The Civil Right of Tithes, Ecclesiastical tract · Chapter 23
CHAP. XXV.
ONelyOnly there is one thing wherein (with due reſpects) I ſhould crave-leave to give in mine opinion with ſome difference from that moſt Learned man, (which ſeems alſo his conſtant reſolution, becauſe he repeats it,) and it is, That the proper ſcene of the trial of theſe dues was not anciently in the Conſiſtory,Cook in Inſtit. 2. pa. 661. on this very Statute of 2 Edw. 6. And before, on the Statute of Circumſpectè agatis. pa. 489. and in Inſtit. 4. chap 53. pa 260. till placed there by Circumspectè agatis, Articuli Cleri, 18 Edw. 3. chap. 7. &c. but in the County Court; Which if, much of what before would loſe much of its ſtrength, But ſeems not ſo allowable for theſe following reaſons:
I. No ſuch thing is averred plainly and poſitively, in any of theſe Laws, or any other, And that had need be plain and poſitive ſhould have changed a thing, Such a thing in being.
II. The evident contrary is in them all either expreſſed or inſinuated. For, for the latter it mentions the remanding or diſmiſſing ſuits of Diſmes back from the Secular Judge, which muſt be ſure ſomewhither: And for the two former which might be anſwered to create that referrer, take them either together, or apart:
1. Together, and ſo they mention ſeverally a Prohibition: Prohibiting, what ſay I? That which never was? Or, then was no where? This were nonſenſe as to the reaſon of it, and it were a great blemiſh to the wiſdome and gravity that hath always attended thoſe Aſſemblies to ſuppoſe they would declare any thing for Law that might imply contrariety or abſurdity in truth and reaſon: As that, That ſhould be prohibited to be, that had not been, or that the Kings Judges ſhould deal circumſpectly with the Eccleſtaſtical, not forbidding them to hold plea of that they never did hold plea. The rule is in nature before the exception, the thing before the limitation; And exhibition of ſomething granted and uſed before there can be thereof a Prohibition; As there muſt be Marriage before Divorce, and a property of Meum & Tuum, before the Decalogue can take place forbidding to ſteal: Even ſo here, there muſt have been a trial of tythes before with the Eccleſ. Judge, before the Kings could be prohibited to prohibit him; his hands muſt have been looſe, before they could be forbid to be bound, and He uſed no meddle before any could ſoberly and rationally meddle to hinder his medling.
2. Apart, and ſo all is yet plainer: for conſider them diſtinctly, and by the firſt Chapter of Articuli Cleri, No prohibition was to take place to hinder the proper Court in matter of tythes, and ſurely then the buſineſs was there: And for Circumspectè agatis there is expreſs mention of their there trial. For the Judge of Norwich was not to be hindred, nor his Clergy, if, 1. they held plea of things meerly ſpiritual, as of penance, &c. in their Court Chriſtian.
2. Nor if a Parſon demanded of his Pariſhioners oblations or tythes due and accuſtomed, &c. (So that, They were there Then demanded:) and in the cloſe: In all caſes afore rehearſed the Spiritual Judge ſhall have power to take knowledge notwithſtanding the Kings Prohibition. Which is not a little ſtrengthned by a former Statute, (as it ſeems it is, though of the ſame year, for it is placed before it,) where1Weſtm. 2. c. 5. 13 Edw. 1. in Pultons Abridg. p 50 it is ſaid: When once in a Writ of Indicavit the buſineſs is deraigned in the Kings Court (that the prohibiting Patron can ſuſtain no conſiderable loſs in any part of his Lay Advowſon,) preſently as it comes to be a caſe of tythes it is ſent back to the Court Chriſtian, and2The ſame Statutes (of Articuli Cleri, Circumſpectè Agatis, & Weſtm. 2.) allow to the Spirituall Iuriſdiction cognizance of a fifth, and of all parts leſſe then a fourth of the value of the Church in tythes controverted between two Parſons. And no Iudicavit is grantable to forbid the ſuit of one of them commenced for any leſſe part in respect of the Patrons Right onelyonly. Neither upon them by conſequence hath any Writ of Right of any part of Tythes that appears not to be a fourth part of the Churches value been allowable. So expoundeth M. Selden in his Hiſtory of Tythes, pa 427. the plea ſhal paſſe there ſo far forth as it is deraigned in the Kings Court.
III. The Stat. of 1 Rich. 2. 13. mentions it then, as Of old, and had Wont to be, that tythes ſhould be tryed where they were ſent, but had been lately reſtrained; which had been very inconveniently ſaid of ſuch late times as were ſo little before as almoſt within an hundred years, eſpecially by a grave Parliament, as was urged before, which uſeth to meaſure words and know things. But of this ſufficiently there.
IV. The Statute of Conſultation, alledged alſo before, was made 24 Edw. 1. ſc. before two of the three alledged, and ſo ſpeaks as could not be ſuppoſed more plain againſt ſtopping the Eccleſiaſtical Judges by Prohibition: which ſhews ſurely they did proceed then.
V. Review and call to mind what was ſaid before here, 3Pa 103, 104. &c.both of erecting the Eccleſiaſtical Court, and trial of tythes there, and how long, (for they were under the Canon) and this will be much toward, or reach home to the clearing of the whole buſineſs.
VI. Examine things according to their nature, and they would ſeem always fitlieſt here conſiderable: For who looks upon things as they are, and thinks not every man fitteſt to take care of his own matters? The Church fitteſt to look to the things and ſupport of the Church? Or, that the maintenance of our Religion could have been ever anywhere more fitly inquirable and determinable of, then in the Court Chriſtian, the Court of Religion? Yea, even frther for this reaſon, becauſe they were spiritualibus annexa, as Bracton calls them ordinarily, they muſt be in way of tryal ſpiritualitati annexa. And hence alſo we finde the purpoſed and diſperſed tractation of them, as in their proper Cell, in the Canons; Not in the Statutes, nor in the Year-books, nor in Bracton, nor Fleta, nor the Common Law it ſelf, (of late days,) for the nature of them brought them elſewhere for Regulation and Tractation; Why not? Yea, neceſſarily Therefore to the anſwering Court for diſcuſſion.
VII. Take the opinion of one, not leſs Learned (without diſparagement,) then that Learned Juſticer, who with judgment and much freedome inquired here into, and purpoſely long ſince; And he ſettles the Juriſdiction from the County to the Conſiſtory by the Conquerour, as before.1Selden Hiſt. of Tythes, cap. 14. His 14. Chapter is a Judicious and Intended Hiſtory of that Juriſdiction, which having found commixed with the Secular under the Saxons, and Danes, He makes them part with the Conquerour: He produces ſome inſtances of Caſes ſoon after reaſoned and determined before the Eccleſiaſtical Judges, and with equal diligence is troubled to find, as a rarity, ſome other in the Kings Court ſo low, as about Hen. 2. and King John, and then Regularly they began to come to the Church alone, and nere there handled at firſt inſtance onelyonly. This, (and it hath been ſo ever ſince) is long before 9 Edw. 1.
VIII. The Stat. De Regia Prohibitione, ſeems made when before. The print has it indefinitely for Hen. 3. or one of the firſt Edwards: But ſith no evidence is for any of theſe, the place and manner of entring may give it to paſs that it was in the former, ſith, as before, in the leaſt deceiving or to be ſuſpected way of entring in Manuſcript of about thoſe times written, it is caſt in among the Laws of that date, and by name before the Statute De Biſſextili, made 21 Hen. 3.
IX. Plainly in another Manuſcript of that Kings Raign, among other grievances which the2Annals of Burton, in M. Selden, pa. 429. And obſerve what follows in Rob. Groſſetell hu complaint there next, especially that, A ſeculari n. Iudice diſcin… di non poterunt, pa. 431. and the advice of the Synod at London, p. 433 Clergy in a Synod at London repreſented to Otho the Popes Legate, deſiring him to repreſent them to the King for remedy; One was, The laviſh uſe of the Indicavit, whereupon, Solent Juſticiarii Domini Regis judicare, quota pars decimarum peti poſſit vel debeat coram Judice Eccleſiaſtico: which was to binde the hands of that Judge, preſuppoſing therefore certainly, and therein that he had then ſome liberty to uſe them. And another Article: Item ne currat Prohibitio Domini Regis, ne Rector Parochialis Eccleſiae impetat eis qui percipiunt decimas infra limites Parachiae ſuae. There needed a Prohibition then to ſtop the uſuall courſe of the Parſons, ſuing for the tythes of his Pariſh; where? think we.
X. To omit1Decimae quatenus decimae debent in foro Eccleſiaſtico intertari. lib. 6. cap 37 Fleta, who might be but under Edw. 2. (and yet many paſſages are in him fair for proof, that as ſure they were then, ſo things had continued from Bractons time:) But for Bracton by aſſurance enough 'tis evident from him, that he often mentions tythes as Spiritualibus & ſpiritualitati annexa: and indeed he that can judge any thing by complex on of things, will be apt to paſs his ſentence from their nature; they were not far off from Cauſes Teſtamentary, Matrimonial, and other of tendereſt like nature and conſequence, then knowne to have their walke here. Among other2Lib. 5. Tra. 5. de Exceptioni…bus, cap. 2. ſect. 5. ſo. 401. Exceptions (treating of them in general,) he lays one ſort againſt the Juriſdiction of the Court, deſcribing and defining what each is, and coming to that Section, Quae pertinent ad forum Eccleſiaſticum, & quae ad forum ſeculare, among other things this comes in: Nec pertinet ad eos (the King and Secular Judge) cognoſcere de iis quae ſunt spiritualibus annexa; ſicut de Decimis & aliis Eccleſiae proventionibus. Item, nec de catallis quae ſunt de teſtamento vel matrimonio. After proceeding to the Common place of Prohibitions, 3Lib eod. cap. 9. & 10 fo. 406, 407.quando & in quibus locum habet Prohibitio, ſicut de re ſacra, &c. when allowable, when not; They do lay he ſays in caſe of lay fee, &c. but they do not when the doubt is de aliquo ſpirituali, vel spiritualitati annexo: Is tythes any ſuch directly? It follows: Item locum non habebit prohibitio ſi agatur de decimis: which gives more then their Juriſdiction here, here alone without any removal; a Prohibition could not prohibit, and it had been vain again to ſuppoſe a Prohibition of that might not be prohibited. This is farther that alone that takes place to cauſe a ſuit to be new 1Cap. 4. ſect. 1. fol 402.graffed from a Clerk to the Patrons name, bringing (upon ſuppoſition of wrong done to him in his Lay-Advowſon,) the main to the temporal Judge by Indicavit; And this not only if the whole tythes were in queſtion, but a2Ib. ſect. 2. fourth part, a fifth, or a ſixth, but no farther: for ſo far the Writ of Indicavit would then reach, though3By the Statute of Weſtm. 2. ca 5. Circumſpectè agatis, ſect 2. & Artic: Cleri, cap. 2. Whereof ſee a notable diſquiſition in M. Selden, de dec. cap. 14. ſince it bee altered, and to the fourth part limited. Again, Item 4Cap. 10. ſect. 6. fo 408.locum non habebit prohibitio de recenti ſpoliatione, ut ſi Clericus Clericum ſpoliaverit de Decimis vel aliis de quibus cognitio pertinet adforum Eccleſiaſticum, in another place. And yet again in another, they are both ſtyled5Ca. 16. fo 413 Res Spirituales (not onelyonly Spiritualitati annexae, in their Juriſdiction as was alledged, where6Cook Inſt. ubi ſupra. before, but Res 7Bract fo. 412Spirituales,) and are ſaid to ſhift faces and change ſhapes; now for This, anon for That; One while for lay, Then for tythes, and back again ere long (as it may be) to Temporals. As Lay, Laica catalla, So they are under the ſecular authority: As res decimatae, tythes marked out, ſo under the ſpiritual: and as ſold returning back again to Weſtminſter. Quo teneam nodo? yet thus it is, and the thing the ſame under ſeverall ſuppoſitions and conſiderations. Many other ſuch aſſertions, ſuppoſitions, and intimations there are in him; The whole frame of whoſe Diſcourſe bends this way, or is managed as ſuppoſing things thus, and I am confident he hath not any thing to the contrary. As for Glanvil who was before, he mentions the Court Chriſtian often, but never tythes tryed there that I could finde, (though Glebe often;) This I confeſs: But then withall he mentions them not all to trial, nor as here, nor anywhere elſe, and ſo his authority is to be drawn neither way. Bracton dates from the fartheſt backward beſides, And he hath as hath been ſeen.
And theſe things do, I reſt aſſured, ſecure the thing undertaken for the Juriſdiction of tythes ſooner in the Conſiſtory (and by conſequent their right) then was allowed by that moſt learned man. I hope his friends and favourers will not take it amiſs that a Pigmy dare confront a Gyant, or Hercules in his power have ſome oppoſition by a weak and common paſſenger: Magis amica veritas, it muſt be ſo with me, and before whomſoever the beauty of Truth moſt gracious and lovely. Exoſculor, I profeſs to love and reverence the memory of that moſt deſerving man, both bleſſing and admiring the footſteps of his ingenouous ſedulity, wherever I ſee him tracing with ſo much care, induſtry, eloquence and gravity, the windings and turnings of his ſacred profeſſion, (for he was a Judge of Iſrael:) But magna eſt veritas & praevalebit, Truth hath the greateſt command, power, and luſtre with me before All, and muſt ever prevailbefore any opinions, perſwaſions, perſons or names of men in the world. Which I take to be here, that the Juriſdiction of tythes was not made a branch of Church-power by force or permiſſion of any ancient Statute, but a native and connatural branch of her firſt power, born with it and receiving life in this world, and hath been bred, continued, conſerved, and brought up with it hitherto, nor ſince that Court has been, but this hath been a part of its work through all ages and generations. And ſo ſhould I have done with this Statute, (whoſe comments have occaſioned this digreſſion,) but that finding there a clauſe for perſonal tythes, yet in force, and the things due, but little ſaid of them elſewhere, and this thought the OnelyOnly ground; For illuſtration of a dark truth, and clearing their doubted right, I think it not amiſs to continue a few ſteps more beſides the direct way, to enquire preſently what deeper radication they may be diſcovered to have then the bare command of that ſingle authority: For no queſtion is, but they are due, and in conſcience ought to be paid, as well as other dues, the Law remaining, whoſe Dueneſs ariſes onelyonly by the word of the Law: Neceſſitate praecepti, as we ſay, meerly by vertue of the commandment; no other equity or neceſſity of the Thing appearing, but onelyonly becauſe they are ſtated ſettled Rights, by like reaſon where to here. He that denies my Heriot or Relieve, may as well his half years rent: He that ſhuffles for his ſuit or ſervice, Homage or Fealty, by like reaſon (why not?) for his Corn or money: For the ſame Law gives the ſame Due to all; They ſtand upon the ſame bottome, are brought in by the ſame Spring, and if this prove too weak for the one, it may not be long ere Thence the other fall ſhort of Home alſo.