes or Barbarians, where the market was denied him, his manner was to take what he wanted by force, yet out of ne∣cessity z 1.28. Armatus leges ut cogitem, this was the Philosophy of the field. That of Curtius has more justice in it; Melior est causa suum non tradentis, quam pos∣centis alienum. His cause is better who yeilds not up his owne, then his who demandeth that which is another mans. If this violence were common law, and allowed, one hour of our greatest peace (if any peace could be) would bee lesse secure, more pernitious then the plun∣der and sack of unruly warre, which how boisterous soever it be, like rivers overswolne, returnes often into its own channell, and leaves the harrassed Citi∣zen, or naked Peasant, to begin sadly the world again, to lay the foundation of a new fortune which may be more firme, which at least for a while he may enjoy alone; in the other case our owne unworthy sloth, would be Zeno∣phons necessity. The Scythians (as A∣rian)

having no certain seats, nor pos∣sessing any thing, the love of which might restrein them, continually are in war, disquieting themselves & others a 1.29: Whatsoever can be said for necessity, it is impious and unreasonable to frame pretences of injustice upon necessity of our own making. Piety too, upon which in all our distresses before our own industry we are to rely, would bee no more thought of, Nemo tamen arma∣tus opem a diis petere sustinuit. The fan∣cy that there could bee any continuall justice in such communion, were all mens desires and appetites more alike and equal, then we can look they should be; and the supposition that after the manner of a few Spartans, and their Phiditia (whither yet every man brought his owne proportion of meat) all mankind, nay the herd of these meek ones who are only to inherit the earth, could incorporate into an uni∣versall Utopian communion and agree∣ment; where the Lamb and the Wolfe should reconcile, all dispositions and tempers, mix freely, and sympathise, would be as impossible as monstrous, as that new and more then African gene∣ration, or Common wealth, where the

damned are allowed procreation, and shall beget others to be damned. This alone may condemn these Commoners, and their Communion: It was never known, that any of them who cry up division, had any thing to divide. Other hereticks there are to serve their turn at Rome (if no where else) who allow dominion or propriety, but (so heaven∣ly are the Nephews of Loyola and their allies) It must bee founded in grace. * 1.30 These have been sufficiently answered by some noble Pens of our side, and of their owne. Doubtlesse if there were a∣ny such thing, Saint Paul either knew not of it, or forgot it in his appeal. Had this been Primitive Apostolicall truth, our Saviours blessed legacy of peace charged upon his successors with so much earnestnesse could not have been kept two daies; the waters of baptisme had quickly been discoloured with blood; and although the piety and glorious devotion of some of the first converts, was so forward to give every thing to the Church, that by the Impe∣riall Edicts of amortization, after it was thought fit to bee restreined; Yet all were not of the same spirit, some would willingly have made this advantage of

their faith, and ere faith it selfe could be setled, have raised those troubles upon this colour in the beginning, which perhaps had not only given a check, and stop to the happy progresse of the first planters, but with the generall offence and scandall of the most moderate in opposition have swallowed up all rights, divine and humane together. Farther, if this were authenticke, the condition of Christians would be more hard and unhappy, then that of their infidelity before; And that of our Sa∣viour, Seek the Kingdome of heaven first, and all things else shall be added to you, more specious then true, (and which were most horribly blasphemous) meer∣ly a show of words; whereas in truth it should be, seek the kingdom of heaven first, and all things else shall be taken a∣way. As we have a right to our pro∣priety by nature, grace which follows it cannot weaken it, not destroy it, but perfect it rather: This hath been long since received in the Schooles of Di∣vines b 1.31. For the author of both lawes of nature and grace being the same, what he has established in the one, hee takes not away in the other; nor doth he superinduce grace, that he may untie

the bond of nature, but that hee may bind it the more: And amongst no men (I will not say are) ought to be so sacred the duties of nature, as a∣mongst Christians. And although the friends of this paradox may pretend, there is full propriety still with, or at least a condition annexed; let them show how such propriety can be full, and how it came to be so setled. In the Pontificate of Gregory the seventh, the Vice god according to the stilo novo: This error began, as some of their owne Historians confesses ingenuously c 1.32. Pain∣full discoveries to accomplish arts and sciences are highly honourable, but in these last daies to start new articles of faith never heard of in the first, and pu∣rest ages, to serve the designe, to extend the Papall power (called omnipotency) so farre, that that which in its owne nature is evill, by it shall not be evill at all, is an intollerable wickednesse, e∣nough to make all men avoid them. And since the best arguments now for lawes are from the Estate, those who ei∣ther by their own providence, or the frugality of their ancestors are full and of considerable fortunes, must know they cannot be safe without lawes; the

fangles of these desperate fanaticks who every day arraigne these sacred tables, nor can nor will preserve them, by the just and wholesome sanction of the laws obeyed and reverenc'd, not by the charmes of Sybils leafes, or Numa's shield did the Roman Common wealth advance her lofty head. Major haere∣ditas venit vnicuique nostrum a jure & le∣gibus quàm à par••rs••ibus. No man is assu∣red, He shall either keeps his estate or transinit it to his posterity, but by the lawes; let the inheritance be what it can be, there is more taken from the lawes which direct and fix the descent and wall it in, then from our parents. The poorest necessitated man, amidst the ca∣lamities of this wretched life, were not the law his sanctuary, would yet bee more unhappy, whatsoever his loathing his present condition may make him imagine; oppression the heaviest of all miseries would crush him to pieces, and break the repose of his shortest slumber: without law, (as it is observed) neither could the merchant passe the seas, nor the traveller the highway. The malice of the clowne, the fraud and dark arts of the City would surround us, and what most we prize, though wee want

the comforts of it, no mans life cold be safe a minute; nothing would bee sure, nothing certaine without law; There could be no commerce, no con∣versation amongst men, Kingdomes and states (as Sir Iohn Davies) would be dissolved; this protects the orphan, the widdow, and the stranger d 1.33: this is a pillar of fire, a glorious starre guiding all men through the darknesse of hu∣mane actions. I know there are those will tell us, that though this be true, these paines may be saved, that where there is no transgression, law is in vain, and a caution too much, that there is a succession of men entered, or ready to enter with the Chiliasts, if there bee room then, non vox hominem sonat, as the Donatists used to brag of themselves, where every one shall be good, and just, so clean so pure and angelicall, that they may say beyond the Gnosticks not onely that they like not the lawes of nature or men, but that they were not needed, they could live innocently and righteously without them; I wish it, but I hope no man will thinke me a Timon, a man hater, if I cannot beleeve all this; I have not found it so: I should think it more safe to trust lawes then

men, he who would shake off the lawes, will hardly be bound by conscience. I cannot conceive otherwise, but if things were come to that, that Lawes and Chancery were to be seated in every mans breast, there would be much more dishonesty then there is, our owne inte∣rest would be the principall mover: There has been much foule play, much deceit under the shadow of goodnesse, there may be a sanctity meerely of the face, that of the Pharisees was no dee∣per; * 1.34 They devoured widdowes houses, and for a pretence made long prayer. It will be time now to show what law is, then to descend as orderly as I can to our own lawes, (and to make it visible, that there is nothing singular in them, from other the most ancient laws of Christendom. But wherethey excel them in justice mercy and certainty, and in antiquity too; if wee look upon the fundamentals, and back to the first rise.) Next to remove those false calumnies which the rash lightnesse or malicious ignorance of the adversaries, (as ma∣lignant clouds betwixt the sun and us) has cast upon them. Vt quisque est im∣peritior administrationis & necessitatum publicarum tanto plus sibi arrogat in legi∣bus

interpretandis, we may say, abolendis; The more unskilfull any man is of go∣vernment, and the publicke affairs, the more will he arrogate to himselfe in interpreting or abolishing lawes. The pride and selfe conceitednesse of an ig∣norant as it is commonly the greatest pride, so it is the most dangerous; whose suppositions at the most are the great arguments, and whose imaginati∣on, not demonstration, if it must pre∣vaile, no foundation can be so fast but it must be shaken: a weather beaten ship in a winter sea may be our emblem, eve∣ry day tossed and bruised betwixt shelfes and rocks without an anchor, and where never any unhappy lost men could find a haven.

Notes

• * 1.1

  Homine im∣perito nun∣quam quid∣quam inju∣stius.

  Qui nisi quod ipse fa∣cit nihil re∣ctum putat.
• a 1.2

  Vid. Sleid l. 10.
• b 1.3

  Sleid. ubi sup.
• * 1.4

  Lib. 4.
• c 1.5

  Republ. 939.
• d 1.6

  De jnstit. c. 5.
• e 1.7

  Gen. 1.28.
• f 1.8

  D. Seld. Ma. claus. 13.
• g 1.9

  Gen 10.25.31, 32.
• h 1.10

  De jure Belli. &c. l. 2. c. 2. sec. 2.
• i 1.11

  D. Seld. ma. claus. 1.
• k 1.12

  Concil. Trid. 402.
• l 1.13

  Gen. 21
• m 1.14

  Gen. 14.
• n 1.15

  Gen. c. 15.
• o 1.16

  Gen. 23.25,
• o 1.17

  Cap. 33.
• p 1.18

  Iosh. 13.
• q 1.19

  Iosh. 14.
• r 1.20

  Cap. 15.
• s 1.21

  Gen 21.
• t 1.22

  Cap, 47.
• u 1.23

  Eph. 2.
• * 1.24

  Sleid. l. x.
• w 1.25

  Modest. l. 2. de term. •• moto.
• x 1.26

  Pet. Mer. Dec.
• y 1.27

  Offic. 111.
• z 1.28

  Cir. min. exped. 463.
• a 1.29

  Arrian. 202.
• * 1.30

  Iac. rex. Cont. Card. Perren. Tor. Tort. wid. Apolo. Barcl.
• b 1.31

  Tert. Tert. 203:
• c 1.32

  Godf. Viterb. in Hen. 1. Otho Fri∣si••g. l. 2. H••st. c. 35. l. 1. de gest. Frid. ez 1.
• d 1.33

  See Sir I. Dav. Pre∣face.
• * 1.34

  Mat. 23.