AS it is a worke of the Law of Nature and of Nations, of hu­mane and divine Law, to bury the Dead▪ so it is to administer that which necessarily conduceth to it, the Place and Office of Buriall. Gen. 4. 11. Lucan speaking to Caesar touch­ing them hee left slaine in Pharsal. lib. 7. pa. 7. 161. Nil agis hac ira, ta­besne cadavera solvat, An ro­gus, haud refert; placido natura receptat Cuncta sinu, finem (que) sui sibi corpora de­bent. So like­wise that of Mecaenas—Se­pulit natura re­lictos. If man were so impious as not to affoord it, the earth to his shame will do it: shee will open the pores of her body, and take in the bloud; shee will send forth her children, the worms, to bring in the flesh of their brother; and with her mantle, the grasse, as with a winding­sheet, shee will enfold the bones and bury all to­gether in her owne bosome. Men (in passion) refuse oftentimes to doe it to their enemies, to wicked persons, and to notorious offenders; but shee, as a naturall mother that can forget none of her chil­dren, doth thus for them all both good and bad; teaching us thereby▪ what wee should doe for our [Page 2] brethren, and branding those with impiety that answer with Cain, Am I my brothers keeper?

The drift of my speech tendeth to the reproofe of a custome grown up amongst us Christians, not heard of, I suppose, among the Barbarians, Selling of graves and the duty of buriall; wherein I desire a little libertie to expresse my selfe somewhat at large, as beeing one of the motives that led mee the rather to this discourse.

There seemeth if not a warrant, yet a president for it in the booke of Genesis, Chap. 23. where Ephron selleth a burying place to Abraham, but S ^t. Jerome censureth Ephron verie hardly touching that matter, even as though hee had committed some point of Symonle, or of great impietie; and saith, that for this taking of money for the bury­ing place, O, the letter of perfection was struck out of his name, and that in stead of Ephron, which signifieth perfect, hee was afterwards called Ephran, that is unperfect. The Scripture I confesse maketh no such mention, nor Josephus, nor any other ancient that I can finde: I blame not therefore Calvin that hee accepteth it not, but for that hee sleighteth that noble Father so lightly as to terme it a very toy. I hold Calvin much inferior to Meras nugas. Austen, yet Austen professed himselfe inferior to Jerome: what warrant Jerome had for it I know not, all men take him for no Imposter; I suppose (and so might Calvin) that hee had it from the Rabbins, because hee entitleth that booke of his Quaestiones et traditiones hebraica in Genesin: but all▪ [Page 3] are not of Calvin's minde, many of the Fathers and Councels do well accept it.

For my own part, I incline with Calvin to the excusing of Ephron; for both hee and the Hethites, as though it were against nature to take any thing for burying of the dead in their soile, gave Abra­ham free libertie, not onely to bury, but to do it where hee would, even in the chiefest of their Se­pulchres. This contented not Abraham, he would not onely have usufructum rei, the fruition of buri­all, but dominium loci, the inheritance of the soile itselfe. To sell this I should thinke it lawfull, though not the other in any case: lawfull to sell the Patronage of a Church, not the Presentation, In­stitution, or Induction. Pretium loci in quo human­d [...] F. de relig. & sumpt. funeral. funeris. est, a man may take by the civill law, but there was a necessitie that Abraham must have the very soile proper and solely to himselfe: for the cir­cumcised might neither dead nor alive mingle with the uncircumcised, as at this day the Chri­stians not with Infidels, the Faithfull not with He­retiques or Excommunicate persons. In this also Ephron was content to satisfie Abraham, and where­as hee requested no more then the cave of Mesche­pelah, Ephron not onely granted him the cave, but the whole field also wherin the cave was, and that as a free gift, if Abraham would so accept it; but Abraham refusing to have it by gift, bought the whole field and by right of appendencie had the cave with it. Nothing in all this do I see but noble­nesse and bounty in Ephron, nor any just impedi­ment [Page 4] why hee might not at first have demanded the price of the field▪ much lesse why hee might not take it, beeing pressed upon him, aswell as Araunah tooke more money of David for the threshing floore, where hee was to build an Altar and to sacrifice unto God. All this notwithstand­ing, because the scope of the money taken by Ephron was for buriall of the body that then wanted it, and not for the soile of the field, but for the Sepulchre, as Saint Stephen testifieth, Je­rome Act. 7. 16. utterly condemneth it, and the rather (per­haps) for that Adam and Eve were said to bee bu­ried there, for of such monuments hee was some­what curious.

Yet did hee not so much reprove this taking by Ephron, as the vice and sinne of our time in requir­ing and exacting money for buriall, which begin­ning then to creepe into the world, gave the Church a just occasion both to censure and con­demne it by many Constitutions, Canons and De­crees; whereof I will recite some, which I con­ceive are at this day in force (as touching the sub­stance of them) in our Church, though neglected and not observed by our Church-men.

Nereida a noble woman complaining to Gregory Canon I. Lib. 7. Epist. 53. et simile ibid. Epist. 4. ad Mes­salinum Episc. the Great, that Januarius the Bishop of Sardin [...] blushed not to require a hundred shillings for the buriall of her Daughter; Gregory by a decretall Epistle to him, saith, Wee have utterly forbidden this vice in our Church, and do not suffer so bad a custome should in any case bee usurped. If Ephron [Page 5] a Pagan were so considerate as to refuse it, how much more ought wee to doe it that are called Priests? We therefore admonish, that from hence­forth none attempt this vice of covetousnesse in any Churches. But if at any time you permit any to bee buryed in your Church, and that his next kinsman or heires will of their owne accord offer any thing for lights, wee forbid▪ not that to bee taken, but to exact or aske any thing, wee utterly forbid, lest that (which were most irreligious) the Church peradventure might bee said to bee sold (which God forbid,) and you also to seem glad of mens deathes, if you reape any commodity out of their carcases.

But a blow or two could not kill this serpent, Canon II. for iniquitie hath many heads. Some, as it seemeth, in the Councell of Tribury, Anno 899▪ made a question, utrum terra coemiteriata vendi posset pro Se­pultura? whether money might be taken for graves in the Church-yard? The Councell answer'd No. In Ecclesiastico namque &c▪ for it is written in Ec­clesiasticus, Deny not courtesie unto the dead, for wee all shall dye: And againe, All things that are of earth, doe returne to earth. Earth, why sellest thou earth? Remember that thou art earth, and shalt goe to earth, that thou must dye, and that death is com­ming towards thee and lingereth not. Remember that the earth is not mans; but, as the Psalmist saith, The earth is the Lords, and they that dwell therein. If thou sellest this earth, thou art guilty of invading the goods of another. Thou hast received it freely [Page 6] from God, give it freely for his sake. Wee there­fore absolutely forbid all Christian people to sell earth for the dead, and to deny buriall due unto them, unlesse the kindred or friends of the dead person, in the name of the Lord, and for redemp­tion of his soule, will of their owne accord give any thing.

The Councell of Nans recited by Burchard, and Canon III. the Councell of Varens al Vasens delivered by Gra­tian, do both in the selfe same words thus con­demne it: Praecipiendum &c. It is to bee com­manded (say they) according to the authoritie of the Canons, that for graves and the buriall of men no reward be exacted, unlesse hee that is dead did whilest hee lived appoint somewhat of his goods to be given to the Church, in the yard whereof he is buried: or that those to whom the bestowing of his Almes, after his death, is committed, will out of their own accord give somewhat of his goods; but nothing may in any case bee exacted by the Priests there, or by them that have the govern­ment of the place. It is also to bee commanded according to the Constitutions of our Elders, that none upon any case bee buried in the Church, but in the yard, porch, or vaults of the Church, &c.

The Councell of Toures under Alexander III. cap. Canon IV. Non satis, saith, For Sepulture and for receiving Uncture and Oyle, let no man attempt to exact any kinde of reward, nor to defend his offence therein by colour of any manner of custome; for the length of time doth not diminish sins but en­creaseth them.

[Page 7]It is true that all these were no more then▪ Pro­vinciall Synods and Constitutions, yet their judg­ments did determine this point to bee a grievous sin, and seemed to bee so orthodoxall, that they since are taken into the body of the common Law, and now as powerfull, generall, and obligatory, as the other parts thereof. But wee will rise higher and see what generall Councels have conceived and decreed herein.

The twelfth generall Councell, wherein both Canon V. the Churches, Greeke and Latin, were assembled by the same Alexander at Lateran in the year 1180. cap. Cum in Ecclesiae corpore, saith, The buying and selling that is reported to bee in some Churches is too horrible; as that somewhat is required for in­stalling Bishops, Abbots, and all kinde of Eccle­siasticall persons in their seates; for inducting Priests into their Churches, and for sepulture and funerall rites, for benediction of the married couple, and for other sacraments▪ verily many think it lawfull, because they suppose the law of custome hath got authority by long continuance; not considering that offences are so much the more grievous, by how much the longer they have en­snared the wicked soule of man. Therefore, lest these things should be done hereafter, Wee straight­ly forbid any thing to bee exacted either for con­ducting of Ecclesiasticall persons to their seats, or for Institutions of Priests, or buryall of the dead, or benediction of them that marry, or for other Sacraments, either conferring, or collated. But if [Page 8] any man shall presume to doe the contrary, let him know that hee hath his portion with Gehezi; that is, that he standeth accursed, and, as the glosse inter­preteth it, that hee is a Symonist.

The next generall Councell, a very great one in Canon. VI. Circa an. 1198. the same place, under Innocens the third, con­tinueth the same prohibition touching buriall­fees: but because the former bridled the Clergy in taking that was not their due, this curbeth also the perversenesse of the Laity, in with-holding their just duties: the words be these, Ad Apostolicam, &c. It is common to the Apostolick eare by fre­quent relation, that some Clerks, for the buriall of the dead, and blessing the married couple, doe exact and extort money: and if it chance that their co­vetous desire bee not satisfied, they fraudulently alledge some feigned impediment. On the other side, some lay-men, levened with hereticall pravity, under the pretence of canonicall piety, doe ende­vour to break a laudable custome brought into the Church by the godly devotion of the faithfull. Hereupon wee forbid all exactions to be made, and command all godly customes to bee observed; that Ecclesiasticall Sacraments be freely conferred: but that they which maliciously endevour to change a laudable custome, may upon knowledge of the mat­ter be suppressed by the Bishop of the place. Note, that the customes protected by this Canon must be godly and laudable.

As for the Canon Abolendae, which aimeth Can. VII. chiefely at those, who, like the Monks of Mount [Page 9] Pessulan, will not suffer the ground to be broken be­fore they be paid for the grave, I purposed to passe it over, supposing none that serveth in the house of God to bee so covetous or cautelous, as not to stay for his money till hee had delivered his ware: But in the meane time, a complaint was brought unto us of a Church-man (since deceased) and his Clerke, that came together to the house of one of their Pa­rish, who was then newly dead, and speaking with the Executors, would not suffer the body to bee brought out of the house, till hee had 14. l. paid to him and the Parish Officers, according to a bill of particulars then shewed unto them: nor could the Executors compound with them for any abatement more then ten shillings in the Clerkes share, and paid them thereupon 13. l. 10. [...].

Against such, amongst other, is this Canon under the Rubrick, Terra caemiteriata pro sepultura vendi non debet, in these words, Abolendae consuetudinis per­versitas, &c. There is growne up (as is reported) a perverse custome that must be abolished at Mount Pessulan, where they will not suffer the grave to bee digged open for them that die, till there bee a certaine price for the ground, wherein they are to be buried, paid unto the Church. Wee command, that you, being Bishop of the place, doe prohibit the Clerkes from exacting any thing at all in this case. The complaint was for exacting of money before the grave was opened, but the Canon forbiddeth it both before and after. Nota (saith the Glosse) quòd pro terra in qua sepeliendi sunt defuncti, nihil est exi­gendum. [Page 10] Decretal. Gr. l. 3. Td. 39. de parochiis c. 13.

I might, as the phrase is, girando Canonum volu­mina, produce many other Authorities whereby this sin is vehemently impugned and cryed downe: but I will not plough with an Oxe and an Asse to­gether; I will not joyne those Constitutions, which for the most part are Nationall and Provinciall, with these I have recited, being generall, either by their birth, as springing from generall Councels, or by adoption, as taken out of provinciall Councels and Decrees into the body of the Canon Law, and made thereby as generall and obligatory as the rest: for all these together, with all other parts of the Canon Law, as they have beene heretofore in use, and that are not repugnant to the Lawes and Reli­gion of the Kingdome, or repealed by the Statutes 25. H. c. 8. 19. 27. H. 8. c. 15. 35. H. 8. c. 16. 3. Ed. 6. ca. 11. of Hen. 8. or of later time against Papall usurpation, are still in force, as I conceive, and as was lately seen in two great cases, wherein every corner of the Ca­non Law, as well remote as obvious, ancient as the later, were searched out either pro or contra. As for the 32. Commissioners that by the Sat. of 25. H. 8. cap. 19. & 3. E. 6. c. 11. should have pruned the Ca­non Law, and cut off the unnecessary branches, no­thing A booke was prepared, not finished or e­stablished. was done thereupon, so that it still remaineth as it was before. But admit that neither these, nor o­ther positive Constitutions extended to our Mini­sters, will they not bee a law unto themselves, and abstaine from that which is declared to bee wicked and unjust by so many godly men, so many Fathers, Councels, and Decrees of the Church?

Let us then consider the Councels and Canons [Page 11] that wee have recited; and see first, what opinion they have of money taken for burialls: and second­ly, how they censure and decree touching it.

• First, for their opinion, they declare it to bee a
  Can. I. Greg. ad Januar. Regist. lib. 7. Epist. 55.
  vice, a vice of covetousnesse, a bad custome, that may bee said most irreligious, as a selling of the Church, a cause of joy to the Parson when men dye, and a reaping of commodity out of carcasses of the dead, and sorrow of the living.
• 2. A discourtesie to the dead by him that must
  Can. II. Concil. Tribur.
  dye, a selling of earth by him that is earth, a selling of that is none of his owne, a selling of what was given freely to give freely, a denying of buriall.
• 3. A thing too horrible, that bringeth the portion of
  Can. V. Concil. general. Literan.
  Gehezi upon the offender, that is the brand of Simo­ny, as the glosse expoundeth it, a curse, an unclean­nesse, and cause of separation from common society.

Lastly, as maladies are the most grievous and Can. VII. Concil. Turon. Can. V. Concil. gener. Lateran. Can. VII. Decr. l. 3. & 28. c. 13. contagious that continue longest: so they conclude this to bee so much the more grievous, by how much the longer it hath continued; and declare it to bee abolendae consuetudinis perversitas, the per­versity of a custome is to bee abolished.

I am loth to use these heavie termes of aggrava­tion; yet they proceed not from mee, but from the Clergie themselves against the Clergy them­selves, from the body against a member, from the Fathers, the Doctors, the Decrees of the Church, and great generall Councels, against some private, particular and incorrigible offenders.

The summe of their censure and decrees is this,

• 1. That nothing bee exacted or required for any [Page 12] sepulture; which word the glosse declareth to
  Cap. Abolendae ver. Sepultura, col. 1207.
  comprehend the ground or place of buriall, and the ministery of the Priest or Parson about the same. And in some of the Canons it is particularly so expressed.
• 2. That all customes for such taking, are evill, impious, and voyd.
• 3. That the offence in taking is Simony.
• 4. That the cognisance thereof belongeth to the Bishop of the place.
• 5. That gifts of pietie for use of the Church, may notwithstanding be taken.
• 6. That none should bee buried in the body of the Church.

There is a fiction that Achelous fighting with Hercules, and not able to resist his force, shifted himselfe into divers formes, thereby to illude it. So the Canonists try many evasions to help their Masters of the Clergy in this point of taking, by distinguishing the places of buriall, the persons that take, the time of taking, and the manner of de­manding.

For the place, they say there bee three sorts, Lo­purus, Of the place. Locus religiosus, and Locus sacer: according to the civill Law, locus purus is that which is more Locus purus. secular ground, never used for buriall, nor having any kinde of consecration. To this they say the Canons doe not extend, for that it is some private Decr. Greg. cap. Abolend. ver. Sepultur. And Grat. Can. 12. q. 2. mans; and the owner, if hee will, may take money for a grave there; for, Nemo tenetur de suo benefi­cium facere, No man is tyed to give his ground to a [Page 13] charitable use. Locus religiosus is that which is Locus religiosus. assigned to some office of Religion, and nominately where the body of a dead person hath been buried. For by the very buriall of that body, the nature of the soyle is changed from secular, and, in reverence of this new function, counted to bee religious; and now therefore by the Canons nothing may bee ta­ken for any more graves there. Some such places (I suppose) are about this City adjoyning to Church-yards, for enlarging thereof, and some of them for which the owners doe take a yeerely rent of the Parish that useth it, letting it unto them to sow dead mens carcasses in, as it were to sow corne, and as though the carcasses should grow up (like the fable of Cadmus) and bring them a crop to pay the rent with. This the Canons doe meerely forbid, as doth also the civill Law, and Law of humanity, the Fathers, the Councels, and the opinion of S. Je­rome in the case of Ephron.

For mine owne part, I take it to bee a kinde of usury to let that for money, whereof the hirer can make no kinde of profit. It may be said, that they might have chosen, when they first hired it, whether they would use it so or no; and it is true: but after the thing is done, and the place thereby become religious ground by being made a burying place; now to let it in that kinde, is (I say) against the Ca­nons. Locus sacratus is that which by the donati­on Locus sacratus. of the owner is setled upon God and the Church for some divine and Ecclesiasticall service, and then consecrated thereto by the Bishop, is thereby [Page 14] severed from humane property, as be our Churches and Church-yards; the meere property whereof, which wee call Fee-simple, is said to bee in nubibus, and abaiance, though the Parson, Patron, and Or­dinary, for necessities sake, might make a convey­ance of them. But to dispose them, or any part of them contrary to the will of the Donor, the nature of the gift, and the glory of him that is the Supreme owner, (God Almighty) is by these Canons Simo­ny, Sacriledge, and extreme impiety. Hereof there must therefore bee no buying or selling; and in this, no doubt, the Canonists are right. Thus much for the place of Sepulture.

Touching the parties that take money for the of­fice Of the parties. or ministery of buriall, they say that the Canons extend not universally to all Clergy men, but to such onely as are beneficed, or have pensions for doing the Church duties, or serving the cure; not to those which are sine titulo, sine salario, without benefice or stipend, and that they may therefore take what they can get; for, It is not inconvenient Nec est incon­veniens quod Clericus locet o­peras suas, cùm non habeat undè vivat. Decr. Gr. l. 5. 29. ver. pro exequiis. (saith the Glosse) that a Clerke should sell his paines, if hee have not whereon else to live. The rest of the Clergie they leave under the Canons, yet with such shelter, and so many starting holes, as the Canons may play upon them, but not hurt them: For as time changeth, so they change the case, observing a difference in taking money before buriall, and in taking after; to take aforehand, they say, is utterly unlawfull, for that it implyeth a buying and selling by example of Tradesmen, who first take their [Page 15] money, and then deliver their ware: but, expleto Non ergò prohi­betur quam li­beraliter oblat. satis benè possit recipi sine pec­cato, exclusa cupiditatis labe. Jo. de Athon, tit. de Sacram. §. 1. v. labe. officio, when the duty is once performed, they may take what is voluntarily given them, without danger of the Canons, which wee shall further examine in the next Paragraph. Yet marke in the meane time the tenor of the first Canon, Quaesta est: Nereida complained that the Bishop velit exigere, would exact 100. s. of her for the buriall of her daughter; which complaint must needs bee after the buriall, it being in Sardinia, and Saint Gregory writing from Rome, or those parts; yet expleto officio, the buriall being past, Gregory would suffer nothing to bee ta­ken, no not upon voluntary gift to the use of the Bi­shop; but for the publick use of the Church, as for ligh [...], &c. hee allowed that to be taken that was voluntarily offered, and no otherwise. So like­wise doth the Canon, praecipiendum, or third Ca­non. The second Canon also giveth liberty to offer somewhat for the soule of him that is dead, but no­thing to be given for the grave, or buriall service.

The manner of taking is of three sorts, by exacti­on, Of the man­ner. demanding, and voluntary gift. Exaction is ordi­narily conceived to be a wringing of that is not due from the party, or of more then is due, like the Monks of Mount Pessulan, to refuse burying of the body till they had their pretended duty: or like them in the Canon ad Apostolicam, that alledge fai­ned impediments and excuses to raise the market by delaying the buriall: or when the buriall is past, like Januarius the Bishop of Sardinia, to urge and insist upon the demand. These no doubt are sharpe [Page 16] exactions; but the word includeth smoother cour­ses: Tit. Symonia ca. firmit. verb. exigatur. lib. 4. Etymolog. & division, juris u­niversi exposit. John Calvin ab Cuble Lexic. Lindewode expoundeth it to require or take à nolente, of him that would not part with it. Calepine saith, that Lactantius useth it for convenienter po­stulare: John Bellonus, that exigere est petere, exactio est petitio, and that the exactores tributorum were so called à petendis tributis, which the Lexicon of the Civill and Canon Law doth also deliver: So that to exact is not onely to wring it from the party, but to demand or require; and to demand or require, is to exact. In this manner the fifth Canon either useth them Synonimally, or complaineth of one abuse in the preamble, or provideth against another in the decree. To put it out of doubt, the first Ca­non useth both the words, Peti verò aliquid, aut exigi omnino prohibemus: We utterly forbid any thing to be either asked or exacted: and it setteth exigi in the later place, as though exigere were lesse then petere; or, as Lactant. taketh it, convenienter postulare. Note also, that this Canon was made against asking or ex­acting after the buriall, as before we have touched.

All this notwithstanding, I must truely confesse (for I deale with Argus and Briarius, them that have all perspicuity and assistance) that there is no expresse word in any of these Canons, against gi­ving or taking simply, though I thinke there bee e­nough to satisfie indifferent judgements. Yet if it bee a defect in them, I have a helpe for it here at home in our own Provinciall Constitutions, where, in a Synod at Westminster, assembled by Richard Archbishop of Canterbury, I finde it thus decreed [Page 17] under the Rubrick, Ne quid exigatur pro Sacramen­tis Statuimus ergo ut de caetero. conferendis Ca. Dictum est, &c. Wee therefore ordaine, that from henceforth neither for Ordination, nor for Chrisme, nor for Baptisme, nor for extreme un­ction, nor for Sepulture, nor for the Communion, nor for Dedication, any thing bee exacted, but that the gifts of Christ bee given with free dispensation, and let him that doth the contrary bee accursed. So that if they must be given freely, nothing surely must bee taken for them, either ex obliquo, or by evasion.

It may bee said, they require nothing by way of price for the ground or Sepulture: for the fourth Canon is, ut nulla cujusquam pretii exactio attente­tur, but as a reward from the party by way of gra­tuity. Who knoweth not that pretium signifieth a reward, aswell as a price? and for mine owne part, I doubt not but that the Canon doth so intend it: yet, to cleare the point, the words of the third Ca­non are expressely, ut nihil muneris exigatur, that no reward be required.

I suppose by this time the offenders in this kinde have left the plaine field of the Canons, and taken themselves to their last hope and Castle of refuge, Custome and prescription, where it now resteth to beat them out. Every man knoweth that evill cu­stomes are in their owne nature to bee abolished; and those that be good, yet if there bee a positive law against them, they are also voyd. The nature of this custome by the collection wee have made out of the Canons, is not onely declared to bee ex­cessively bad, but, by the great generall Councell of [Page 18] Dateran, to bee very horrible, and consequently to be abolished; but being positively against the Ca­non, it is in ipso hoc directly void; though there were no clause or provision in them so to denounce them, yet ad majorem cautelam, the fourth and fifth Ca­nons doe expressely overthrow that custome, and besides doe brand it with this note of infamy, the elder the worse, and the longer it hath continued, the more grievous.

The Parsons have now a shrewd Crow to pull, for the Canonists themselves will confesse all this to be true. What then remaineth with Achelous, seu versare dolis, seu certo occumbere? Corax must now help them with a quirke to cosen the Canons, and to slide from them, or they are undone. Well, heare Jo. de Athon, one of the pole-starres of our English Canonists; Let him (saith hee) that asketh any thing in this case, take heed to himselfe; for if hee aske and take it for his duty, or for the ground, or for sepulture, he is gone, for it is Simony: And for proof thereof, all alledge some of the Canons wee have recited, with divers other, and the opinion of Hosti­ensis; and saith further, that a custome will then doe him no good, as appeareth by the Canon of Otho, which hee is there in hand with, and that of non sa­tis in the Extravagant, by us also expressed &c. But (saith hee) if hee demand it when his duty is done, in this manner, for that every one that dieth, or is in­stalled, hath used to give so much to the Priest or Church, then he shall prevaile, and doth justly require it. For confirmation hereof, hee produceth the re­solution [Page 19] of Innocent▪ and other Authorities: And that Hostiensis saith infallibly, that this is true, touching the duty of the Laity towards the Church; in so much, as though this exhibition of the Lay men tends to the o­ver-filling of the belly of the Clerks; yet it may bee de­manded, as hee noteth in the Extravagants, Tit. Si­mony, ca. Jacobus: And Athon saith, That hee be­leeveth it to bee true, not respecting the inordinate gluttony, but the right of the Church, alledging other Authorities to confirme it. F. 1.

To the same purpose is the opinion of Lindewode, the other pole-starre of our English Canonists, and with the same words in part. tit. Simonia, ca. 1. Se­pulture (saith hee) must not be sold, and ( citing 8. q. 2. §. Item queritur per Jo. & Co. ibi sequentibus, de sepult. ca. abolendae) saith, that it appeareth there in the text and glosse, that in a sacred place, as in a Church or Church-yard, nothing must be required for sepulture, no nor yet for the office of buriall, as Bernard there noteth. And this is true as touching his office, because a Clerk by reason of his benefice is tyed unto it. But it is otherwise, if hee bee not tyed thereto by reason of his Benefice, and so that hee doth not contract to have it, for then it is Simony; (Extrav. eod. tit. ca. in tan­tum, secundum Hostiens. & ca. non satis) yet the Glosse saith, in the end of the said chapter, abolendae, that though Clerks may not require any thing for such sepulture, yet the Laity may bee compelled to observe godly and laudable customes. And marke, according to the note of Hostiensis, in the same Chapter, That hee that requireth to have the custome performed to him, [Page 20] must take heed to himselfe; for if hee demand it for the ground, or for his duty, hee is downe, and it profi­teth him nothing to alledge a custome (ut dicto capite abolendae:) But if hee saith that for every dead body so much hath been usually given to the Priest, or to the Church, then he shall obtaine it: as in ca. ad Aposto­licam Extrav. eod. & vide gloss. hic similem 13. q. 2. §. Item quaeritur. Linw. fo. 201.

Here is a left-hand way to slip by all the Canons, let us consider it. May the Parsons frame their cu­stome as they list? Is it like a Proteus, or Lesbian Ruler? Are they not tyed to the matter of fact, to the manner and forme of payment? Are Mood and Figure onely University observations? Let them bee well advised in laying their customes so, lest the Jury finde an Ignoramus. It hath fallen up­on mee to bee an unworthy member of that most noble and most gratious Commission of exacted fees and innovated offices, and thereby to have notice by certificate of divers Parsons, Vicars, and chiefe Parishioners of most of the greatest Parishes of London, yet none of them hitherto (to my remem­brance) have made any such claime, nor know I how they should prove it if they did.

I will stirre no coales, nor prosecute this point any further, for the duty, love, honour, and great obser­vation I beare unto them; but I intreat, with vehe­mency, that both they and the rest of their coat will thinke seriously of it, and if not alwayes, yet when in their Sermons they justly fall upon the op­pressions, extortions, raising of rents, &c. by Land­lords [Page 21] and lay-men. For this bird of theirs is a wing­ed sinne, hatcht of late within this Citie, but crept already into the neighbour Towns, and will short­ly flye (if the wings be not clipt in time) over all the Kingdome. Oh, let not that of Jeromy bee once spoken of this noble Citie, From the Prophets Cap. 23. 15. of Jerusalem is wickednesse gone forth into all the Land.

As this sinne, and the Canons lie sore upon the Ministers, for taking money for graves in the Chancell, and for their paines in burying the corps wheresoever: so doe they upon some other, who little dreame of it, the Church-wardens of Pari­shes that sell graves in the Church and Church­yard like ware in their shop, and when they thinke fit, make lawes in their Vestry for raising the price, as they doe in their Halls for the price of their ware. If they looke the third Canon, they shall finde themselves contained there under a faire stile, Them that have the government of the place, (meaning, of the Church, and Church yard, and Parish) so that though they bee lay-men, yet by misusing the things of the Church, they fall into the same of­fence and penalty respectively that Church men doe▪ and have their portion assigned them with G [...]zi, as in the fifth Canon. I have heard what some of them answer; That it is no benefit to our selves, it is for the good of the Parish, for re­pairing the Church, the Bells, the Steeple, to help out some extraordinary charge that falls upon the Parish; and if some small matter bee spent upon [Page 22] a Parish Audit, or a Quest-house dinner, it is an Agape, or Feast of love, and no man will grudge or repine at that, our Predecessors did it before our time, and our Successors will doe it when wee are dead and gone. All is done by an assembly of the Vestrie, by consent of the Masters and chiefe of the Parish subscribed, and testified under their hands. Well, let their Vestrie on Gods name bee a Consistory for well ordering of the things of the Church, it is fit it should bee so; but let it not bee a Parliament, that a dozen or sixteene private per­sons (I will not meddle with their trade or quali­ty) should change or abrogate any superiour Con­stitutions, much lesse those of Synods and generall Councels, nor to make orders to bind, like a law, the rest of the Parish that consented not.

What they have used to doe time out of minde, I call not into question; but those Vestries that within these thirty yeeres or thereabout, have left their ancient forme, supported by a lawfull pre­scription, and contrived to themselves a now so­ciety, power, and jurisdiction over the rest of the Parish, countenanced by an instrument from the Ordinary, under the Seale of his Chancellor; and (as new things must have new names) are commonly stiled Selected [...]. I [...]e the Bi­shops names are used in them, whether their as­sents and knowledge, I am doubtfull. I assure my selfe their Lordships would doe nothing against the Law, and I understand not by what Law they may at this day erect such Societies, or endow [Page 23] them with such Authority as is pretended. But to deale plainely, I thinke those Instruments conferre more money upon the Chancellors, then authori­ty upon the Vestries; for (by those that I have seene) the Bishop or Chancellor granteth nothing to them, but relating that they have considered the forme of a Vestrie desired by some of the Parish, they allow, approve, or confirme it, and yet no other­wise then (with a Quantum in nobis est) as farre forth as lawfully they may, and no otherwise. Nor have they this shadow of authority otherwise then upon condition, that they shall doe nothing that may trench upon the jurisdiction or profit of the Ecclesiasticall Court. What have they now for their money? Or more (in effect) then if a pri­vate man had granted them as much? No doubt, many of the wise Parishioners doe perceive it, and some Parishes have renounced it, and are turned back to their ancient Vestrie: yet neither of them keep their bounds; for the one and the other take upon them not onely to make orders in the nature of by. Lawes to binde their Parishioners, but to set and raise fees and duties of the Church, and Church-Officers at their pleasure, as appeareth by many Tables produced before us. But see what they have gotten that claime their fees or duties by such Vestry Orders, or unlawfull Authority: for prescription will not now help them, in so much as the originall of their fees appeareth to be by the Table, and the Table cannot defend them, for that the Authors of it had no authority to make [Page 24] such assessements, and so consequently they can neither justifie the clayming of their fees or du­ties, either by the one or other; and the Vestry­men perhaps may bee in danger of an unlawfull Assemblie to change Lawes, or to have their offence strained very high, if severity should ex­amine it.

Give mee leave to present to you what I finde in a Vestrie-Constitution lately made, and sub­scribed by the Parson and Church-wardens, 24. Nov. 1627. with twenty three more of that Assembly, con­firmed by the Bishop, approved by his Chancel­lour, declared to bee a laudable custome of that Parish, and in testimony thereof entred (as a so­lemne Act) in the principall Registry of the Lord Bishop of the Diocesse; and finally, ratified with Dat. 25. April. 1628. the Chancellours hand and Seal of Office: I may say, vidi, puduitque videre. But heare the paroels onely touching the Parson and Church-wardens for the point in hand.

All these double of every Stranger.

I meddle not with the Constitutions of 4. L. to the Parson for a Pew in the Chancell, nor of 15. ss. 20. ss. 3. L. 3. L. 10. ss. for places and Pewes in other parts. But these and many other of the like sort fall in one Certificate. In another Parish I finde six shillings eight pence to the Par­son for the duty of buriall in the Church, when himselfe doth it not, but his Curate, who for his paines hath by the same Certificate ten shillings more, besides other ten shillings for a Sermon (though there be none.)

But to goe a little backe to the first demand, touching burying in the Chancell, which is not definite in quoto, but positive ex imperio, that who­soever will be buried there, shall pay to the Parson as shall be agreed.

It is to bee noted, that here is no custome, [Page 26] and consequently then, whereas the Parson thin­keth the advantage lyeth on his side, to take what hee list, hee is now excluded by all the Canons from taking any thing at all: For the buckler that should defend them is the Canon Ad Apostoli­cam, and the breadth of that extendeth no further then to protect them that fight under a Custome, which also must bee pious and laudable, otherwise it covereth not any. And consequently, whilest they stand upon termes, and alledge the Chancell to bee their free hold, and that they may as freely dis­pose it at their pleasure, as Lay-men may of their lands, they fall into the foule pit of Simony, if they were looked after.

The grave is the onely inheritance that wee are certainly born to, the inheritance which our Grand­mother the earth hath left to descend in Gavelkinde among all her children: Shall one enter, and hold another out, or drive him to pay a fine pro adeunda haereditate, as they say in the feodall Law, or pro ingressu habendo, as wee in the common Law? Is our tenure base like a copy-hold ad voluntatem Do­mini, and not rather noble by francke Almoigne, free from all payments and services? How doe Apoc. 14. 13. the dead rest from their labour, if they bee vexed with payments? How goe they to their grave in peace, if they pay for their peace? Laborat aere alieno qui debito tenetur, and his peace is not worth thanks, if hee must pay for it: Hee payeth for his peace, if hee payeth for the place where his peace cannot otherwise bee had: Hee payeth for [Page 27] his rest, if hee cannot enjoy it without payment: Hee payeth for his Inheritance if hee cannot enter into it without a fine pro ingressu; his inheritance settled upon him by the great Charter, Terram dedit filiis hominum: A royall gift, but as it is used, malè collocatum, ill distributed. The poore man (alas) hath nothing of all this for his portion but the grave, and may not now have that, unlesse hee pay for it. Well, To whom should he pay? Reason answereth, If to any, to the owner of the soyle. True, But the owner of the soyle was the Founder of the Church, and hee, out of piety, zeale, and charity, gave the Church freely for Prayer, the Church-yard freely for Buriall, absque ullo retene­mento, without any rent, any service, any reserva­tion. Nor could hee (if hee would) have done otherwise, for the Canons would not suffer him: Nor though hee were the absolute owner, yet if hee had reserved but a pepper corne out of a grave, it had beene not onely voyd, but execrable. A pepper corne? what talke wee of a pepper corne? no ground in the Kingdome is now sold so deare as a grave. That poore little Cabinet, that is not commonly above five foote long, and a foote and halfe in breadth, where there is no roome to stirre either hand or foote, and the roofe, as Saint Ber­nard saith, lyeth so low, as it toucheth the nose, this silly Cabinet is sometimes in the Church-yard sold to the poorest man for sixteen pence, sometimes for two shillings eight pence, sometimes three shil­lings, sometimes sixe shillings; in the Church it [Page 28] selfe at ten shillings, twenty shillings, forty shillings, three pound, foure pound, &c. in the Chancell; at twenty shillings, forty shillings, three pound, foure pound, five pound, yea, ten pound: and yet the purchaser hath no assurance of it, but is constrained to hold ad voluntatem Domini, or as a Tenant for seven or ten yeeres, within which terme hee is of­tentimes cast out, and another put into his roome, and no Writ of Quare ejecit infra terminum lyeth for him. Shall I tell what I was ashamed to heare? A grave or burying place let to farme at twenty shillings a yeere, the rent duely paid for di­vers yeeres, and being then behinde, the Parson threatned to uncase the corps by pulling downe the Monument if it were not satisfied; and shame was so farre from him, as hee spared not to de­fend it even before the Commissioners: To whom it was likewise testified, that another had made forty pound of one grave in ten yeeres, by ten pound at a time; Strange things to mee, what to others I know not, but I suppose, cinctutis non exaudita Cethegis; the oldest man living hath not heard the like. Is it not time that his Majestie should doe as hee doth, that like Josias hee should reforme the Temple, the House of God? God bee bles­sed that put it in his heart, and grant him well to finish the work in hand, being so noble, so pious, and so full of necessity.

I said the Church was given freely by the Foun­der for Prayer, and the Church-yard freely for Buriall; what reason can then bee alledged, why [Page 29] the dead should rather pay for going into the grave, then the living doe for going into the Church? Or why doe not the living pay as well for the one, as the dead for the other. Alas, mor­tuo leoni & lepores insultant, a little childe may pull a dead lyon by the beard, but the least dogge alive will turne againe upon the tallest man. I have here a faire occasion to speak of another great abuse, the extreame exacting money for pewes; but I will hold me to the matter in hand, and for a conclusion, give mee leave to upbraid our Ministers with that Iliad. 7. pag. 128. golden Edict of Agamemnon in Homer touching the slaughtered Trojans, his enemies.

O shame to our religion that heathens and sol­diers should be more gracious to their enemies, then a Christian Minister to his friends and brethren. But, ferrea nunc aetas, &c.

I am now led, where I was loath to come, to shew the nature and penaltie of this sin. But that nicenesse is too late, since Jo. de Athon, Hostiensis, divers Canons, and some other former passages have alreadie so manifestly discovered it to be Si­mony, Decr. Greg. lib. 3. cap. 6. under which title it therefore standeth ran­ked in the books of Canon-Law with this censure and penaltie, sicut simoniaca pestis, &c. as that pesti­lent [Page 30] disease of Simony doth exceed in greatnesse all other diseases, so immediately assoone as the signes thereof shall appeare by the relation of any person, it ought to be cast out, and banished from the house of God; So odious is the contagion thereof in the Canon Law, as it receiveth all criminous and infamous persons to become accusers, even the bondman against his Lord. It induceth suspension, Ibid. c. seq. irregularitie, excommunication, curses, depriva­tion, &c. many penalties not put in execution.

The cognizance and reformation thereof, as of all other enormities in Church and Church-men, were anciently in the Clergie themselves; till King Henry the second perceiving that many horrible crimes committed by Clerkes were either smoo­thered up in secret, or smoothed over upon exami­nation with some slight punishment; (for nothing in the Canon Law is mortall) he therefore obtai­ned in the great Councell of Clarendon, to have them tried for Capitall matters before his secular Judges, which first cut the ham-strings of Eccle­siasticall Jurisdiction, and became a perpetuall pre­sident for the laiming of it afterward in other members: for hereupon the succeeding Parliaments from time to time, as they found the Clergie either sleeping or exorbitant in using their Jurisdiction, pulled somewhat à Consistorio Cleri ad Praetorium Regis, from the Canon-Law to the Common-Law; and by little and little have brought the great sea of their old authority to a narrower compasse; which, if my Lords the Bishops look not the better [Page 31] to, will (I feare) be yet contracted and diminished. They are not ignorant what hath been attempted against them in this kinde in Queene Elizabeths time and since, and that there be about foure hun­dred persons which observe their courses very strictly. Their Lordships trust their Chancellour, Commissaries, Arch-Deacons, and Officialls with the Canonicall government of their flocks, and these, in many places, desiring money rather then amendment, doe so shave and pelt the people, that the cry thereof is very grievous, and will (no doubt) produce some other reformation, if it bee not (as I said) helped by themselves in time.

They were wont to limit their owne fees and the fees of their officers in the Provinciall Synods, as appeareth by diverse of them. But their Suc­cessours kept them so badly, that although the Sy­nod Steph. Mepham. Archiep. Cancer. Jo. Stratford in Synod. London. of London in the yeare 1342. had given a good smart allowance for the probate and busi­nesse of a testament, as twenty shillings at least, of the money of that time for every hundred pound of the Inventory: yet the market by Henry the eighth his time was growne to that height, that a thousand markes were said to be exacted for the probate businesse of one mans testament (Sir Willi­am Comptons by name;) which gave the Parliament in the twentie second of the same King such dis­content, as they would trust the Clergy no longer to be their owne Carvers, but made a speciall Sta­tute See Hollinsh p. 911. in that point to bridle their exactions: And so likewise about Mortuaries and Corps▪ present.

[Page 32]Now the authority they had is gone by their submission, Anno 25. Hen. 8. and the Statute there­upon then made: So as at this day they have no au­thority, either by Diocesan or Provinciall Synods, to set any fees but in their Convocation by assent and confirmation of his Majestie under the great Seale. In which course none have been taxed since the said Statute, till 27. Eliz. and then none tou­ching An. 1584. any other then officers of Ecclesiasticall Ju­risdiction, and Courts, not Parsons, Vicars, Mini­sters, Church-wardens &c. And not otherwise al­so in the Constitutions of the Synod of London, 25. Octobr. 39. Eliz. & Jac. 1. where the Lord An. 1597. cap. 135 Archbishop of Canterbury hath power given him to determine of some questionable fees touching the said officers, but noe farther; so that the rates and taxes of fees of Parsons, Vicars, Ministers, Church-wardens, and the like, which I have often seen to be countenanced and authorized by the Or­dinary of the Diocesse, his Chancellour, or other officers under their hand and Seale (as farre as my understanding can discover) are without sufficient warrant, and against the Law.