The Civil Right of Tithes, Ecclesiastical tract · Chapter 5
CHAP. VII.
WHat right then have Tythes? I anſwer briefly, Manifold. It often comes to paſſe it is ſo, and that one and the ſame thing hath many firm bottoms to ſettle on: Two feet for the more ſtrength, two ſtrings to the ſame bow, though one be enough, and four better then two; for a ſurpluſage of ſtrength does no way tend to weakneſs, nor an accumulation of titles mutually weaken or deſtroy: Now at leaſt three diſtinct Rights, and each ſtrong enough are here:
I. Of Donation.
II. Poſſeſſion.
III. Preſcription.
Tythes were
1. Given.
2. Are poſſeſſed.
3. May be preſcribed for.
Nothing they ſay is more free then gift; 'tis naturall, that what I have is mine own; 'tis ſtrong if a long time I have had it, and All theſe conſpire and meet to ſettle Tythes where they are. 1. One limb of everybody of the Law is, de Donationibus, and after many rules and cautions,I…em acquiritur nobis dominium jure civili ex cauſa donationis. the reſult is, an undoubted Right thereby. 2. What I have is mine own, it is ſo, I know it, and till the contrary be evinced, the world will judge on my behalf.Fleta lib. 3. cap. 2. ſect. 17. 3. Continuance of poſſeſſion (juſt or unjuſt) ſhall create a Right.Bracton. 2. 4. 1. Cowell Inſtitut. lib 2. tit. 7. ſect. 1. Hen. 8. He that once had title to the houſe I dwel in, let him come after a hundred yeer poſſeſſion (in my ſelf and anceſtors) I dare now joyn iſſue with him, it is Mine and not His, becauſe I have Kept it. Theſe things are known enough, and I aver they all meet here, that Tythes Were given, Are poſſeſſed, and Long enough to create preſcription; A threefold cord is not eaſily broken, and here is that complication of 1. Donation ſufficient. 2. Poſſeſſion undoubted. 3. And Preſcription for time over and over. To which adde, that each of theſe pillars hath alſo another ſtrong ſtay by, to ſupport the weight laid on it: Donation is bettered by Confirmation: Poſſeſſion ſecured by him in whoſe right the poſſeſſion is; Dedimus Deo was the form of grant, and is the ground ſo claim: Preſcription is lengthened through more then half twenty times over ſo much as would ſimply ſerve the turn: And if theſe things be ſo, and they are, and all, and known, by the Law, be this ſuppoſed, and me thinks we may ſing victoria almoſt already.
But they remain to be proved; by Gods bleſſing they ſhall: There is neither of them but lies clear in view to thoſe are acquainted in thoſe regions of knowledge (whether of Books or Experience) where a likely information of any of them is to be looked for; and I ſhall yet add one thing more as a Coronis at top, the opinion of the Learned in their own profeſſion. One ſingle ſelf may have been deceived not inexcuſably; 'Tis hard for a ſtander by to be acquainted in all the rooms of a neighbors houſe; ſome ſparks of true light have ſometimes (by their not right uſe) but led private men to Errour; But as witneſſes produced go for proof uſually, and their agreement ſtrengthens their teſtimony, and a conſpiration of them profeſſing to know, is the faireſt of all preſumptions againſt miſtake.
If therefore the Lawyers themſelves have apprehended thus with me, if they have combined and conjoyned to ſay ſo, if there have bin that combination and conſent that they All have ſaid ſo, and till within theſe few years no One would have been Fee'd to the contrary; nor, if he underſtands himſelf, will yet: from All theſe I ſhall not doubt to inferr a ſtrength of preſumption, that what men have ſaid, the learned have ſaid, the Lawyers have ſaid, and All of them both have and doe, (no one to be hired to the contrary, whereas they come in gratis on the other part,) hath much more then likelihood that it may be true which they aver, and for their aſſertion ſake. From whence may we expect Credibility, if not from the voice of men, of All men, and they agreeing, and the Seers themſelves giving their vote? In ore duorum vel trium ſtabit omne verbum, ſays the Divine Law, 2 Cor. 13. 1. Num. 35. 30. Deut. 17. 6. cap. 19. 15. Mat. 18. 16. John 8. 17. Heb. 10. 28. How much more, In aſſenſu & conſenſu omnium & ſingulorum? That is a bad caſe which admits no plea, that no one will be hired to undertake, or can colour for, that neither hath ſubſtance nor ſhew. If therefore the grave and learned Judges (the Oracles of the Law) have gone this way, if the other reverend Sages (I comprehend all graduated profeſſors) take in along with them, if it be the painfull knowledg of the Student, the coſtly knowledg of the Country-man, the experienced knowledg of moſt men, the generall allowance of All men; Doubtleſs that muſt be ſo which one ſays, and another ſays, and a third ſays, and a fourth ſays, and every body ſays is ſo; and moſt likely when the profeſſing too, know, joyn in, and ſay ſo likewiſe.
We have made room enough, a large field to expatiate in: God be our guide, as Truth our aim, and ſucceſs but as the righteouſneſs of our Cauſe ſhall deſerve for us: The firſt part of the plea was Donation: Which, becauſe it is like to be large, the faſt Corner ſtone whereupon to ſettle the chiefeſt of what follows, ſomething would be ſaid what it is, who may give, what, to whom, &c. It may not be ſafe to go on of our own heads. Here therefore again for the help of the Sages,
Donation then (ſays1Eſt autem Donatio quaedam inſti…u…io quae ex mera l…eralitate, & voluntate, nullo jure cogente, procedit, ut rem transfer at ad alium. De acquir, rerum dom, cap. 2. ſect. 2. fol. 11. Bracton) is a certain Inſtitution that proceeds from meer bounty and will, no law forcing, to transferr a thing to another. Or, To give, (ſays2Dare autem eſt rem accipientis facere cum effectu. Flot. lib. 3. cap. 3. ſect 1. Fleta) is to make any thing his that receives it. But3Et eſt propriè don…tio alienatio rei quae liberalitatis cauſa fit, hac mente, ut nullo caſu recipiatur. Parotit-ad F. de donationibus. Cuiacius lately thinks he hath hit it better then both, making it Properly the free alienation of any thing, with this minde that it ſhall not revert to the Donor. The firſt of theſe may leave a rub in the way to hinder that we would by no means oppoſe in all this Tract, the free progreſs of that opinion, that Tythes are due Jure Divino: As if they be, how can we ſay they were Given in the ſenſe there, ex mera liberalitate, nullo jure cogente: Or if the4Donari videtur quod nullo jure cogente conceditur. F. de diverſis reg. II 82. Divine law did inforce, then how are they in this ſenſe clearly given? I anſwer, well enough; as well as a man may give that which God had ſaid before he ſhould give; or do that freely, which the ſcripture yet irreverſibly commands he ſhould do: Give an Alms to a poor man, ſays the Scripture: which man does of himſelf, (the rather for that command) freely, and yet the divine Law was inforce, and obeyed, to part with that a man was not bound to part with.
Give the ſeventh part of thy time, ſays the fourth Commandment; yet 'twas a voluntary1Quarto decimo ſtatuitur loco, ut Dominicus d es legitima veneratione à cunctis celebretur, ſit que Divino tantum cultui dedicatus;—Omiſſiſ que exterioribus negotiis, atque ſecularium conventibus, atque it…neribus: niſi inexcuſabilis quaelibet cauſa urgeat, religioſae converſationis ac benè vivendi normulam de ſacrae ſcripturae eloquiis ſubjectis famulis praedicando inſinuene. Sed & hoc quoque dece…nitur quod eo die ſive per alias feſtivitates majores, populus per Sacerdotes Dei ad eccleſiam ſaepiùs inv…tatus, ad audiendum verbum Dei conveniat, miſſarumque ſacramentis, ac doctrinae ſermonibus frequentiùs adſit. Concil. Cloveſ. an Chr. 747. cap. 14. apud D. S…elman, concil Britan. pag. 2…9 Die dominico nihil aliud agendum eſt, niſi Deo vacandum, in hymnis & pſalmis & canticis ſpiritalibus. Excerpt. Egbert. 104. circa an. Chr 750. th pag. 268. And for the forbearing of working, hunting, mercating, impleading, &c. are other fuller Laws: How the maſter ſhould be puniſhed, how the ſervant, &c. which by degrees brought off men from their accuſtomed common employments. vid. L. Inae Regni 3. circa ann 710. in Lambard. Archaion. pa 1. & Spel n Concil. p 183. Concil. Bergamſted. ad ann. 697. can. 10, 11, 12 ib. pag. 195. Excerp. Egbert. 36. pag. 262. Foedus Edvardi & Gutharin regum. cap. 7 & 9. apud Lambard. Arch. pag 43. agreeing with thoſe under the title of, Leges Eccleſ. ab Alured & Guth. R. L. latae cap 10, 11. apud Spelm. pag. 3…7. L Eccleſiaſt. Ae…helſtani R. circa an. 928. cap. 6. ib. pag. 400. Conſtit. Odonis circa ann 943. cap. 9. ib. pag 417. Leg. Eccleſ. Edgari R. ad an. 967. cap. 5. ib. pag. 445. & cap. 6. pag. 446. Canones dati ſub Edgar. cap. 19. ib. pag. 4…0. Concil. Aenham. circa ann. 1009. K. 30. L. Eccleſ. Canuti R. circa ann. 1032 cap. 14, 15 apud Lambard. pag. 103. L. Eccleſ. Canuti, cap 14 & Capitulare inverſi temporis & authoris: cap. 14. in Spelman. pag. 600. All which things and the re-inforcement of ſo many, do ſhew how hardly men were drawn off their own wayes: what need the Commandment of God hath of the abetting law of man that it may take place; and how clearly and fully that may be after given by man, which God appointed to be given: And this, 'tis like, a that alone, which gave the due Sabbath day to God here with us. Act of our State, that in obedience to that command, but freely in it ſelf, ſet aſide this part here with us; They might, or they might not, elſe they had not been free: but now, beſides the fourth Command: it is ſecondly due to humane Juſtice (appointing it,) to have the Sabbath ſanctified: So, Give the Lord the Tenth with a good eye, is interpreted to us the heavenly Oracle; yet when the believers came to obey, they did it freely, which they might not have done: Nullo jure cogente, that is, none of the ſame ſort, none on the ſame floor, no humane lower poſitive law having ſet aſide any thing, or commanded, though the higher Divine law had bound it to be more then expedient, which yet might not have been obeyed. The ſumme is, God may have ſaid, the Tenth ſhould be paid, Man have not obeyed; but he did, and gave by the perſwaſive influence of Divine command, that which was his own, and he was bound by no humane Law before to have given: and ſo here is a a commanded, obeyed, and yet free and voluntary Donation.
But, to go on, Donation, which was as before, is divided into1Donationum alia ſimplex & pura, ſc. quae nullo jure civili vel naturali cogente, nullo pretio, metu, vel vi interveniente, ex mera & gratuita liberalitate donantis, procedit: Item alia fit ob cauſam, vbi ſc. cauſa interponitur, ut aliquid fiat vel non fiat, &c. Et hoc genus donationis impropriè dicitur donat…o… Bract. lib. 2. cap. 5. ſect. 3. free, abſolute, illimited, and meerly voluntary, or ſub modo, under limitation or Condition, as, Do ut des, or Do ut faciat, &c. Now although this be in it ſelf more avoidable, as letting out into more ways of evaſion, yet if the thing conditioned be of evident neceſſity, as, I give that thou ſhouldſt preſerve this man from ſtarving, to do ſuch a thing neceſſary in publick, or for the ſervice of God, which is moſt neceſſary, or the like; Now in this caſe the neceſsity of performance mounts up with the needfulneſs of the thing depending, for it is more expedient that ſuch neceſſary things in themſelves ſhould not be left undone, then any ones ſimple, declared, ſingle will thrung in to take place, which yet in Juſtice ought, though in this neceſsity (comparatively) it ought not.
Further, who may give? and 'tis anſwered, All, that are under no prohibition: As, are2Dare autem non poterunt illi, qui generalem rerum ſua…ū non habent adminiſtrationem, ſicut ſunt minores, incarcera…, ſurdi & muti, & naturaliter furioſi, &c. Fleta. Iob. 3. cap. 3. ſect. 10. thoſe that have no power of themſelves, as Pupils, who are like to make their condition3Vid. Bract. de acquirend. rerum dom. fol. 12. worſe, (though they may contract to benefit, though not to loſs;) and for this reaſon the Church alſo, 4Vice autem minoris fungitur Eccleſia Dei: id. ib. & fo. 32. & Cook Inſtis. 1. fol 34 ſect. 644. Agreeing with the like favour of the Civill law.which is alwayes as a Minor: likewiſe the deaf and dumb, &c. nor the5Idem dicendum erit in rectoribus Eccleſiarum qui nihil poſſident niſi nomine Eccleſiae ſuae, unde nihil dare poſſunt, alienare vel permutare, niſi de conſenſu epiſcopi vel patroni, niſi inde melioretur conditio Eccleſiae: Si autem deterioretur non valet, quia ſit eis donatio ſecundario, ſicut maximè patet in ipſa dedicatione, & etiam poſt dedicationem, Do Deo & Eccleſiae tali, &c. Bracton, ubi ſupra. perſon of a Church, becauſe he is in poſſeſſion, but in right of his Church, and ſo hath nothing to give, for what he hath was given Deo & Eccleſiae, who are the proprietaries, he but the uſu-fructuary, and ſo cannot diſpoſe of anothers.
For, to whom;1Flet. lib. 3. c. 4. ſect. 1. pag. 179. Bracton. ubi ſupra. To any one: Bond or free, Minor, or of full age, Jew or Chriſtian, But not to a wife, not2Quibus dare inhibetur: Fleta lib. eod cap. 5. & Magn. Chart. c. 36. to the Church in Mort-maine, except by licenſe, (for every thing is to be kept within its due bounds; and a proportionable equality is like to be the Mother of longeſt duration: A monſtrous growth tends to the ſooner ruine, of it ſelf or the whole; and therefore in its favour it is provided, the Church may not ſpread too big, leſt pondere preſſa ſuo, it fall with its own unweildineſs.
Laſtly, What may be given? what is Corporall or in viſible, a poſſeſſion or a right, a whole or a part, but not what is3Nullius autem ſunt res ſacrae & religioſae & ſanctae. Quod enim divini juris eſt, id nullius in bonis eſt. Inſtit. 2. de rerum diviſione. ſect 7. F. …ib. 1. tit. 8. lib 2. ſect. ſacrae. Bracton. lib. 1. cap. 12. ſect. 8. Extra patrimonium verò res ſacrae & Communes: Fet. lib. 3. cap. 1. ſect. 3. no ones, as is every thing ſacred: This is ſuppoſed out of every ones reach; 'tis no bodies (on earth) and ſo none can lay4Item donari non poterit res quae poſſideri non poteſt, ſicut res ſacra vel religioſa vel quaſi qualis eſt res fiſci: Bracton fol. 14 hand of it to give it forth to another.