The Civil Right of Tithes, Ecclesiastical tract · Chapter 26
CHAP. XXVIII.
ANd now it may be time to look forward, but firſt a glance or two backward, that we may not loſe our ſelves, to ſee the way we have already gone. I hope it is either made evident, or at leaſt much hath been ſaid for it, that Tythes are Civilly, Politically due; They are ſo, for they have been given; they are ſo, becauſe that gift hath been confirmed: comfirmed by the common Law (in its Cradle:) confirmed with the confirmation of King Edwards Law, confirmed by the Church Law, of Authority ſufficient, and now laſtly by the glances of the State. But by-blowes I confeſſe theſe laſt, yet as they have been ſet on, I hope reaching home, till of late ſome were direct in Henry 8. and Edward 6. time, (yet of force;) and ſo is alſo the Petition of Right, it being taken they were before a Right. Deſcend we now from publicke to private, and ſee what the Sages have ſaid, who are either Law, or after next to Law. The Romans had their Responſa Prudentum taken into the Digeſts which although they were at firſt but the iſſue of private thinkings, given by ſingle men upon occaſion in deciſion, yet with time they got credit, and being found uſefull, and meetly well agreeable with reaſon (the great Standard even of Rules,) They were at laſt taken into the Rule, and urged as the twelve Tables, or the Senatuſconſulta, of original and ruling Authority for themſelves: So and by the ſame degrees have ſome mens credits and ſavings been advanced with us, whoſe ipſe dixit is next to Oracle, and their private voice ſo highly advanced as to be for Authority and Rule next to the Publick of the Kingdom. We ſhall not be long nor curious in this ſearch; for ſtill the Publick ſpeaks lowder to Credit then any Private; and why ſhould we care much for Silver, when we had plenty of Gold before? or look after even the Judges, when their Maſters ſtood ready, yea the Rule of the Judges Maſters in publick Agreements ſubſervient to juſtifie our Aſſertion and undertaking?
And Lord chief Juſtice, Cook is here firſt, (for we will now take leave to proceed ordine retrogrado according to licence reſerved) He is now become almoſt a good Authour; but becauſe his opinion and practiſe are both in freſh memory with many both as to Pleading, Councel, and Judgement, the leſs would therefore be ſaid of him, becauſe known. In 2. of his Inſtit. alone he ſo comments on four ancient Statutes, ſc. 1pa. 489, 490.Circumspectè agatis, 2pa 610, 611, 612, 619.Articuli Cleri, 3pag. 619, &c.the 18 Ed. 3. 7. touching the Scire facias from the Chancery, and that 4pag. 648, &c.of 2 Edw. 6. 13. that none that knows the occaſion can well forecaſt any doubt of the event; none that conſiders the Text can much doubt of his Comments, unleſs he will make ſo croſs and abſurd interpretation of his likely meaning, as that he choſe his Theme to go againſt the Suppoſitum, or meant to darken and contradict what was taken in hand to expound and illuſtrate: ſuch were Commenta indeed rather then Commentaries, ſtrange inventions: but He raiſed his Doctrine according to his Text, and proſecuted it punctually, as he had raiſed it. Let them heed him well who alleadge him frequently, accounting him Authority in one part as well as another, or elſe the World will account them I know what, Partial, I mean; That All; and that's true enough, That they do but in ſtead of repreſenting his ſenſe fully as they finde it, pervert it, picking a Poſie perhaps of the ſowreſt flowers, and leaving out what is not to their advantage, or to their diſadvantage, inſinuate, that is not, which perhaps they would not have. Sure he thought, ſpake, wrote, and judged, that Tythes are civilly due, when he ſhunned not to declare they were every where due,1Report 2. fol. 49 6. in the Arch-Biſhop of Cant. C…ſe, avouched by a London Miniſter in his late anſwer to a Do…bt about the a…ienation of Tythes, p. 17▪ And in the ſame Report fol. 45 in the Arch Biſhop of Winch. Caſe, alledged by Spelm. de non …emerandis Eccleſ. Sect. 16. Jure divino. To omit his own References to his Reports. Be Sir Thomas Smith next, a Doctour of both Laws and a principal Stateſman; His Deſcription of Englands Republick paſſes with good credit, in the laſt Chapter whereof he deſcribes the Court Chriſtian, acknowledges its juriſdiction, ſends matter of Tythes thither as a part of the Work, and if once he had them there, he knew, being not onelyonly foreign, but foreign, what even to Mint and Cummin, would become of them. The Authour of the Dialogue between the Doctour and Student is2By Dr Cowell in his Interpret. in the word Docto…r. ſaid to have been Mr. St German. It was wrote in Henry 8. days, not toward the end, and for the ſolidity and depth of it may paſſe for one of the very excellent and ſingularly jndicious pieces of that moſt excellent Learning. Now He admits Tythes as conſequentially due upon that account of3Dial. 1. cha. 2. ſo. 11. And in the new additions to that Book printed. 1531. He tells us; In the Kings Bench & Common p…ace they will ſuffer no iſſue to be joyned, ſpecially betwixt perſon and perſon, whereby he Right of the Tythes may be tried, howbeit that in the Exchequer ſometimes they have done otherwiſe. Addit. 5 fol. 14. Eccleſiaſtical Juriſdiction, and this reducibe to the ſecond ground of Law received here, which is, the Law of God, and though the Student cannot afterwards well away with the Doctours Jure divino, yet by Ours, Poſitive, and here, he makes no queſtion. For by the Law of Reaſon (one of the Grounds he had made of the Law of England before) he would have ſomewhat; for the Labourer is worthy of his hire, and then by the Law of the Church, (This I queſtion not how reaſonably, but thus 'twas ſettled, and the Conſtitution prevailed,) And he gives reaſon for all: For 4Dial. 2. chap. 55. fol. 165.there is no cauſe (he ſayes) why the People of the new Law ought to pay leſſe to the Miniſters of the new Law, then the People of the old Teſtament gave to the Miniſters of the old Teſtament: for the People of the new Law be bound to greater things then the People of the old Law were, as it appeareth, Matth. 5 20. And the ſacrifice of the old Law is not ſo honourable as the ſacrifice of the new Law is; for the ſacrifice of the old Law was onelyonly the figure, and the ſacrifice of the new Law is the thing that was figured; That was the ſhadow, this is the truth. And therefore the Church upon that reaſonable conſideration ordained that the tenth part ſhould be paid for the ſuſtenance of the Miniſters in the new Law, as it was for the ſuſtenance of the Miniſters in the old Law. So howſoever it is a Due, and he is there diſcuſſing the equity of the Statute of Sylva caedua, which although he defend, yet no more, and in that enough, as before was ſaid, ſpeaking of it. For if there were Aſſertion, that a Prohibition ſhould take place in that particular Caſe, there was implication in others it ſhould not; a by-confirmation, here and there, and in neither can be doubt of what I deſire. Aſcend at next ſtep up as high as Fleta and Bracton, for we are now among particular fallible men, the Credit of whoſe Vote is not to be compared with the Publick, and therefore we haſten accordingly, yet ſo as we know what ſway theſe bear in Judicature, and that they over-rule the very Rulers and Judges: Ego verò illos veneror, & tantis nominibus ſemper aſſurgo; as I believe, after Sir Edward Cook moſt of the chief Juſtices have been ready to ſay, and I do unfeinedly. Let Fleta be firſt, and He1Lib. 2. ca. 60. Sect 27, &c. p. 1 31. ſpeaking of Contracts and Obligations by them, and an Action of Debt juſtly grounded upon both gives the Tryall of Tythes in that Court, will ſurely give Them. Ex hujuſmodi autem obligationibus, promiſſionibus, & ſtipulationibus oritur in curia Regis quaedam actio, quae dicitur Placitum ex debito, eo quod ſpectat ad Coronam Regis, ſaith he. But except, Niſi ſint debita à teſtamento vel matrimonio ſuborta: quae quidem in foro Eccleſiaſtico habent terminari, ſicuti & omnia quae merè ſunt ſpiritualia; as Penance for ſin, though pecuniary: So for Church Reparations, &c. 29. Item ſi Perſona, (that is, that living Man, who as one ſeen and known, ſtands forth and acts for the Church, which is alwayes in it ſelf a dead Corporation, a Suppoſitum, or Non ens, without any real ſubſiſtence, and muſt therefore have a ſeen, known, living Executour, whoſe name may be uſed, and being cloathed with Circumſtances under being and exiſtence; In that name and under that Perſonality may do ſundry things which otherwiſe conveniently could not; As give or take, gain or loſe, do or ſuffer; the Churches Man, we may ſtile him; Rector is another thing2Laicus igitur praeſentat ad Eccleſiam vacantem ut praeſentatas Eccleſiam Regat, & Epiſcopus eam dat, ſc. praeſentatum admi…tit ad Regimen, & inſt…tuit. Bracton. l. 2. c. 23. f. 53. implying duty, and grounded upon ſuppoſition of Power. Now if that Perſon or Churches Man petat à Parochianis ſuis debitas decimas & conſuetas, (in the very words of the Statute of Circumspectè agatis) vel ſi Rector agat contra Rectorem de decimis majoribu… vel minoribus, dummodo non petatur quarta pars valoris alicujus Eccleſiae vel decimarum: (for then, (if alſo the Churches be of ſeverall Patronage, not otherwiſe,) the Indicavit takes place, and the Right of Tythes muſt be tried in that of the Advouſon, between the Patrons whoſe Lay intereſſe is in queſtion:) And of theſe all, Sect. 32. Haec autem praecipuè in foro Eccleſiaſtico habent terminari, non obſtante Regia prohibitione. It ſeems the nature of them was ſuch, that if they were drawn aſide they could not reſt there, but muſt return to their proper chanell, and with other things of the ſame nature have properly and together their diſcuſſion and determination in the Court of Religion: And remember this all along, That, as the Philoſopher ſayes, that which gives the Cauſe (ſufficient) gives the Effect; That which gives the means to compaſſe ſuch an end may be interpreted to allow and give virtually that end will be ſo wrought in and brought about by thoſe means; Even ſo mediately, that which gives the Juriſdiction gives the work, and effect thereof; That which gives the Triall gives that which will come of the Triall, be it what it will; (virtually, and in the ſufficient and neceſſarily producing Cauſe) Which is alſo of uſe in that which follows from the ſame Fleta in his Citation of the Statute of Weſtm. 2. cap. 5. Where approving the Clauſe before of the Indicavit, and ruling power thereof, he yet1Lib. 5. ca 17▪ Sect. 9. pag 330. makes the bottom, after diſcuſſion in the Kings, to be the Churches Court; and as that ſhall ſentence ſuch or ſuch a Patron to have right or wrong in the Advouſon of Tythes, ſo after the binding ſentence, though regulated before, muſt be formally given in Curia Chriſtiana for them. 9. In caſu autem quo Rector Eccleſiae impeditur ad petendas decimas (ſaith he) in vicina Parochia per prohibitionem de Indicavit, habeat patronus rectoris ſic impediti breve ad petendam advocationem decimarum, & cum diſrationaverit, procedat poſtea placitum in Curia Chriſtianitatis quatenus diſrationatum fuerit in Curia Regis. The final ſentence muſt be here, though the diſcuſſion be elſewhere, as upon a Verdict at the Aſſizes the Judgement Poſteà is given at Weſtminſter, though the Triall were in the Country. Afterwards, then which nothing is plainer, treating of Exceptions to Pleas, among the firſt is the Court1Lib. 6. ca. 36. Sect. 7. pag. 428. Erit igitur à digniori incipiendum, ſicut à Juriſdictione judicantis & perſona Judicis, cum ipſe ſit pars principalis Judicii. And what is that? it follows,2Cap. 37. Sect. 3. p. 429. Cum autem diverſi ſint Judices, aeſtimare debet quilibet an ſua ſit Juriſdictio, ne falcem ponat in meſſem alienam. Iudex autem ſecularis de rebus ſpiritualibus cognoſcere non debet. (The greateſt reaſon in the world) Decimae autem in quantum decimae, & res teſtatae in poſſeſſione teſtatoris tempore obitus ſui exiſtentes, &c. in foro eccleſiaſtico debent intentari. In a near caſe indeed, not: as if the Tythes have been once ſold, for then Per venditionem jam tranſlata est ſpiritualitas in temporalitatem, & quo caſu locum habebit Regia prohibitio ad inhibendum judicibus eccleſiasticis ne in cognitionem hujuſmodi catallorum procedant, &c. If ſold, they change nature, and by conſequent Triall: and much there follows of ſuch prohibition and permiſſion, but of Tythes as Tythes nothing but as before. From3Before p. 202. Bracton (to come to him next) four of five places were given before for permiſſion of Juriſdiction decimal hither, which have all their uſe here▪ to which may be added this one, (for thoſe I repeat Not, but remit to them) which ſpeaks thus. If a Clerk wrong another of Tythes, a Prohibition ſhall not lay ('tis in the Treatiſe of granting Prohibitions,) becauſe there is no wrong to the Patron in his Lay fee, which is his Advouſon;4Bracton. l 5. tract. de except. ca 10. fo. 408. Sect. 6. Item locum non habebit prohibitio de recenti ſpoliatione, ut ſi clericus clericum ſpoliaverit de decimis vel aliis de quibus cognitio pertinet ad forum eccleſiasticum, quia de hujuſmodi restitutione non generatur praejudicium patronis, quantum ad jus advocationis. And this granting the ſcene of Triall is ſtill upon the matter a granting of all: the ſending for Triall to where before it is known what will be there ſaid, a virtual approbation and confirmation of what ſhall be there done; As he that refers to the Admiral Court does, upon the matter like and approve the Civil Law ſo far forth there ruling. And our ſtate having many Rules de pactis, but few de legatis, or of Wills themſelves, ſending, in its Own want, to Another place, and willing the Rules of the Canoniſt or Civilian ſhall take place, does interpretatively ſpeak further, That what is there done and decreed is juſt, and by it ſelf approved; Even ſo the party grieved appealing to the Temporal Court, making his Caſe known there, Praying relief which is denied, His tenth fliece or ſheaf are like to be taken away, and upon Complaint, nor Parliament, nor Common Law afford him any comfort, but their Miniſters or Conſultations and Reſolutions ſend him back to where the taking away ſhall be allowed; What is this but mediately, remotely, and implicitly, but fully to approve of what is there done? For they are preſumed willing to do juſtice, and known able, but not interpoſing, do conſent and partake in the deciſion they order to, be it where and whatſoever. So that it is no vain ſuggeſtion ſo often repeated, and neceſſary to be always underſtood, that the making good the Juriſdiction is the ſecuring all, for all comes along with it, as Mahomets Alcoran will bring a long Tenths with it to Religion and for Conſcience in way to his Paradiſe, (but no Wine upon earth) and as the entertaining the Jews Law includes Circumciſion, Paſsover, Pentecoſt, the Sabbath too, and even Decimals. And ſo have been the proceedings with us, That Court, and thoſe diſcuſſions have uſed to bring in Tythes effectually, and not but ever; Ask either the Lawyers or Owners, they who did judge or were judged, They both found the tranſpoſition of Wealth and Riches to be accordingly: Prohibitions if they were often granted, were ſeldom asked, and always denied, but if according to theſe Rlues: The Judge was Lex loquens, the ſpeaking Oracle, and nor did, nor would oppoſe, or ſpeak or do otherwiſe: & to their coſt always men found it to be moſt true. In the Manuſcript before mentioned, with Magna Charta, and the other old Statutes, are alſo the Writ of Indicavit, and many other ſuch Prohibitions grounded upon the ſame Reaſons that are alleadged in the Regiſter, and leading to the ſame end, ſc. of with-drawing Lay-inquiries from the Court Chriſtian, the ſubject matter whereof is moſtly Tythes, which ſhews they permitted in other Caſes the Triall to go, where it would, and certainly did carry them. In the uſuall Regiſters are inhibitions enough compoſed ſo, that none of them will vary any thing; they are1Et dicitur ideò Breve quia rem de qua agitur, & intentionem pe…entis paucis verbis breviter enarrat. Bract. de Action ca. 12. Sect. 2. Briefs, and give the Brief of the thing in triall: In the Book of Entries The Declaration ſets forth great Complaints for ſuing in the Court Chriſtian for tythes of Oakes under the Title of Sylva caedua to the diſturbance of the King, &c. but meddles no further, fol 226. & f. 489. Reſtraints there are enough for ſuing for2Fol. 483. Annuities becauſe they were De catallis & debitis quae non ſunt de testamento vel matrimonio, &c. in laeſionem coronae & dignitatis noſtrae: but Tythes are ſpared, not a word of them. So far 3Fol. 488.Debts, alleadging this reaſon, and under this danger, Machinans nos & coronam nostram exhaeredare, & cognitionem quae ad curiam noſtram pertinet ad aliud examen in curia Chriſtianitatis trahere: ſo for defamation, ſo for demanding Tythes of Lands diſcharged. But not elſe: ſo for recovery of Tythes4Fol. 489. ſet out, and become Lay Chattels, yet ſo as in All ſtill, no pretence was to impede the Juriſdiction of known due Tythes; but if the Court were extravagant, and would meddle with what was Lay, then clog it with a prohibition that it might not exceed its bounds; otherwiſe let it go on and proceed freely and fully without any manner of diſturbance. And this I ſay, hath been the known way of proceeding; view their Books, ask the Lawyers themſelves, they will allow (though they may finde ſome fault in my expreſſion) the reality of things, and that what I aim at is right, though I may faulter in the way of expreſſion: Nor is any thing more certain then the Reſtraint of their Reſtraints, the Prohibiting of their Prohibitions, that they ſhould not ſtep forth to hinder the Court Spiritual in that was ſuch, or belonged thereto, the certain Conſequent whereof was a known Recovery, and tranſlation of one fliece, ſheaf, lamb, or thing whatſoever of ten, from one man to another. This was a little extravagant, but I providently forecaſt, and conditioned not to be tyed too ſtrictly to Rules of Method though of mine own making: Too much exactneſs may be as incommodious, as altogether looſe: This belongs to what I was upon, the Juriſdiction of Tythes, and thereby right: and to the reflections of the Temporal State, as it ſtood ſeparate, and favouring glances (of which ſort onelyonly is all in this Cell we may properly look for) and theſe, though not alleadging one quarter of that is, ſeem to make good what was undertaken abundantly.