The Civil Right of Tithes, Ecclesiastical tract · Chapter 18
CHAP. XX.
HAve we yet done? no; we are now but to begin another tedious wrangling controverſie about Tythe-wood, and this indeed laſted long with much violence between the parties contending, till at laſt it ſettled (wel near) in the binding ſtatute of Sylva caedua. The grievance on the Churches part was1Tit. eod. cap. Quanquam ex ſolventibus. this; That whereas leſs charge was in manuring for Woods, and longer expectation for one Harveſt in many years, yet diſburſements for the felling, &c. were claimed to be allowed when it came, before the Tythe ſet out, and the Countrey, which was worſt, had a cuſtome for this unreaſonableneſs. No ſuch matter: The continuance of the diſeaſe did rather call for a more ſpeedy remedy, which it had, and therefore is firſt determined what Sylva caedua was; Quae cujuſcunque exiſtens generis arborum in hoc habetur ut caedatur, ('twas let grow to be cut,) & quae etiam ſucciſa rurſus ex ſtirpibus aut radicibus ren…ſcitur, (being cut, it grew again afreſh:) and then that All ſhould be tythed as it was felled; or if not, proceed to cenſure as before. But this it ſeems the State would not allow; for the inconveniences emergent occaſioned that complaint put up by the 2Selden Hiſt. cap. 8. ſect. 28. & ſequ.Commons then ſitting in Parliament for remedy: And ſo the year following, ſc. 18 Edw. 3. and three years after again, ſc. 21 Edw. 3. and four years after that, 25 Edw. 3. and yet not full remedy till about twenty years after, ſcil. 45 Edw. 3. where ordered in Parliament, and345 Edw. 3. ca. 3. Pulton. pa. 196. ordained: Item, at the complaint of the great men and Commons, ſhewing by their Petition, that wheras they ſell their great Wood at the age of twenty yeares, or of greater age to Merchants to their own profit, or in aid of the King in his wars, Parſons and Vicars of holy Church do implead and draw the ſaid Merchants into the Spiritual Court for the Tythes of the ſaid Wood in the name of this word called Sylva caedua, whereby they cannot ſell their Woods to the very value, to the great dammage of them and of the Realm, It is ordained and eſtabliſhed, that a Prohibition in this caſe ſhall be granted, and upon the ſame an attachment as it hath been uſed before this time. This was intended a finall end, but it ſeems was not: ſome doubt ſprung out afterward upon pretence this1Selden ubi ſup. ſect. 33. was not an Act, but an Ordinance, whence a return of the former circulation of things; occaſion given, diſcontent ariſing, diſlike, trouble, and complaint for remedy. How it was pacified I find not, but have heard that the Statute (or but Ordinance) prevailed: A ſigne that it was ſtrengthened with ſome2Yes: there was a Petition put up in the next Parliament, 47 Edw 3 and by order thereupon a Prohibition to be formed in Chancery, which was formed, and that has quieted all to this day. Co. Inſt. 2. pag. 643. additionall ſinew of new and freſh authority, foraſmuch as what we ſee prevailing in Law, we may well ſuppoſe ſome Decree to have uſhered the lawfulneſs thereof; and if upon altercation, the ſcales hanging even on both ſides, one does at laſt evidently preponderate, ſome weight of auth…rity may be thought likely to have been thrown into that ſcale we ſee ſettle and keep the advantage, and That is it there keeps and ſettles it. So likely it did here; and in and from this agitation of things, and ſo as they did ſettling, this ſeems obſervable, and not to be paſſed over: The Temporalty did, we ſee, interpoſe to alter and change what the Church had decreed and ſettled by her beſt power; Their temporals were their own, and they would not endure themſelves to be unreaſonably incroached upon by any forced impoſitions, which made them move again and again, and would not ceaſe till their grievance had remedy; I doe not finde they did the like in other caſes, bound up faſt by other the Churches decrees before; but let them paſs; Therefore (by compariſon) I judge they approved what they did not diſlike; Their3Qui tacet, conſentire videtur. Reg. Iur. Can. 43. Scienti & conſentienti non fit injuria neque dolus. Reg. …8. ſilence gave conſent, and ſo they ſuffered themſelves to be carried along with that ſtream of power they ſaw come from the Church to carry on what it undertook, and to make a Convocation Act ſtrong enough in this caſe to ſettle a temporall ſort of things that had a touch (in that they were annexed to, and the ſupport of Gods ſervice) of ſpirituality. (For all along I deſire it may be carried in minde, The Conſent of men is the firm and only bottom whereupon temporal Right and Dominion do reſt here: Men have agreed, Therefore Thus it was; Which was here and thus compleat and perfect.) If the Temporalty had not ſtirred at all, it had been ſome ſigne they might not: If they had ſtirred and not obtained, the victory might have ſeemed over their power, not their Right, and ſo the uſe of their diſcretion to have ſtayed for their right and moved by their power for it, in a time when they were likely to obtain: But ſith they ſtirred, and obtained, and had redreſs reall and effectuall, A ſigne they might at any other time, A ſign they might have obtained, A ſign that in other things they let ſilently and quietly paſs: Which ſith they did not, Therefore they conſented, Therefore they allowed, Therefore what was done was authoritative by Them; And ſo this whole diſpoſition of things (even all Lindewoods Collection) had their Negative implied confirmation, in that they did not hinder, And by Conſequent even by them, (ſave in the caſe of Sylva caedua) the Canon was Law, Engliſh Law, and approved by all, in that none caſt a rub in the way to hinder, whereas they might, and in other caſes did, But Here they did not. The ſame Authour hath other things diſperſed, (for theſe were hitherto together under one title,) as, where1Lib 1. tit. de Conſ…etudine. c. Nullus Rector. Prohibition is to ſell any Tythes before the 25 of March; After, the Rector might declare his will of the fruits, to pay his debts, or ſatisfie legacies, which was ordered in Hen. 3. time: And elſewhere 2Lib. 5. tit. de Sententia Excommun. cap. Cùm ſaepius.they were to be Excommunicate who ſuggeſted by Calumny to the King and his Judges, that the Eccleſiaſticall Juſticers held plea of Advowſons, Chattels, and other (temporal) things belonging to the Kings Court, Cum iidem praelati & Judices ſuper decimis, peccatis, & exceſſibus ſuorum ſubditorum ſuae Juriſdictionis officium, prout ad eos pertinet, exercent; They did but do their duty and diſcharge their office, medling of thoſe things that did appertain unto them, tythes among the reſt. Neither was this the leſſe true, or the judgement of it of no credit, becauſe 'twas ſpoken of and by themſelves: The thing is evidently and notoriouſly known, nor ſhall want the recognition of their jealous neighbours, the other Courts, who cannot but acknowledg the Juriſdictions here ſevered and cut out as it were impartially and by a thread; nor could a more proper and formal eſſential difference have been found out between the one and the other then this, That the one did handle De jure Patronatus & catallis, &c. as it ought, univerſally of the things of This world, and the other of the reſt, and tythes among the reſt.
Which lets us fitly onward to the other, the Executive part of theſe Legiſlatives hitherto, and how they had their force in the proper place deſigned thereunto for recovery of theſe things thus made Due and ſtated according to theſe Laws; but hereof I have not much to ſay. I was always a ſtranger to their proceedings, nor as to gain or loſe, did I ever do or ſuffer, what might import favour or wrong, to be thereby holpen or hindred at any time; OnelyOnly this I have heard ſpoke out by the clear and loud fame of the world, That here mens rights were tried, and examined, and loſt, and recovered: Pleas were heard, and ſentence given, and that ſentence did, or ſhould, or might have found obedience. If all had not been right and ſquare, as we ſay, exactly juſtifiable, If there had been any remedy at Weſtminſter, or any where elſe that could have been thought of, If the Goddeſs Themis had had any Aſylum or refuge upon Earth whereunto covetous and carnal men might have had recourſe in their fears, with any hopes of protection in thoſe affrighting tempeſts, that like ſome kinde of lightning melted their gold and ſilver in their purſes, yea, out of their purſes, No doubt but ſuch deſired ſhelter would have been made to with greateſt diligence and trueſt endeavour: Queſtionleſs in what dark or remote corner ſoever it had hid it ſelf above ground, men would have both ſought it carefully, and found it ſucceſsfully: Undoubtedly every one man would have told his neighbour, and he another, theſe more, and by degrees all; The information would ſo ſoon and luckily have propagated it ſelf, that no manner of doubt ſhould now have remained, whether ſuch a place had been or not; the path would have been more trodden to it, then to any Church or Market-place in England: But they knew there was none ſuch, They knew all was there, of this nature, (while it was,) firm and anſwerable; They knew thoſe ſentences were there (in their kinde,) by the approbation of all men, and Authority of the Law, valid as thoſe at Westminſter, Pulſa dignoſcere cautus, quid ſolidum crepet: They knew, Try whoſo would, There was that ſolidity. Civil Laws did approve, ſucceſſions of Parliament had allowed, the King had given leave, the whole State had given allowance of thoſe proceedings, and above all, the Law held them juſt and according to Law: And ſo unleſs her ſelf would contradict her ſelf, the head fall off from a principall member, or Juſtice oppoſe Righteouſneſs, They (all the Magiſtrates, Powers, Laws, and Lawyers of England) knew, and could not but pronounce a juſt ſentence in that Court for Tythes to be juſt: were it for ſheaf, lamb, fruit, veniſon, the tenth Thrave, or but a Tythe-lock of wooll; What a ſentence did at Weſtminſter, that a decree did there; What a Verdict and Judgement upon an Aſſiſe, That a concluſive determination upon mature deliberation did here; and What ſufficient ground of Right that gave of Dominion, that a man might thence claim a piece of ground or debt of money, Hic codex eſt meus, Haec domus eſt veſtra, By equall vertue of a like ſentence here, this due charged upon every parcel of land or herd of Cattle had declared right, yea, and judgement for it, in order to execution; Or if any would not come and ſubmit, vocetur primò, & ſecundò, & quòd ſi nec ſic ad emendationem venerit, Excommunicetur, as tertiò; leave was given in the Charter.
Thus as to the power intruſted with the Church, I have now almoſt done; we ſee what the Supream Authority gave in Commiſſion, we ſee what uſe was made of it, we ſee what connivence or more there was of all other powers, and what obedience likely; but of this the leſs being unacquainted at Offices: We cannot in ſhort doubt but the Church made Laws about Tythes, that they cauſed them to be done to execution, that the State inabled them, that the whole Civill Power more then connived or permitted, appointed, authoriſed, and ſtrengthned that power whereby was acted thus according to office and duty on one part, and leave, deſire, expectation, and full truſt on the other: The reſult of all doubtleſs a full right, a clear, aſſured, undoubted, faſt, ſafe and honeſt title, as good as Any had to Any thing, and the evidence of things may diſcharge the ſuperfluity of more waſt words; If any right were anywhere, it may doubtleſs be reaſonably thought to have been unavoidably, Here, Sure, and Thus. There remains yet one onelyonly thing more, ſomewhat in intention, was never quickned to full Act, but was purpoſed to give much in little, the life, ſpirits, and vertue of all before in the new intended to be purified Canon Law by Hen. 8. authority. A thing often glanced at, but here fit to be repreſented together, and briefly and ſummarily was therefore thus: The125 Hen 8 19. Clergy upon caſting off the yoak of forain Supremacy, and ſubmitting to that King, petitioned to have the Provinciall Synods and all the Canon Law as far as of force here, to be viewed and purged, and this to be done by thirty two perſons to be choſen by the King, wherof ſixteen of the Temporalty, ſixteen of the Clergy. The King granted readily what perhaps he had willed to be asked, and the perſons were to be members of the preſent Parliament; but becauſe ſo great a wheel could not be brought about in ſo little time, the Parliament ſitting, their deſires inlarged, were alſo granted, that it might be done after, and then ſo many Canons as ſhould continue approved, ſhould be retained, the reſt as refuſe caſt away. This was upon the matter to furniſh the Spirituall Court with a new rule, wherto as much of the old as would ſhould have ſerved the turn again but till that were done, what was in being to remain. and this ſo farre intended and minded, even with an eye to this very particular, that after when a2Provided always, and be it enaed by Authority aforeſaid, that this Act for Recovering of Tythes, ne any thing therein contained, ſhall take force & effect, but only untill ſuch time as the Kings Highneſ…e, and ſuch other 32 perſons, which his Highneſſe ſhall name and appoint for the making and eſtabliſhing of ſuch Laws, as his Highneſſe ſhall confirm and ratifie to be called the Eccleſiaſtical Laws of this Church of England. And after the ſaid Laws ſo ratified and confirmed as is aforeſaid, that then the Tythes to be paid to every Eccleſi…ſtical perſon, according to ſuch Laws, and none otherwiſe. 27 Hen. 8. chap. 20. new Law was needed for Tythes, Proviſo was thought as fit to be added, that it ſhould obtain but till the promiſed reformation: In the mean while time ſlipping away, and little or nothing done in the buſineſs under nor after Parliament, there was need to have the power127 Hen. 8. 15. renewed for longer date, which was done once and again, and ſo at length for the whole235 Hen. 8 16. time of the Kings life. K. Edw. 6. alſo32 & 3 Edw. 6. 11. continued it for three years in his time, All repealed by41 & 2 Phil & Mar. chap. 8. Queen Mary, but revived by their5Elizab. 1. c. 1. Maiden Siſter. The fruit I find no leſs then the work in ſome ſort done, and publiſhed in the Queens time by J. F. but reprinted about ten years ſince, under the title of Reformatio legum Eccleſiaſticarum ex authoritate Regis Hen. 8. inchoata, deinde per Regem Edw. 6. provecta ad auctaque, &c. Londini 1640. Where heed the title, It was but Reformatio legum Eccleſ. in what form ſoever the new Mint ſhould have come forth made of the old metal; Not Inventio, Rogatio, Interrogatio, Promulgatio of any thing anew, but its very ſelf, Reformatio, Confirmatio, or Novatio, a new ſetting out of what had been before: Not the ſending for new Tables to Athens, or ſuch godly and coſtly proceedings as the poor blind Indians muſt make, (riſing from the flat level) if it ſhall pleaſe God at any time to give them repentance to the acknowledgement of the truth, that they may recover themſelves from the ſnare of the Devil who are taken captive by him according to his will, To make their Native Ordinances ſquare and fit into one building, as to the new teachers maintenance; Raiſing perhaps the tenth fliece from the flock, the tenth lamb from the fold, the tenth ſheaf from the ſhock by a coſtly devotion, and out of their Own creating unto him a new Right; But to reviſe and ſettle that which was, to conſider the ways of taking up, remedy the inconveniences, remove the obſtructions, and ſcoure the wheels upon which ſuits moved, ſtill leaving the thing they found, they needed adde no more, but ſay, Thoſe rights ſhall be paid that have been. This all they intended, a Reformation, not deſtruction, which would infer need of a new creation; Not to adde an apple or an aye more, as that Poet ſaid, which I ſhall always account unjuſt (unleſs with much caution limited,) and would not have done for God or man. No not for Religion, which needs not injuſtice, or that any be put out of his Right for Gods ſake; And God be thanked, as things are, and the world has been devout heretofore and devoted, it needs not; Let but God and man have their Due, and Religion is well provided for. We may talk of raiſing more by fruitfull beneficence, and the good will of men ſhall move Mountains this way; But let the Law of the Goſpel have but our equall juſtice, with diſcreet adminiſtration of that which is, and it ſeems not to want already what the world can or need do for its outward ſuſtentation by what was done for it before our fathers were born. Well: this plotted Reformation as 'tis called, (to go on,) was as to the work to be performed, taken into four quarters, and each quarter again into as many Cantons, whereof every one had two Biſhops, two Divines, as many Doctors of Law, and ſo many Common Lawyers, (contributing their powers and endeavours to ſtudy, act, and overſee,) and to perfect all. Sir Walter Haddon and Sir Jo. Cheek were to fit it with ornament for the ſetting forth, which they did repreſenting it to the world, (and ſo it is now to be ſeen,) dreſſed up in a very fair Robe of curious Romane language: As to Authority publiſhed it was with two Manifeſtors of the two Princes, willing it1Strictè praecipientes ut his noſtris Conſtitutionibus vos omnes & ſinguli tàm in judiciis quàm in Gymnaſiis utamini. Hen. 8. in Epiſt prafixa. to be ſtudied and followed in Univerſities and Courts, 'tis hard to give the reaſon why it was not; All which was needfull to know, that we might infer of what power and authority is that we ſhall alledge. One2Pa. 215. title is, de Decimis, having under it nineteen Chapters as followeth:
Cap. 1.
Decimas eſſe ſolvendas. Quoniam Dominus noſter Jeſus Chriſtus hanc ipſe legem ſancivit, ut qui doctrinam inter homines conferunt, ex docendi labore praefidia vitae metant, & ejuſdem Domini noſtri teſtificatione, Digni ſunt mercede quicunque ſunt in opere; Porrò divinum jus ſcriptum bovi trituranti cum os obligari …on ſinat, nobis exemplum divinae clementiae repetendum eſt, & validè videndum, ne vel nimia noſtrorum hominum avaitia vel negligentia fiat ut Eccleſiarum noſtrarum miniſtris justi & convenientes fructus ex ſanctiſſimorum occupatione munerum non ſuppeditentur.
Cap. 2.
Decimae praediales quo modo ſolvi debent. Igitur authoritate noſtra conſtitutum ſit, ut omnes ſingulique ſubditi noſtri, locis & temporibus deſignatis & legitimis, decimas omnium rerum ex praediis provenientium miniſtris ſeponant, ſive foenum ſint ſive fruges qualeſcunque quorumcunque locorum, ſive Crocus, ſive Canabis, ſive linum, ſive ſint olera vel arborum fructus, &c. and ſo on to the exactneſs of the Phariſee to tythe All. Of Mills, Turves, Coles, Quarries, Paſtures, (Agiſtment cattle I think they mean,) the breed of Cows, Swine, Sheep, Mares, Swans, Hens, Geeſe, Pigeons, Conies, Deer, Fiſh, Bees, &c. Reviſing and expounding the Act of Parliament a little before made and approving it. But becauſe the reſt at large may take up too much room, therefore take but the Quinteſſence as it were extracted in the Contents of the Chapters.
Cap. 3.
Animalium decima annua quomodo juxta numeri rationem ſolvatur. How the tenth ſhall be reckoned.
Cap 4.
Diviſio decimarum qualis ſit.
Cap. 5.
Decima rerum alienatarum quomodo recupenetur.
Cap. 7.
De Jure Vicariorum.
Cap. 8.
Quando miniſter ex proventibus Eccleſiae ali non poteſt: Directing and counſelling to all lawfull means can be thought on for augmentation.
Cap. 10.
De decimis colligendis in aliena parochia.
Cap. 11.
De locis qui ſunt à decimis liberi.
Cap. 13.
Decimae praediales & perſonales quomodo ſolvendae.
Cap. 14.
Solvendas eſſe decimas perſonales.
Cap. 15.
Proprietarii quomodo decimas ſolvent.
Cap. 16.
Decimas utriuſque generis ſolvendas eſſe, ſc▪ both praediall and perſonall, if they ariſe due from the ſame man.
Cap. 17.
Cauſa decimarum inter ipſos miniſtros non progredietur.
Cap. 18.
Conſuetudo non ſolvendi decimas invalida ſit.
It might have been convenient to have repreſented here a full tranſcription of theſe things; but there is intimation where they may be had for uſe, which may be enough, where brevity is ſtudied. Theſe Proviſions of a Law ſhew clearly what the ſtate then meant, as to Reformation, and even in this particular (if the purpoſe of the ſtatute had been obtained for aboliſhing the old Canons,) and how inviolable the right of Tythes ſhould have been Then by their profound wiſdome and diſcreet piety, which is alſo better ſeen by account from theſe publick conſultations then any private informations. The reſults they were of a ſevere and ſearching reformation, wherein as many ſtones had been moved (hoping thereby to ſettle others) as in any tumbling Age; and for the diſtreſſed Church what men durſt do, if it had been judged convenient, needs no other demonſtration then what was done: But profound wiſdome joyned with much piety, and a conſcionable regard (proceeding in the fear of God) not to deſtroy what they meant to reform, or to purge out corrupt humours to the death of the patient, made them ſoberly carefull we ſee, and tenderly jealous not to meddle too far here, and for fear of darkneſs over all diſcreetly adviſed to let none of the oyle be medled with that kept the Pariſh Lamp burning, but rather gave hope of adding more where need was, (with encouragement to bring it in,) ſetting open a door to let in other ſupplies of needfull expence for theſe Lamps diſperſed all abroad, if God ſhould ſo move the hearts of thoſe that loved the Tabernacle and the light thereof, to bring any offering; To ſtrip all having been a thought of ſuch horrid injuſtice and barbarous impiety, joyned with Improvidence (as to Religion) and imprudence into the bargain, that in likelihood truth might have been in danger of periſhing from the earth by this time, and according to ordinary diſpenſations of Providence, we have now had little enough of Law or Goſpel to take up conſultations for the maintenance of, by that the Bible might have been near a ſtranger, if this had prevailed: But into their ſoft and tender boſomes, by the Grace of God, ſuch thoughts had not leave and power to enter.
Why the tree thus planted hath not been known to bear fruit, or this new body thus framed, not received to be practiſed by, is, I ſaid, hard to gueſs; the beſt reaſon I can think of is for want of Parliamentary allowance and ſubſequent confirmation, for nought elſe ſee I wanting: yet as ſtrange that what a Parliament had appointed to be done, and being done, and accordingly, ſhould not have therewith what ſtrength it could give. But ſo it has been, a dead letter hitherto, onelyonly living in the good wiſhes of knowing good men, that it were quickned to full life, and the laſt Eccleſiaſticall piece (I call it ſo in regard of the Materia prima, out of which it was made, the end whereat it aimed, the things it directs about, and its diſtinct ſtanding off from the more common or ſecular,) that, of this kinde, our Common-wealth hath afforded: Not unfitly reduced to this head of Eccleſiaſtick, whoſe proceedings have been ſuch by vertue of due power throughout this buſineſs, that it needs no protection of Hyperbole to excuſe that all have either liked or willed; Kings, States, Parliaments, Judges, Lord, Laws, not ſparing their vote of approbation, (to this particular ſtill I mean) and all that have, have looked on either to allow or confirm. With this one intimation more I cloſe up the point, that wheras this new body is not yet it ſeems authoriſed perfectly, till it ſhal be, All the old (including thoſe alſo I made uſe of before) are in force by a concluding Proviſo of that firſt ſtatute (25 Hen. 8. 19.) where the whole buſineſs was ſtarted. The words are theſe: Provided alſo, that ſuch Canons, Conſtitutions, Ordinances, and Synodals Provincial, being already made, which be not contrariant nor repugnant to the Lawes, Statutes, and Cuſtomes of this Realm, nor to the damage or hurt of the Kings Prerogative Royal, ſhall now ſtill be uſed and executed, as they were afore the making of this Act till ſuch time as they be viewed, ſearched, or otherwiſe ordered and determined of by the ſaid thirty two perſons, or the more part of them according to the tenour, form, and effect of this preſent Act. But this not yet done, and therefore all the former Canons yet of force till, &c. and that by this Authority.