THe rule of the holy Apostle is: Against 1. Tim. 5. 19. an Elder receiue none accusation, but vnder two or three witnesses. Which rule, if it were as well obserued, as it may be easily knowne, calum­nies against an Elders innocencie would not so hastily be beleeued, [Page 2] as many times they are; nor should I now need to trouble my selfe with a taske of this kind. But hauing learned out of Solo­mon, that a good name is better then Eccl. 7. 3. a good ointment, and to be chosen a­boue Prou. 22. 1 great riches; and out of the heathen Oratour, that Dissoluti hominis est negligere quid quisque de [...] sentiat, None but a dissolute person will neglect what men thinke or speake of him: and ha­uing heard by sundrie my good friends, that vnto much vexation and distraction, vnto great trou­ble and charges by occasion of a tedious suite in Law, this also is added, that many aspersions are cast, and many speeches passe vpon me, which some beleeue, and touching which others desire [Page 3] to be satisfied: it is my desire, in regard of my ministerie, of my degree, of my seruice, and of my place of gouernment, and out of that care to prouide things honest, 2 Cor. 8. 21. not onely before the Lord, but also be­fore men, which the Apostle requi­reth, to satisfie others with those things, wherewith, I thanke God, I satisfie my selfe in this case. And to that purpose I haue plainly and nakedly set downe a simple and true narration of passages in that businesse, and of the case in that suite, 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 [Page 4] vnto all obiections, they may either cleare me in their iudg­ments, or censure me at their plea­sures.

A suite betweene M. Iohn Al­cock and me, about a Lease of the Rectorie of Charleton vpon Ot­moore in Oxford shire, long depen­ded in sundrie Courts at VVest­minster Hall, which he began in the Chancerie, and wherein after­wards sometimes he, and some­times I were Plaintiffes. Wherein the case will the better appeare, if first the state of that Rectorie be opened; which is as followeth.

The Advowson of that Rectorie being in the King, M. Dennys who was Prouost of this Colledge, and Incūbent in that Rectory, affected the purchase of it for the Colledge. [Page 5] For the effecting whereof, because the Benefice was held in Capite, and the Colledge then through want of Mort-maine was vncapa­ble of it, he put into that businesse one Andrewes & one Temple: who, according to M. Dennys his desire, purchased the Rectorie from the King, Ann. 35. Henr. 8. and in the same yeare made it ouer vnto M. Dennys then Prouost, and vnto M. Shaw then Fellow of this Col­ledge, as in trust for the Colledge. Which Rectorie being so purcha­sed and passed ouer, M. Dennys died in the last yeare of Queene Maries reigne.

M. Dennys being dead, and M. Hodgeson succeeding in the Head­ship of the Colledge, M. Alan Scot then Fellow of the Colledge, was [Page 6] presented vnto the Rectorie of Charleton, 1. Elizab. not by M. Shaw the suruiuer feoffee, but by Hugh Hodgeson Prouost, and the Fellowes of the Colledge, &c. when there was no right of patronage at all by law in the Colledge, and was there­upon admitted. Which M. Scot comming to be Prouost, 5. Elizab. made, as Incumbent, a Lease of the Rectory of Charleton vnto one VVilliam Izod, aliàs Shillingford, 10. Elizab. for the terme of 81. yeares, reseruing onely to the In­cumbent during that terme 20. lib. per annum, or 30. lib. per annum if he should serue the Cure, together with a chamber in the Parsonage; and laying all other burthens vp­on the Leasee, procured the Lease to be confirmed, as it is said, by [Page 7] the Ordinarie, and by the Col­ledge as Patron. Which Lease so made by M. Scot, as Incumbent, & confirmed by him as Prouost, was enioyed by M. Izod, aliàs Shil­lingford till 20. Elizabethae.

In the meane time M. Scot died, viz. about 17. Elizab. and M. Shep­heard then Fellow of the Colledge was presented vnto the Rectorie of Charleton by M. Bowsfield then Prouost, and the Fellowes of the Colledge, hauing as yet no right of patronage in law, vnlesse it were by vsurpation, and was thereunto admitted. Which M. Shepheard seeing the Glebe-land of the Rectorie to be exchanged and alienated by M. Izod, and per­ceiuing the Lease made by M. Scot to M. Izod to be naught in Law, [Page 8] and as bad in conscience, accor­dingly spake of the Lease, and of his purpose to question it. Where­upon M. Izod taking aduice, and finding great cause to feare the inualiditie of his Lease, tendered the sale of it to M. VVilliam Alcock, who then kept his Courts, and who being a Counsellor at Law, was better able to maintaine it, if it should be questioned, then he was. Howbeit M. VVilliam Alcock refused to meddle with it, vnlesse M. Izod would secure his peace­able possession for the space of ten yeares, hoping in that time, as it may seeme, to saue by his bar­gaine.

After sundrie passages between them, M. Izod assigned ouer the Lease to M. VVilliam Alcock, 20. E­lizab. [Page 9] with a clause of warrantize for peaceable possession for the space of ten yeares, as appeareth by the Assignement. Which Lease so assigned, M. William Alcock en­ioyed, and died seized of it, hauing before his death much molested M. Shepheard for speeches against his Lease, and at length released him of all personall actions be­twixt them, with a prouiso, that that release should not extend to preiudice any right, estate, or terme of yeares which he had in the Rectorie of Charleton vpon Ot­moore.

After M. William Alcocks death, such right and estate as he had in the Lease came vnto his widow, and vnto M. Iohn Alcock his Exe­cutor. Vpon whose comming vn­to [Page 10] it, the Lease was questioned by M. Shepheard, and for a while tra­uersed; but the suite not conti­nued vnto triall, for that M. Shep­heard was so poore that he was not able to prosecute the law, and besides had preiudiced himselfe by the acceptance of that which was reserued vpon the Lease vnto the Incumbent.

Vpon M. Shepheards death, M. Harper then Fellow of the Col­ledge, was presented by the Col­ledge to that Rectorie: who re­signing after one halfe yeare and somewhat more, for that he could not through the weaknesse of his body endure such trauell and toile for the ouerthrowing of the Lease by due course of Law, as the whole companie desired hee [Page 11] should do; I was by the Colledge presented vnto it; and, both out of the same considerations which moued M. Shepheard, and out of commiseration of the state of that people where the Benefice is, and out of my due regard of my owne dutie vnto this Colledge, and of my Companies earnest desire, and after much deliberation for mat­ter, both of Law, with many very skilfull in the Law, and of consci­ence, with sundrie reuerend and iudicious Diuines, I endeuoured to do the best seruice I could to this Colledge and that Church, for the ouerthrowing of that vn­reasonable and vnconscionable Lease.

This being the state of that Rectorie hitherto, the question [Page 12] is, whether that Lease so dimised by M. Scot, so confirmed by M. Scot and his companie, when the Colledge was not Patron in law, and by a wrong name of the Col­ledge, so doubted of both by M. Izod, and by M. William Alcock be­fore the Assignement, and so que­stioned since M. Scots death by M. Shepheard, be a good Lease, or no?

M. Iohn Alcock, though at the first he seemed by suing me in the Chancerie, to flic the Law, and to leane onely vnto conscience, yet afterwards pretended the Lease to be good both in Law and in conscience, which I euer thought (vnder reformation) to be naught in Law and in conscience.

And first, in Law I held the Lease to be naught vpon two [Page 13] grounds: first, because it was ne­uer 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 neuer confirmed by the true Patron, it appeareth, because it was neuer confirmed by M. Shaw, in whom alone as suruiuer feoffee, the patronage truly rested till 24. Elizab. when vpon the procu­ring of a Mort-mane for the Col­ledge by my Lord Bishop of Car­lile, then Prouost of the Colledge, M. Shaw made it ouer to the Col­ledge, as appeareth by his instru­ment vnder his hand and seale. Which being so cleare that it can­not be denied, M. Alcocks onely euasion is, that the Colledge had [Page 14] gained the patronage by vsurpa­tion, because their Clerke, M. Scot, presented by the Colledge, was admitted, and not disturbed. In which case, though I know not what the Law is, whether vpon our presentation a right of patro­nage will be gained by vsurpa­tion, or whether vsurpation will enable the vsurper, not onely to present to the Church, but also to confirme a Lease against the good of the Church; or whether a Lease leaning on vsurpation vpon one presentation in the beginning, be strengthened by the accesse of mo presentations afterwards; or whether the Colledge can gaine or hold a right indirectè, whereof it is not capable directè, that is, whether vsurpation can gaine a [Page 15] right vnto a Colledge, whereof it is not capable in it selfe, yet in rea­son, which Lawyers say is the ground of the Law, the plea of v­surpation seemeth to be very harsh in this case. For if an vsurper be an intruder and wrongfull posses­sor, then what is vsurpation, but intrusion and wrongfull posses­sion? And then what is the plea of right gained by vsurpation, but a plea of right wrongfully gained? And then what is M. Alcocks plea for the goodnesse of his Lease in Law, but that his Lease is good out of a right which the Col­ledge gained wrongfully? Which plea seemeth yet the lesse reasona­ble, because it may seeme, that the gaining of right by vsurpation was prouided for the good, and [Page 16] not for the hurt of the Church; which in this case falleth out quite otherwise. For albeit by the presentation from the Colledge the Church was filled, which may seeme to haue bene 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 terme of yeares in the Lease, the Church, through the smalnesse of maintenance re­serued vpon the Lease for the In­cumbent, cannot be prouided 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 errour in the true name of the Colledge, both in the Lease and in the Con­firmation: [Page 17] the true name of the Colledge being, Aula scholarium Reginae de Oxon. as appeareth by the licence of Edward the third vnto our Founder, wherein he li­censeth him to found and build Aulam quandam Collegialem de scho­laribus, capellanis, & alijs, perpetuis temporibus duraturam, sub nomine Aulae scholarium Reginae de Oxon. and the Lease being dimised and confirmed by the name of, the Queenes Hall or Colledge in the Uni­uersitie of Oxford. Which sheweth, that what difference there is be­tweene Aula scholarium Reginae de Oxon. and Aula Reginae de Oxon. the like difference there is be­tweene the name of the Colledge and the name in the Lease and confirmation, that is, a substan­tiall [Page 18] difference.

Againe, in conscience I hold the Lease to be naught for these causes: first, it is a Lease of a Be­nefice presentatiue, and with the cure of foules, where are three vil­lages, and much people: which kinde of Leases was by a whole Parliament thought vnconscio­nable and vnreasonable, and a law made against all such Leases in future times, about three yeares after the dimising of this Lease, viz. Ann. 13. Elizabethae.

Secondly, it is a Lease where­upon so small allowance is reser­ued vnto the Incumbent, as that the maintenance is not sufficient to maintaine any fit Minister for the instruction of that great peo­ple; whereof what conscience [Page 19] ought to be made, euery man knoweth.

Thirdly, the terme of yeares in the Lease is so long, that the Benefice being presentatiue for 81. yeares, that great people is in great hazard to be too much neg­lected, if the Lease shall continue so long, without euiction at Law, or reliefe in Chancerie against it.

Fourthly, the Lease is so pre­iudiciall vnto the Glebe land of that Benefice, as that thereby much of it is alienated and ex­changed with other men vpon inclosures, and alreadie growne almost out of knowledge.

Fiftly, the Lease hath bene no­ted from chiefe seates of Iudge­ment to be so vnreasonable and vnconscionable, as that it was pitie [Page 20] the Leasour had not bene hanged be­fore the dimise; to be such as I was bound in conscience to ouerthrow if by the Law I could; and to be no whit, or verie little better then sa­criledge, depriuing them which waite at the altar, of the things due to them which there waite.

Sixtly, whence was it that when the matter was referred vpon the motion of the Barons of the Exchequer, vnto Sir Iulius Caesar, Sir Thomas Parrie the then Lord chiefe Iustice, and Iustice VVal­mesley, M. Alcock refused to be bound to stand to their order; that when vpon request from the Lord Chancellor vnto those great persons of their paines againe for an order in the matter, an order [Page 21] was set downe by them, and the same made an order in the Chan­cerie, M. Alcock would not obey the order, but stood out in con­tempt thereof vnto a writ of re­bellion, and the sending of a Ser­ieant at Armes for him; and that alwayes he refused to submit vn­to a finall end by the Lord Chan­cellor, or the Maister of the Rowles, without further suite, but that his owne conscience told him that his Lease was naught in con­science?

But a valuable consideration was giuen for the Lease.

It is said that M. Izod payd for it 280. pounds, whereof 80. pounds came to the Colledge, and that M. W. Alcock payd for the Assigne­ment 400. pounds. But it doth [Page 22] not appeare vpon the accounts of the Colledge; where if any such thing were, it should appeare, that any penie came to it, either by the Lease, or by the Assignement. Howbeit if it were so, that M. I­zod payed for the Lease 280. pounds, he may seeme to be well satisfied by the commoditie of the Rectory for ten yeares before, and by 400 pounds payed to him for the Assignement. And if it were so, that M. VVilliam Alcock payed for the Assignement 400. pounds, he and his heire may seeme to be well satisfied by the commoditie of the Rectorie for thirtie yeares and vpwards, and by 500. pounds which M. Iohn Al­cock is said to haue had of M. VVhite vpon the morgage of [Page 23] the Lease.

But an hundred Markes were payed to my Lord of Carlile then Pro­uost, to the vse of the Colledge, for the securing of the Lease, as his note [...]

Whatsouer colour there be of such a note, yet by two Letters written from his Lordship vpon my desire to be satisfied in that point, and still to be shewed, it may appeare that the Colledge being in much debt at his com­ming to this Headship, that sum of 100 Markes was borrowed of M. Izod vpon fiue seuerall bonds for the repaying thereof in fiue seuerall yeares, and was accor­dingly repayed in the fiue yeares next following, and the seuerall bonds vpon the seuerall paiments [Page 24] redeliuered, and was not other­wise for any vse of the Colledge. Which being the tenour of two Letters vnder his Lordships hand and seale, is in reason more to be esteemed then an odde peece 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 yeelded to secure the peaceable possessiō for ten yeares, though M. Izod had moued him often through feare of trouble, by occasion of it, to buy it. And how can they denie the Lease to haue bene doubted of by M. William Alcock, who say that 100. markes were giuen for the securing of it, [Page 25] to my Lord of Carlile, who was not Prouost for some yeares after the Assignement?

But it is hard for a Colledge to seeke the auoidance of its owne act.

It is an act of M. Scot, as In­cumbent of the Rectory of Charle­ton, and whereinto being Prouost he drew by meanes so many of the Colledge as serued his turne, to haue a hand in the confirma­tion thereof, (as also the same yeare he did to the leasing of an Impropriation for 500. yeares, and had done the yeare before to the making away of some Land belonging to the Colledge in Dor­cetshire for euer,) which I la­boured to ouerthrow by legall courses, and not any Lease either dimised by the Colledge, or [Page 26] duely confirmed by the Col­ledge.

But it is hard to disturbe possession after thirtie or fortie yeares.

It is harder to be wrongfully kept out of possession so long. And that possession was in that time disturbed, appeareth, inas­much as vpon speeches against the Lease, it was made ouer to M. William Alcock; and after the Assignement, suite was commen­ced by M. Shepheard for the eui­cting of it, howsoeuer he was not able to prosecute the suite vnto a triall, through want of meanes necessary in such case.

But it is hard to take aduantage vpon a misnomer.

Is it not harder to auoide a cleare case in Law, which requi­reth [Page 27] confirmation by the Patron, by a refuge of vsurpation? Or is it hard in my case, which is vsuall in many cases of Colledges and Cathedrall Churches, as is well knowne by Merton Colledge, which auoided a Lease vpon the verie like misnomer as in my case, there the name of the Colledge being, Custos & scholares Collegij schola­rium de Merton. and in the Lease being, Custos & scholares Collegij de Merton; as in my case the name of the Colledge is, Praepositus & scholares Aulae scholarium Reginae de Oxon. and in the Lease the name is, Praepositus & scholares Aulae Re­ginae de Oxon. and many other like cases? Or rather is not an aduan­tage of misnomer in this case well taken, where a right is onely clai­med [Page 28] by title of vsurpation against the good of the Church?

But to auoide the Lease, is to ouer­throw the state of a poore Gentleman and his family, which is hard.

How much his estate is de­cayed through his continuall wranglings, I know not: but how much the state of soules is more to be commiserated then the state of bodies, and the states of many more then of few, so much more is the state of that people, which feeding with their corporall things cannot be fed with spiri­tuall things while that Lease last­eth, to be commiserated, then the state of M. Alcock and his family. And if further it shall be conside­red, that before any suite, I made this offer to M. Alcock, in the pre­sence [Page 29] of some witnesses, that if vpon sight of his Lease, and due consideration of the validitie thereof by foure Iudges, or other, indifferently chosen betweene vs, and informed by our learned Counsell, his Lease should be dee­med good in Law, I would neuer further molest him; and if it should be deemed naught in Law, yet whatsoeuer they thought meet for me to do out of any conscio­nable respect towards him & his, I would very willingly do it; and withall, that the beginning of the suite was from him, I hope I shall not be censured to haue bene vn­charitable, but he rather to haue bene wilfull.

But this suite was much against the liking of many of the Fellowes of the Colledge.

[Page 30] Vpon this false report and sug­gestion they all testified vnder their hands (which is yet to be seene) that out of an aduised con­sideration of the vnconscionable­nesse that Lease, dimised to the great preiudice of that Church and of our Colledge, and out of a long setled purpose to put that Lease in suite when they should haue opportunitie, the suite was at the first commenced, and stil con­tinued, not onely with their li­king, but with their great desire that the Lease might be auoided; and that they were so farre from auouching any thing to the con­trarie, as that they professed it was alwayes their purpose vpon the first auoidance of the Bene­fice, to conferre it vpon such a one [Page 31] as would trie the Lease with M. Alcock.

But some of my owne degree haue said, that for many Benefices they would not haue entred into such a bu­sinesse.

Nor would I, if regard of my oath, and dutie to this Colledge and that Church had not pressed me thereunto. Which men of my owne degree might rather deeme and conceiue of me, then seeme to censure my courses, the grounds whereof they either know not, or consider not.

But why then did not my Lord of Carlile question the Lease?

M. Shepheard was presented vn­to the Benefice long before my Lord of Carlile was Prouost, and continued in it all his time, and [Page 32] long after my coming to be Pro­uost; and durig his incumbencie, none but he could question the Lease, to bring it to a trial in Law.

But in the Exchequer, Iudgement passed long since for M. Alcock.

No Iudgement passed there at all in the cause, but after some ar­guing of the case by Baron Hearn, and somewhat by Baron Altham; vpon some fault in the speciall verdict, a new Uenire facias was willed to be sued out, or else an arbitrable course to be agreed vp­on 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 honorable Arbitrators, as af­ter much ado we had agreed vpō.

But now Iudgement is passed for [Page 33] him, and against me in the Kings Bench.

It appeareth by the order of the Arbitrators, which was made an order in the Chancerie, that the Lord chiefe Iustice Flemming, and Iustice Walmesley were of opinion that the Lease was naught in law. And M. Iustice Dodderidge, who had bene alwayes of counsell a­gainst me, and professed from the Bench, that he had very seriously studied the case for his owne full satisfaction therein, clearely deli­uered his opinion to be, that the Lease was naught in Law. But it is true, that the swaying sentence was for the Lease, vpō two points: first, because Nihil facit error nomi­nis quando constat de corpore; second­ly, because there is no substantiall [Page 34] difference betweene the name of the Colledge and the name in the Lease, but onely a transpositiō of words, which makes no materiall error. Touching the first of which points, I desire to know, whether it be a receiued rule in the Com­mon Law, that nihil facit error no­minis quando constat de corpore; and if it be, how then so many Leases haue bene auoided, so many Graunts haue bene frustrated, so many Writs haue bene miscaried, vpon misnomers? For although many instances may be giuen wherein men haue not preuailed in suites vpon misnomer, when the error was not materiall; yet certaine it is also by many instan­ces, that men haue often preuai­led in suites vpon misnomer, when [Page 35] the errour hath beene materiall. Touching the latter point also I desire to know, whether the diffe­rence betweene, Aula scholarium Reginae de Oxon. the name by which the Colledge was licensed to be founded, and Aula Reginae de Oxon. which our Founder vsed, and by which the Lease was di­mised, be not a substantiall diffe­rence. I see the license 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, & alijs, perpetuis temporibus [Page 36] duraturam, sub nomine Aulae schola­rium Reginae de Oxon. quae per vnum Praeprositū de dictis scholaribus iux­ta ordinationem praefati Roberti inde faciendum gubernabitur, construere, & de nouo 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 vnawares vsed a name substantially differing from the name whereby he was licensed to found the Colledge, I desire to know: as also, whether a Founder may swerue at all from the name whereby he is licensed to found; and whether whatsouer is put [Page 37] (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 Colledge licensed by the former words to be founded, whether this, Praepositus & scholares Aulae scholarium Reginae de Oxon. or this, Praepositus & scholares Aulae Regi­nae de Oxon. and whether out of the name, Aula scholarium Reginae de Oxon. the word Scholares, can be transferred vnto the persons, Prae­positus et scholares, and so the name to remaine as in the foundation, Aula Reginae de Oxon. Vpon better knowledge of which points, ano­ther point wil be cleared, viz. whe­ther there be an error in the iudg­ment passed against me.

[Page 38] But the cause found no reliefe in Chancerie.

I hoped for reliefe there, what­soeuer the euent should be at Cō ­mon Law, against a Lease of this nature, either by reasonable in­crease of allowance for the In­cumbent, or by abridgement of the terme of yeares in the Lease, or by prouisiō for the Glebe land, that the Church should not there­in be preiudiced; or by all of these, or some other meanes, but am yet without reliefe, and so am like to be, vnlesse after eight yeares toile and charges there as Defendant against a Lease, onely good vpon title of vsurpation, and otherwise vnconscionable & vnreasonable, I will renew the suite, and hence­forth become Plaintisse there.

[Page 39] But the suite hath bene easie for me, and hath vndone him.

In distraction and vexation, in toile and trauell, it hath bene very grieuous vnto me, and in charges it hath bene so costly and heauie vnto me, that if I had so many hundreth pounds in my purse as I haue spent in the suite, I might therewith be a very good Bene­factor vnto our Colledge. As for my Aduersarie, the suite hath bene ve­rie aduantageous vnto him; first because he during the whole suite payed nothing out, either to me, or to the Curat, 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 [Page 40] a yeare, or thereabouts, he was by his Lease to haue payed, and yet, vntill order for sequestration, re­ceiued, by the space of sixe yeares, all the fruites and profites of the Rectorie, saue some fruites which in two yeares I receiued by com­position with some of the Parish, for which I haue bin accountant. Secōdly, because the Lease, which before our suite would not yeeld 1200. pounds to him, will now, as it is said, yeeld vnto him 1800. pounds and vpwards. Thirdly, be­cause the yearely rent of the Re­ctorie is now improued vnto 200 lib. per annum, which before the suite was not aboue 150. lib. or 160. lib. per annum.

Let it then be considered, that the Lease was ab initio naught in [Page 41] Law, for want of Legall confirma­tion by the true Patron, that vpon feare of the inualiditie of the Lease and trouble by it, M. Izod assigned it vnto M. William Alcock, that M. William Alcock would not meddle with it without warrant from M. Izod for peaceable possession for ten yeares; that M. William Alcock much molested M. Shepheard with suites for disabling the Lease; that the Lease was questioned by M. Shepheard, and onely not prosecu­ted vnto triall because of his po­uertie; that the beginning of the suite betweene him and me was from him; that the onely strength whereon the Lease standeth a­gainst the maine point in Law which quelleth it, is the right of patronage pretended to be gained [Page 42] to the Colledge by vsurpation; that the error in the name is, as I conceiue it with submission, a ma­teriall error, and that many Leases haue bene auoided, and Graunts and Writs frustrated vpon such error; and againe, that the Lease is of a Benefice presentatiue, and for an vnreasonable terme of yeares, and with reseruation of an vnfit allowance for a fit Minister, and whereby the Glebe of the Benefice is exchanged and aliena­ted, and that M. Alcock by his owne courses bewrayed the testi­monie of his owne conscience a­gainst himselfe for matter of con­science; and that there is not any exception against my suite for the ouerthrowing of the Lease, but hath that due answer which may [Page 43] cleare it from aspersions cast vp­on me and it, and then let iudici­ous and indifferent men, not in­teressed in this businesse, or in the like case, censure me at their plea­sures, so as it becometh men that loue the Gospel, and the Ministers and professors thereof, and with respect vnto the cause, not vnto my person.

I am not, nor haue bene in this case, I praise God, willing to giue offence, but rather much desire to cleare my selfe from any offence which hath bene taken any way. And if I be not partiall in my own cause, that (I hope) may satisfie o­thers, which I thank God doth sa­tisfie my selfe in this case. How­beit I willingly submit all, onely wishing that men may not with [Page 44] Iosephs maister be too credulous, especially against an Elder, as I said in the beginning, but rather may beware how they condemne where God condemneth not. If I had not out of many reasons bin throughly well perswaded of the goodnes of my cause, I would not for the world haue dealt in it; and if any man think other­wise of me, God for­giue him.

I being from the be­ginning of Do. Ai­ry his intermedling in this suit, & before, acquainted with and of Councell 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 reuerend man was either Provost of Queens College, or Parson of that Church: M ^r Shepheard then Incumbent and immediate successor (as I take it) of Scot the vnhappy and vngracious Lessor, made Entry into and clayme of the Gleebe-land to [Page 2] the said Church pertayning or some part thereof. Herevpon a Bill was exhibited a­gainst him in the Chauncery by Izod alias Shillingford (if I mistake not his name) being the first Lessee or his Executor. Shepheard herevpon came to me requesting me to bee of Councell with him and to draw his An­swere, which I did: But so poore he was that after the taking out the Coppy of the Bill & paying his Atturneyes fee, his purse was empty and therefore I was of Councell with him in Franckalmoigne. After this he came to me in the Countrey requesting me to moue the said Colledge being then Patrons to as­sist him with their purse to bring the said Lease to trial, telling me that he had M ^r Plow­d [...]ns opinion for the auoyding thereof: I did accordingly moue M ^r Doctor Robinson then Prouost, to that purpose: but the An­swere that I receiued was, that if he would resigne or when the Church should become void, the Colledge (presenting an able Prea­cher) would be at Cost in the suite: but not for him, who was eyther Potentia or actu no preacher, or to this effect in substance: it be­ing hard to relate phrases and syllables twen­tie yeares after, for so long I take it to be. Thus M ^r Shepheard hauing but 30 poundes per annū bare rent for him his wife & Chil­dren [Page 3] was glad to sit Downe and let the Title of the Lease rest for want of ability to pro­ceed in suit. After this the said Lease (in parte at least (viz: for one or two More­cor & Fencot to my re­mēbrance. villages within the parish) was offered to be sold to M ^r Temple then of Water Eaton, now S ^r Thomas Temple, who wanting provision of Come to his house as it seemed was willing to haue bought it, lying not far from him. But vpon inquiry finding the validity of it to bee vn­der question refused to deale therewith. M ^r Alcocke finding it not currant in the Coun­trey, after gat money vpon it in London viz: of one M ^r White the sume of 500 pounds vt dicitur, and this was as I take it immedi­atly vpon Shepheard his Death or in his last sicknes. After the Death of Shepheard M ^r Doctor Airay being instituted and induc­ted into the said Church, before any suite by him cōmenced for auoyding the said Lease, The said Alcocke exhibited his Bill against Doct. Airay as knowing the time was come for bringing the validity of the saide lease into question according to the intention and purpose of the said Colledge long before published & discouered. Therefore he now sought reliefe in equity as doubting himselfe his strength in law. Doctor Airay on the o­ther side aduised in my presēce both touching [Page 4] the point in lawe, and touching equity with two ordinarily comming that Circuit and others, men of as great note for learning and Iudgement in the lawe, as any of their tyme. Their Iudgement was▪ both that (the Lease was voyd in law, and that it being of a Bene­fice▪ with Cure of soules, Chauncery nor e­quity would neuer vphold it. Suite was there­fore hereupon commenced at the common lawe, and vpon reference before it came into the King [...] Bench, S ^r Thomas Flemming (either when he was Lo. chiefe Baron or chiefe Ius­tice of the Kings Bench) and M ^r Iustice Wal­ [...]iester▪ certified vnder their hands the same opinion in Lawe touching the invalidity of the Lease. In the Kings Bench, M ^r Iustice Dotheridge, who had bin of▪ Alcocks Coun­cell in the Exchequer, and there argued for him, yet as a Iudge in the Kings Bench, gaue his opinion against the lease (viz: that it was of no validity:) Adding, that it was▪ as like to Merton Colledge case, (wherein the Lease though not as this of a Benefice was adiudg­ed voyd) as one egge to another. These things thus being, can any blame Do: Airay for thinking the Lease not good in law? How and where should he attayne to greater knowledge of the law then these Counsellors of great reputation, nay then these three Iud­ges? [Page 5] 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 iustly to be thought, voyd in law yet it was against conscience to seeke toa­voyd or ouerthrow it. Vpon this I must demur, For this then wilbe the Case: A leafe 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 tyed 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 straunge question, such as would make paper blush to beare as a question, were it capable of blushing. For since the voyce of Conscience is lowde and playne against the making of such leases, is it possible she should dissemble and whisper in corners for the vpholding and supporting of them? Certain­ly, this voyce if any such bee is but of fals [...] nominata Conscientia, as S ^t Paul speaks of Scientia. And to find out whether it so be or not let vs consider of the institution of Bene­fices, & the end of the endowment of Chur­ches with Liuings, and this is declared by the statute. 3. R. 2. Cap. 3. to be; That the Bene­fices thus endowed, should be giuen to ho­nest and convenient persons, for the seruing [Page 6] and honouring of God diligently, the kee­ping of hospitality, the informing and teach­ing of the people and the doing of other no­ble things pertayning to the care of soules. This is the Iudgement of the wisedome of the Land viz: of the King, the Lords spiritu­all and temporall, and the Commons. And can then Conscience speake beyond law for the Diuersion and alienation of these liuings from those publique and pious vses yea from their originall Institution to supply a priuate Kitchin? Let vs in this also heate the voyce and Iudgement of the whole Realme (and turpis est pars quae cum suo toto non conuenit.) In the raigne of K. H. the 8. A ^o 32. Cap▪ 28. A lawe was made to make good and firme all Leases for reasonable Terme viz: not a­boue xxj yeares or three liues of lands vsu­ally letten made by any, seised in their owne rights (though in Tayle) or in the right of their wiues or of their Churches so as the old & accustomed rent were reserued. And what then for Leases by Parsons and Vicars who are seised in right of there Churches? The whole Realme thought fit these should be excepted and not bee made good, though thus for a reasonable terme as by the Sta­tute appeares. But it may be said that yet a Parson with Assent or Confirmation of Pa­tron [Page 7] and Ordinary might make a lease for any long terme. True, by the permission of the Common lawe, the whole trust being re­posed in these three to preserue the Churches rights and possessions, and so also might the whole inheritance be aliened if they three all concurred. But this was neuer approved by Parliament: but contrariwise as knowledge and piety more increased, so was it more re­strayned and suppressed. Therefore A ^o 13 Elizab. which was shortly after the Date of Scots lease, were two Actes made, the one a­gainst long Leases by Colledges and all ha­ving spirituall liuings branding them with this note, first that they were vnreasonable. 2. that they were the Cause of Dilapidati­ons. 3. That they were the Decay of spiritu­all liuings and Hospitals. 4. That they were the vtter impouerishing of all Successors In­cumbents of the same. And therefore it was enacted Cap. 10. That no lease of such or like liuings other then for xxj yeares or three liues howsoeuer or by how many soeuer confirmed should be good or of force. And least yet Parsons and Vicars might with Confirmation of Patrons and Ordinaries preiudice the Church so long as. [...] xxj yeares, It was enacted Cap. [...] Lease by such should be good or of force [Page 8] longer then the Lessor should continue resi­dent, without absence, aboue 80 dayes. So as by Death of Lessor (if not sooner) it must fall to ground, (no hurt being that each, for his owne tyme of life and residence, might by lease, for the better applying of his study, free himselfe from husbandring his Gleeb, or col­lecting his Tithes.) And this Law in the pre­face expresseth this Cause of that Provision (viz:) that the Liuings appointed for ecclesi­asticall Ministers, may not by corrupt and indirect dealings be transferred to other v­ses. So that this making of Leases is termed and iudged a Transferring from the originall Institution, and that Transferring is by the Iudgement of the Realme a corrupt and indirect dealing. And in truth this Leasing is as much in effect or hath as much euill in it as an Impropriation for the time, & the time in our case being aboue 80 yeares, is of no smal length. What then if in some Cases, arte and ingeni [...], as one Statute speakes, a practise haue beene to doe this eiull eyther by long lease or Impropriation; but Digitus Dei being in it hath made this wicked act to haue a gappe or flaw left, and to fayle in some cir­cumstance materiall to giue it force in. Law. Must the Conscience of the succeeding In­cumbent helpe to make vp this gappe by [Page 9] confirming or affirming it to be of force and strength and so admitting it when lawe hath giuen it no such strength? What is this but vltimam manum apponere to approue & par­take in the wicked acte of the Predecessor: to see a sacrilegious person, and as the Psalme speaks of a thiefe to runne with him to helpe to perfect his theft, and locke vp the doore of Restitution, which the Law had set or left open? Nay, what is it but to make Consci­ence opposite to, & to giue ayd and assistance against the end and Institution of Benefices, viz: the diligent seruing and honouring of God, keeping of Hospitality, the reaching of the people, and doing other noble things appertayning to Cure of Soules as that Sta­tute. 3. R. 2. speaks: nay, to be helpful to that which is vnreasonable, a cause of dilapidati­ons, and decay of spirituall liuings, yea a cor­rupt and indirect transferring of them to for­raigne vses, as we heard the Statute. 13. Eliz▪ speake; yea an exposing of the people to the seducement of Iesuits & priests, & to their re­cōciling of thē to the Sea of Rōe absoluing & dischardging of them from all obedience duty and Allegiance towards their Soue­raigne, and so preparing them for vnnaturall and daungerous rebellion, which the same Statute cap. 2. declares to be the effect and [Page 10] Consequence of the want of good Instructiō occasioned by the diversion of the pastorall maintenāce. Now if any wil make conscience so vnconscionable as to play this part he de­serues, mōstrari et dicier his est, euē to be poiuted & wondred at. Yet let none wilfully mi­stake or peruert my words: I say not that Conscience should goe so farre as to pull Downe and ouerthrow such leases if they haue their full strength force and perfection by law: Factum valet quod fieri non debuit. In such case only perhaps an act of Parliament may iustly demolish this lewd edifice and building. But I say where the Lawe vpholds it not, suppose only a Deed written signed & sealed but wanting Deliuery, or confirmed by Ordinary & not by Patron, or by Patron & he within age, or the Patronage entayled, or bee it otherwise Defectiue, Conscience I say rightly guided must reioyce that the Lawe hath not giuen it full strength, and not either belye the Lawe that it doth make it good where it doth not, or supply that strength to it which it wanteth in lawe. Here­in therefore no blame can be fastened vpon that worthy man viz: that he brought this euill contriuance of a Diuersion from good & holy Institution, to the Ballance or Stan­derd for triall. And M ^r Iustice Crooke Deli­uering [Page 11] his opinion in lawe for the Lease so expressed his cōscience, that it was pitty if it could not be avoyded by the Rules of lawe, being so ill and so vngodly an acte. If any shall say that it being assigned ouer to a Pur­chaser must turne the winde and make con­science goe on the Leases side, hee is much deceiued; For then euery such vnconscio­nable lease whereby as in our Case euen house as well as Liuing 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 bee as­signed to B) should make Conscience turne as easily as the wind. It is a rule of law in such Cases caueat Emptor, nam nouisse debuit se imemere alienum, and againe, Quod in initio non valuit, tractu temporis non valebit. Nay it is a rule both of Reason and Religion, Melius vt pereat vnus quam vnitas. The bodily Death or Destruction is not to be valued with that of the Soule, as was taught by the best Ma­ster that euer was, much lesse must the cor­porall Provision of or for one person or fa­mily ouerweigh and supervalue the spirituall provision for many persons, many Familyes divers Townes and Villages, nay the King­domes safety. If any obiect the validity in [Page 12] Law of this Lease, they returne to the first point and blame him for not foreknowing what Iudges would resolue better then his Councell, which to doe is (absit indignatio verbo) very absurd. For suppose the Vniver­sity, by their Councels advice, try in law a Contriuance of a Recusant, to defeate them of an Advowson, or Presentation to the Church, and that the Iudges should not in some Case conceiue the Statute. 3. Iacobi, to reach so far, or be taken so liberally as their Councell (being of great ability) thought: it rending to so good a purpose for the Chur­ches good: shall the Vniuersity be blamed for bringing the Case to triall in Law? Absit. Be­sides that as many Iudges haue (as appeares by the premisses) beene in law against the Lease made by Scot, as for it. It would take vp a great deale of labor and paper to set downe the many Leases and Conueyances which by severall Iudgements haue beene auoided vpon Mishaming; yet in this Case that was not properly the point, but the Colledge only confirmed as Patron, where the Patronage was in others. To helpe this, it was alleadged, that by a wrongfull presen­tation the Colledge had gayned the Inheri­tance of the Patronage as by vsurpation. And to auoyd that, this misnaming was [Page 13] stood vpon chiefly in this wrongfull presen­tatiō. Nay a case is in one of our late Bookes printed, of a lease made 2. Ed. 6. of a Parso­nage Cooke 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 beene enioyed aboue 50 yeares,) auoyded by Iudgement & euicted from the sixt or more remote purcha­sers (without any reliefe in equity,) I will not say vpon a nicer point then was this in our Case, but surely to mine eye & apprehension lesse discernable. Thus it is evident that iust­ly no scandal nor Imputatiō can for this mat­ter be cast on this reuerend man. And other­wise he was doubtlesse one of those, of whom: S ^t Paul sayth, Tales in pretio habete, a true Labourer in Gods haruest, one that sought not himselfe, nor great things for him­selfe. Let vs therfore honour the memory of such, & feare that woe denounced against them that call euill good, and good euill.