The Civil Right of Tithes, Ecclesiastical tract · Chapter 8 – Chapter 10
CHAP. X.
ONe thing more is obſervable, that although Kenulph King of Weſt-Saxon-rie were preſent at the firſt delivery of the Letters, we hear no more of him afterwards, the approbations and ſubſcriptions having onelyonly the countenance of the more Northern parts; for Tythes may not yet have been generally ſetled, ſave in Kent, by Ethelbert; and Mercia and Northwards, as but now; which yet was after done ere long, and namely by that Celebris donatio Ethelwlphi, ſo much ſpoken of. This clapped the ſevere and abſolute injunction upon all the Kingdom, (having power ſo to do, as the other had not) infolding every part that was under his power, (and all was) under the ſame conſtraint, ſo that now to Tythe was as generall as to reap, and by a Catholick command from ſea to ſea, and from the flood to this worlds end, Gods Miniſters had now an appointed and ſetled livelihood whereſoever man had.
For the better underſtanding whereof, this of ſtory would be taken in by the way: That1Cognoſcendum igitureſt, quòd eodem hic titulo utitur Ethelwulphus Rex, quo Egbertus pater ſuus bellicoſiſſimmus acquievit, cum univerſam Heptarchiā ſuae ſubjugaſſet ditioni: and how, Vid. Spelm. Concil. pag. 351, 352. Speed. Cbron. lib. 7. chap. 31. Polyd Virgil. li 5. pag 89, 90. Egbert, this King Ethelwlphs father had gathered together (no longer before) the diſperſed pieces of petty-Royalties here, into one greater Monarchy, and bruiſing and battering the Coronets of ſeven (at the remainder of ſeven) leſſer Kings, had caſt them all into one greater Crown, moulded for his own head, and left the power to this his ſon, under the Title of Monarch of the Nation, or King of England. A fit time to do any great work, and make or perfect ſuch a change, as ſhould be Catholick and uniform; not now, This and That, but one and the ſame throughout the Nation. Before him, it was King, (or Kings) of Britain till the Caeſars came: Then, Aulus Plancius, Oſtorius, or others, Lieutenants of Britain: after, the fell Saxons gave denomination to their ſeverall ſhares of a conquered Heptarchy and we had South, Eaſt and Weſt-Saxons, beſides Kent, Eaſt-Angles, Mercia, and Northumberland: But this Egbert maſtered All, brake 2Stow. Chron. in the life of this Egbricht, pag 99. & Speed. ubi ſ…pr. ſect. 6.the image of Cadwaline laſt King but one of the Britains triumphantly placed over Ludgate, cruſhed the power, and obliterated the partiall names of his own Countrymen, and made all ſtoop to his ſole Command, under the new name of The Kingdom of England, (whereof he was ſole Monarch) which ever ſince through ages hath to this preſent remained.
Theſe things prepared, as was ſaid, for the uniformity of any work to have its extent and operation upon All, and being remembred, makes way for that Donation, which heed, is Hire given under that name: Other before may have had the ſubſtance, but they had not the proper term, this both name and thing, under the title of, Celebris illa Donatio Ethelwlphi. Which what it was, take information firſt from him that had a great hand in preſerving the Common-law from the ſpoiles at the Conqueſt, and lived neer thoſe times, Ingulphus.
The moſt noble King of the Weſt-Saxons (ſaith he) Ethelwalph, Inclytus Rex Weſtſaxonum Ethelwulphus, cum de Roma ut limina Apoſtolorum Petri & Pauli, ac ſanctiſſimum ipſum Leonem multa devotione, una cum juniore filio ſuo Alfredo peregrè viſitaverat, noviter revertiſſet, omnium praelatorum ac principium ſuorum, qui ſub ipſo variis provinciis totius Angliae praeerant, gratuito conſenſu, tunc primo cum decimis omnium terrarum, ac bonorum aliorum ſive catallorum univerſam dotaverat Eccleſiam Anglicanam per ſuum Regium Chirographum confectum inde in hunc modum.when he had returned from Rome viſiting, with his ſon Alfred, the habitations of Peter and Paul, &c. by the willing aſſent of all his Prelates and chiefes, that under him were over all the Provinces of England, had then firſt indowed All the Engliſh-Church (for ſome peices had been before, but there wanted a Soveraing power, or the union of the parts to extend this good work over All) with the Tythes of All lands (mark the extent again) and other goods or cattles,Regnante domino noſtro in perpetuum, dum in noſtris temporibus, per bellorum incendia, & direptiones opum noſtrarum, nee non & vaſtantium crudeliſſimas hoſtium depraedationes, barbararum paganarumque nationum multiplices tribulationes ad affligendum nos pro peccatis noſtris uſque ad internecionem, tempora cernimus incumbere periculoſa. which he did by his Royal Patent, thus:
Our Lord Chriſt raigning, but we toſſed up and down &c. wherefore I Ethelwlph King of the Weſt-Saxons with the advice of my Biſhops and Princes,Quamobrem ego Ethelvulphus Rex Weſtſaxonum cum conſilio Epiſcoporum ac principum meorum conſilium ſalubre ac uniforme remedium affirmantes, conſenſimus, ut aliquam portionem terrarum haereditariam, antea poſſidentibus omnibus gradibus, ſive famulis & famulabus Dei Deo ſervientibus, ſive laicis miſeris ſemper decimam manſionem, ubi minimum ſit, tum decimam partem omnium bonorum in libertatem perpetuam donari ſanctae Eccleſiae dijudicavi, ut ſit tuta & munita ab omnibus ſecularibus ſervitutibus, imo regalibus tributis majoribus & minoribus, ſive taxationibus quae nos dicimus Winterden, ſitque libera omnium rerum, pro remiſsione animarum, & peccatorum noſtrorum ad ſerviendum Deo ſoli, ſine expeditione & pontis extructione, & arcis munitione, ut eo diligentius pro nobis ad Deum ſine ceſſatione preces fundant, quo eorum ſervitutem in aliqua parte levigamus. Ingulph. reſolving on ſome wholſome remedy, have agreed that ſome portion of my lands formerly inheritable by whoſoever, ſhould now as to the tenth of the whole be ſet aſide (for th…s I conceive to be the ſence, the words ſcarce affoording any, but by comparing other accounts, this ſeems the thing meant) for the ſervants of God, and a like tenth part of my goods for the Church; ſo free that it yeeld no ſecular ſervice, nor tribute (more nor leſs) nor Winterdene (or Witterdene, a kind of impoſition) but that it be devoted to Gods ſervice alone, that the poſſeſſors may pray ſo much the more diligently for us, as they have fewer occaſions to diſturb them. This was done at Wincheſter in S. Peter's-Church, Anno Dom. 855. preſent and ſubſcribing all the Arch-Biſhops, and Biſhops of England, and Beorred King of Mercland, Edmund King of the Eaſt-Angles, and a numberleſs number of Abbats, Abbeſſes, Dukes, Earls, and Chiefs of the Land, and other approving beleevers: And the1Rex verò Ethelvulphus pro firmitate ampliore obtulit hanc chartulam ſcriptam ſuper Altare ſancti Petri Apoſtoli: & Epiſcopi pro fide Dei illam acceperunt, & per omnes Eccleſias poſteà tranſmiſerunt in ſuis parochiis publicandā. Ingulph. ubi ſup. ſect. 6. Charter was offred upon the Altar, and there received for more religious confirmation. This I take to be the ſence of what was there done:2Ad anno. 855. Matthew Weſtminſter, 3Geſt. Reg. Ang. lib. 2. cap. 2.William Malmeſbury, Ethelward, and others give ſeveral accounts, but tending this way, and ſo great conſent is in ſubſtance, though variation in expreſſion, that no one can doubt ſome ſuch thing was done, men ſo much varying yet agreeing to report. No one undertakes to make good all of every thing he makes uſe of, and here was interſperſion of Abbots and Abeſſes, offering at the altar, with Saints and Angels intereſſed and the Virgine Mary: but ſuch commixtures do, we know, no more invalid the ſtrength is adjoyning good and ſound, then the like in Magna Charta, or the moſt of all ancient Parliaments, or ſome diſperſed ſpots in the Common Law. He that ſhall once give his buſie humor leave to work, and queſtion things ſufficiently done by ſome infirming circumſtances, will ſoon leave little enough of approved firmneſs (by the ſame ſtrict rule of eſtimation) anywhere, no not of thoſe foundations whereon are raiſed and ſtands the ſtability of the chief worldly things we here injoy. This is ſure, the grant was made, and let the injoyed benefit ſpeake the fruit to our time, the providing for a helpleſs Church, and it ſhould ſeem ſo firm it needed not be again, nor was after; for 'tis obſerveable the ſtile henceforth changed, and men do now no more Grant, but Confirm; nor had they need Part with ſo much as Aſſure, nor voluntarily Give, but yeeld to Pay.
Which we ſhall obſerve as we go along: In the mean while as to the doubtful words, various hath been the conſtruction, and learned reviſors have not all found the ſame thing in them.
1Chronic. in the life of K. Ethelwolph, pa. 99.Jo. Stow takes it to be a parcel of land:2Animadverſions on M. Seldens Hiſtory of Tythes. cap 8. pag. 173. Doctor Tildeſley contends for it by ſix reaſons: Sir Henry 3Concil. Britan. tom. 1. pag 352.Spelman (inclining thitherward) knows not where to finde the benefit ſave in the parſonage houſe and glebe (though it may be well enough thought how they came in afterward, and otherwayes.) 4In his Hiſtory of England, in the life of this King.R. Hollingſhead ſlubbers it over with a right or liberty (from burdens) to tythes, (ſo5He ordained that Tythes and Lands due to holy Church, ſhould be free from all Tributes and regall ſervices. Speed hiſt. lib. 7. cap. 32. ſect. 6. tythes Then in his acknowledgement were.)6Martyrolog. lib. 3. pa. 136. ad an. 844 in the life of Ethelwlph. Mr. Foxe ſomewhat faintly; the tythe of the Kings lands and goods in Weſt-Saxon-rick: (with freedom from Servage.) But a7Ier. Stephens in pag. 132. of Sir Henry Spelman of Tythes. late ſetter forth of a very learned and pious tract of this argument alledgeth it for a perpetual right of tythes: and above All,8Mr Selden in his Hiſt. of Tythe, cap 8. pag. 206. he that had compared moſt accounts and was as well able to judge as any; and now after neer thirty yeers of painful and ſuccesful ſtudy is yet living, and ready no doubt to make good his conſtancy, and juſtifie his opinion, then publiſhed, and not appearing yet revoked, makes it out clearly for a right and law of tythes: His words are theſe.
If we well conſider the words of the chiefeſt of thoſe ancients, that is, Ingulphus, we may conjecture that the purpoſe of the Charter was to make a general grant of tyths payable freely, and diſcharged from all kinde of exactions uſed in that time, according as the Monk of Malmesbury, and John Pike in his ſubplement of the Hiſtory of England expreſs it. Decimam (ſay they) omnium hidarum infra regnum ſuum a tributis et exactionibus Regis liberam Deo donavit: that is, granted the tythe of the profits of all lands, free from all exactions. For the granting of the tenth part of the Hides or Plowlands, denotes the tenth of all profits growing in them as well as Decima acra ſicut aratrum peragrabit, which is uſed for the tything of the profits, in the Laws of King Edgar, Ethelred, &c. and doubtleſs Ingulphus no otherwiſe underſtood it then of perpetual right of tythes given to the Church, where he remembers it with tunc primo cum decimis, &c. So that the tythe of prediall or mixt profits was given, it ſeems, perpetually by the King with conſent of his States both Secular and Eccleſiaſtick, and the tyth of every mans perſonal poſſeſſions were at that time alſo expreſly included in the guift, becauſe (it ſeems) before that, (hitherto that learned man) the payment of all tythes had commonly been omitted. Not ſo neither; for what was then the operation of thoſe weak, and yet intended ſtrong and powerful Canons before mentioned, made with ſo good advice, and ſtrengthened with the twiſted powers of both States in Mercia and Northumberland, beſides what in Kent, a Rege, Baronibus & Populo? But for All the land, it ſeems none before had power of impoſition; and for Weſt-Saxony none had attempted; (for the King that was preſent at opening of the letters, we found not there at the concluſion of the buſineſſe 1Pag. 70.before:) So that Tunc primùm for this and for All together, the decree might go forth here ſucceſſefully, and the liker it did, for that (as before) we read of no more Donation, but Confirmation, no need to Settle after, but order, as was ſaid, to Pay.
So that conſidering the power was then veſted in the Monarch-granter, and alſo the conſent of Tributary, and, as it were, pupil-Kings, with Nobles, Peers, and all their people: Conſider likewiſe the interpretation of dark words by thoſe whoſe inſpection was like to pierce deepeſt into the meaning of what was delivered (or is perplexed) with obſcure expreſſion, And after interpretation fairly ſetting of ſuch a purpoſe, we need not doubt to conclude: That ſo long agoe as thoſe remote times, about 800 years ſince, above 200 before the Conqueſt, even then when the Common Law was but in her ſwadling-clothes, whereof little hitherto, (if ſhe were then born, as I beleeve ſhe was,) Even then, and as ſoon and faſt as we may believe the power of Chriſtian Religion to have had its work in the boſome of beleevers to make them contrive a continuall and ſetled ſupport for their ſoul-ſaving new-come Goſpel, Tythes had a publick vote, which created a legall Right; And, though I will not ſay All was done accordingly, and the objection of after Arbitrary conſecrations poſſible in ſome ſenſe, may take place in their way notwithſtanding; yet as farre as Law may create a right, Then were Tythes no longer a part of Benevolence and Bounty, but of diſtributive or retributive Juſtice, every one living within the compaſſe of the Church being bound to pay back this ſupport for the Miniſtery thereof, in fulfilling thoſe generall Canons of the New-Teſtament, that call for maintenance, and would not have the labourer uncertain of his reward, but the Oxes mouth unmuzzled (to take thus much) and the Catechiſt to partake with the Catechumene in all his goods.
For we are not to look upon Regall and Legall commands; as empty Cracks, fit onelyonly to fill the world with noiſe and clamour, and exerciſe the chat of the buſie multitude, or learned mens diſcourſes, but Canons well mounted, which being diſcreetly levelled alſo, are able to make their way through whole ſquadrons of oppoſing Rebels to Law and Juſtice, of that irreſiſtible power, that though private men would, they cannot contradict, evade, or gainſay; As being thoſe words of publick vote and higheſt authority, that if they ſay, Yes, will have no Nay, The moſt ſerious diſputes and reſults of Reaſon that are extant amongſt men, and that have this ſoveraign property always annexed to them, That they of all other look not to be Diſputed but Obeyed. Lex eſt ſententia, qua bona tum praecipiuntur, tum mala prohibentur, (ſayes Jo. Lexie Iuriſprud. pa. 526. in vocab, Lex.Calvin) Jus eſt authoritas ſeu facultas agendi ſecundum legem. Juſtitia eſt virtus perducens iſta ad exercitationem. Proinde quoties audis has voces, Lex, Jus, Juſtitia, ſtatim cogita, monente Oldenb. te divinum aliquid atque excelſum audire, hoc eſt, veram & à Deo ipſo dictatam honeſtatis formulam. Almoſt the voice of God, and not of man, as if they were.
Neither is one thing more to be omitted, who was preſent and aſſiſtant at this great work, Him I take the world to have ſince owned and remembred by the reverencing name of1Vid Spelm. Concil. …om Eod. pa. 349. St Swithune: formerly the Kings Chriſtian Tutour, now his Chaplain, Biſhop of Wincheſter, and2For the King was committed firſt to the Care of Helmeſtan Biſhop of Wincheſter, and by him conſigned over to Swithune: Heimeſtan dying, he was made a Deacon, and elect, if not Conſecrate Biſhop of Wincheſter, and thence reſumed to the Crown. Speed Hiſt. lib. 7. cap. 32. ſect. 1. —ſubdiaconatus ordine initiatus. Polyd Virg. Hiſt. lib 5. pa 91. Vid▪ Stow. Chron▪ ad an. 829. & Hen. Huntingdon. lib. 5. pag. 348. ſucceſſor of the King himſelf in that See, bleſſed by God to keep the Kings heart, and the ſtate of the Re-publick firm to Chriſt in that tottering age, when it was hard to keep all from reclining and relapſing to flat Idolatry. For they had lately worſhipped ſtocks and ſtones, and given the immediate iſſues of their ſoules in their thanks, praiſe, and All devotions to the works of their own hands,3The names of ſundry Idols here worſhipped before the Goſpel enlightened: And as the Pagan Romans made theirs praeſide over the daves of the week, whence Dies Solis, Dies Luna, Mercurit, Martis, &c. So here they called the dayes from them, if not more, and we yet retain the memoriall thereof in Sunday, Moonday, Tuiſco…day, (or Tueſday) Wodenſday, Thorſday, Freaday, & Seaterday. More appearance of truly evil, then in ſome other things in jealouſie branded for Idolatrous: See Verſtegan. Antiq. pag. 10, 11. & pa 68, 69, &c. Tuiſco, Woden, Thor, Frea, Seater, 4Herthus,) Suevorum, & Borealium Germanorum Dea, perinde & corum Anglorum qui cum Saxonibus Britanniam noſtram applicantes, nomen noſtratibus reliquerunt. Cultum & immanitatem Deae refert Tacitus, in Mor. Germ. Rendigni deinde, & Aviones, & Angli, & Varint,—in commune Hertum id eſt, Terram matrem colunt, camque intervenire rebus hominum, invehi populis arbitrantur: Stoneheng in Wiliſhire thought to have been a Temple to this Goddeſſe, in plain Engliſh, The Earth: Vid. Spelm. Gloſſ. pa 350 in Herthus.Herthus, Flint, 5Verſtegan. pa 79, 80Ermenſewl, 6The Goddeſſe of Hunters and Falconers, worſhipped at Rihall in the edge of Rutlandſhire, near Stanford: vid. Ca…den. Britan. in Rutlandſhire. Another place of note for like worſhip whereto was God …anham (in Bede's time Godmundingham) near Beverley in Yorkſhire, by the prieſt thereof Coyefi profaued and delivered over to Chriſtian worſhip: id. pag 702 S. Pauls in London was dedicate to Diana; (ſome Houſes adjoyning are called Dianaes Chambers yet.) The Church of Weſtminſter to Apollo. id. in Middleſex. God bleſſe u… I ſhal we ever live to fear the return of theſe Baniſhed and forgotten Idols to their native homes? Or the removall of what faſt kept them out (being baniſhed,) give cauſe of that Fear!Tibba, 7Or Oſter: a Goddeſſe giving denomination to the Month of April, called by the Saxons, Oſter monat: we yet retain the name of Eaſter thence, hapning uſually in that month.Eoſter, and ſuch other ſometimes worſhipped for Gods and Goddeſſes here, whoſe names are now either almoſt happily forgotten, or if remembred, not very eaſie to be underſtood. But it ſeems the Holy Chriſtian Swithune joyned in with his formerly pupill, now Lord and King to keep him cloſe, (& in him vertually and potentially All,) to the heavenly teaching of the Bible; and that the doctrine thereof might continue, they added this pillar of worldly maintenance (the having a hand wherein might procure Swithune ſo reverend an eſtimation in Chriſtians memories ever ſince,) (according to the patern in the mount, their guide, Levi of the Old Teſtament,) To ſuſtain and provide for the Preachers and Miniſters thereof: And God ſo bleſſed, that as that gift has remained ſacred and inviolable hitherto, ſo by it the miniſtration and Miniſters of ſacred Chriſtian Myſteries have had a ſubſiſtence ever ſince, and endowed preachers been as ſo many Candleſticks then ſet up, which reſting on this pillar, have held forth that light of heaven which yet we enjoy to this preſent day. Future ſuperſtitions may have made unneceſſary additions, and the honour juſtly given to the memory of this good man, for a work ſo gloriouſly deſerving, in the name and reputation of a Chriſtian Saint, have contracted after ruſt and blemiſh by the zealous ignorance of times and men; who not content ſave to overdoe, nor eſteeming reverence any thing without worſhip and adoration, thought the Saint not enough, unleſſe he were advanced higher to the name and reputation of a Divus, or petty-God, and ſo partaking now in nearneſſe of kinde as well as name with his Soveraign, muſt not wait any longer about the footſteps of the Throne, but be lifted up to ſit higher on ſome lower ſeats of honour with his maker; which caſt a blemiſh on the very Purity of heaven, and as one ſaid, made the Chriſtian world begin to be aſhamed of nothing more then of her Saints, which were indeed the honour and glory of the world.
But howſoever the work was gracious and glorious, of wonderfull influence to the piety of all following times, ſuch as may ſpeak it ſelf acceſſory to much of the practiſed publick Worſhip that hath been exerciſed ever ſince to Chriſt his honour, in our land, and hardly to be parallelled by any act of equal dimenſions, ſave perhaps the contrary work of darkneſſe, (if mens covetouſneſſe ſhould be ſo far hearkened to,) in with-drawing this ſupport in order and preparation to the deſtruction of Religion it ſelf, and bringing Apoſtaſie to that we had before Tythes were paid, Tuiſco, Woden, Thor, Frea, &c. or if theſe be forgot, taking up that is nearer hand and known, the ſenſuall dreams of Mahomet, (though ſuch1Which they may have from the Moſaical law, Selden. Hiſt. of Tythes c. 3 ſect ult. Ioan. Baptista Alfaqui who had been a Mahometan prieſt, ſayes, 'tis one of the …reat ſins whereof the two inquiſitour Angels examine ſouls after death, Whether they have paid Tythes duly? [Paget. Haereſiogr. in the Poſtſcript. The dreadfull manner is ſet forth by M. P…rchaſ. lib 3. cap. 12. p. 304. Edit. 1614 worſhippers pay their Tythes duly,) or indeed no one can foreſee probably what. And if theſe be not the dreames of ſome troubled minde, but the ſober and welladviſed thoughts of one jealous for the honour of His God, not the melancholick muſes of ſome diſtempered fancy, but the calm and well-compoſed ſerious conſultations of one tenderly carefull, and tremblingly fearfull about the honour of his beleeved Saviour and Redeemer, prudently caſting what may be, yet providently fore-caſting it may not be, and yet but reaſonably doubting too what is like to be; grounded onelyonly on rationall conjectures, and accompanied with manly feares, leſt Chriſt his name ſhould be wiped off from the earth, His honour diſparaged, His worſhip undermined, His faith deſtroyed, and Himſelf forgotten where he hath been worſhipped for a God; It would then be thought on again and again by all thoſe who pretending to worſhip Chriſt can think of undoing his Miniſters, and in (or with) love of the Maſter, give themſelves leave to doubt whether they may ſtrip of their Own his Servants that doe his Publick work, leaving Religion as naked as in the day ſhe was born here, to be covered by meer Charity of the Pariſh, or provided for by ſome ſlack and ſlender weekly allowance: And (then which cannot come a worſe miſchief) intruſting the Religion of the moſt High God, and its ſtability, to the tottering contributions of fickle Men, who if they be of one minde to day, may be of another to morrow; what now they love, then loathing; and always eſteeming their wealth dearly, cannot but be continually loth to part with what they love: (which if it ſhould be,Joſh. 7. 9. O Jeſu, (As Joſhuah fometime threw up complaint to heaven upon a pang of zeal, in like danger,) What ſhall be then done to thy Great Name!) But ere this be, more ſtones muſt be ſtirred, 'tis like, then we are aware of, or are yet thought on for motion: intwiſted eſtates doe not uſe to decay ſingle; nor that ſink alone of it ſelf, that ſettles on the ſame floor or bottom with others: The ſtrength of property it ſelf muſt grow weak, ere theſe dues can be ſhaken, and the owner of the nine parts be left little enough by the Same reaſon, (unleſſe by arbitrary diſpoſition, becauſe 'tis fit he ſhould have it,) before This Tenth ſetled with them, and by equal ſtrength of right can be taken away. Think of ranſacking the Tenth rafter out of the roof, or the Tenth ſtone out of the foundation, and then compare and Judg. But think withall, that rafter, that ſtone was there placed in Swithunes dayes.
CHAP. XI.
WE have done with Donation; A thing can be given but once, and this hath been here all over; now next, as annexed thereto or a part thereof ſhould follow, Tradition, without which the1Item non valet Donatio niſi ſubſequatur Tradtio, quia non transfertur per homagium res data, nec per chartam vel inſtrumentorum confectionem, quamvis in publico fuerint recitata. Bracton. de aquir. rerum dom cap. 18 ſect. 1. Lawyers ſay Donation is invalid, foraſmuch as this in act2Videndum eſt primò quid ſit Traditio: Et eſt Traditio de re corporali propria vel aliena, de perſona in perſonam, de manu propria vel aliena, (ſicut procuratoris, dum tamen de voluntate Domini,) in alterius manum gratuita tranſlatio. Et n…hil aliud eſt Traditio in uno ſenſu, niſi in poſſeſſionem inductio. id. ibid Sect. 2. vid Flet. lib. 3. cap 15. Sect. 4. parts with the thing, and till it be, even a guift remaines with the Giver: but the expectation hereof may well be ſuperſeded here, foraſmuch as the right of tythes is a Right, and ſo not capable of delivery: For it is a Right, and not3De re corporali ideò dicitur, qùod res in corporalis non patitur traditionem, ſicut ipſum jus, quod rei ſive corporl inhaeret: et quia non poſſunt res incorporales poſſideri, ſed quaſi, ideo traditionem non patiuntur ſed quaſi, nec adquiruntur nec retinentur niſi per patie…tiam et uſum. Bract. ubi ſupra fol. 39. Iura ſiquidem, cum ſint in corporalia, videri non poterunt, nec tangi, et ideò traditionem non patiuntur, ſicut res corporales. id. cap 23. Sect. 1. fol. 52 Item acquiruntur nobis temporalia (corporalia I beleeve, it ſhould be,) per traditionem: res enim corporales patiuntur traditionem: ſecus verò de incorporalibus, ut ſunt jura, advocationes eccleſiarum, &c F…et. lib. 3. cap. 2. Sect. fin. a body, which can nor give, nor take; and the rules of the law muſt not think to alter the nature of things, or make that required, which to be cannot.
Tradition is here therefore ſet aſide, in other caſes neceſſary, and this Guift being perfect without it, our next muſt be of Ratihabition or Confirmation, under which head march all the following allegations to our times, to4Confirmare eſt enim id quod ptius infirmum fuit ſimul firmare. id. lib. Eod. cap. 14 ſect 5. ſtrengthen the frame that is now built, and inforce from time to time to part with and give out what was here ſet aſide and appointed to be given; What thoſe acts in law are ſhall not praeviouſly take up much inquiry from5Vid. F. Ratam rem haberi, & de ratihabi…ione: lib. 46 tit, 8. Juſtinian or6Vid Cook Inſt. 1. on Littleton. ſect. 515. fol. 295. Weſtminſter, I content my ſelf with their7Generaliter effectus ratihabitionis eſt, ut voluntatem noſtram declaremus, & negotium, quod alioqui ad nos nihil pertineret, noſtrum faciamus, Cahl. Lex…c. Iuriſpr…d. pa. 789. general nature, to ſettle what has been8Ratihabitio eſt conſenſus, qui negotium perfectum inſequitur: Id. ib. Rati enim habitio ad confirmationem prioris poſtulati pertinet: F. de bonorum poſseſſeonibus: l. Quotiens. placed; Rem ratam ha…beri, that that which is, they do, as the9Videndum eſt igitur quid ſit Confirmatio: & eſt confirmatio prioris juris & dominii adepti firmatio, cum prima firmitate donationis; nihil enim novi attribuit, ſed jus ve…us conſolidat & confirmat: Bracton. lib. 2. cap. 25. ſict. 2. fol. 58. word is, Confirme.
Men, no doubt, were loth to part with their own, to weaken their worldly eſtates, though it were to ſtabliſh the Religion of the moſt high God, to make them baggs which as our Saviour1Luke 12. 33. ſays wax not old, to2Matth. 6. 20. Cap. 19. 21. lay up treaſure in Heaven (31 Tim. 6. 19. foreign,) for another world, and to make 4Luke 10 6. Sermone etiam admonemur divino, terrenis coeleſtia, & caducis his noſtris aeterna illa promereri: Aethelſt. in prafat. ad leg. ſpeaking of Tythes.friends of this Mammon of unrighteouſneſs, that when need is, they may receive into everlaſting habitations: This made the lawes frequent, the repetitions many, the reinforcement earneſt, the tranſgreſſion poenal, and each continued in and through every age; that ſo, if might be, Ananias might be met with at every turn, and his wife Sapphira kept back that neither ſhould venture again to pluck back what onelyonly true piety and the love and fear of God had prompted them at firſt to give forth. And now behold the laws are not to pay, but be puniſhed if men paid not.
CHAP. XII.
THe firſt that occurs, (in time and ſo in our order) is that of K. Alfred and is in the preface to his laws, (remember we are now in the dawning of the common-law, and this allowance ſhall grow up with it,) which, before, he out of modeſty acknowledged to borrow from the tables of his Anceſtors; and ſpeakes in brief, thus:1Pra…fat. in leges Alfred. c 38. Lamb. Arch p. 19. Spelman. Concil. tom. 1. pa 360. Thy tything portion, or thy tythes give thou to God. If any did not, it was after agreed between2Vid. Leg. Eccl. ab Alured & G…thurno ib. pag. 377. cap. 9. him and Guthrun the Dane, that the ſtranger ſhould pay lahſlite, that is, as 'tis commonly interpreted, twelve Ores, and the Engliſh his forfeiture, and with out this, no peace: which League and Law was after confirmed by3Haec ea ſunt ſenatuſconſultaac inſtituta, qu…e primò Alfredus & Guthrunus reges, deinde Edovardus & Guthrunus reges, illis ipſis temporibus tulere. cum pacis foedus Daci & Angli ferie, runt, ac ſeſe mutuo amplexi ſunt, (a part of the ſoder that combined them together was a law of Tythes, which they agreed both ſhould pay-) quaeque poſtea à ſapienti…us recitata ſaepius, atque ad communem regni utilitatem aucta, at que amplificata ſunt: vid. foedus Edovardi & Guthurni. apud Lamb. Arch. p. 41. et Spelm. Concil. p. 390. & 39…. K. Edward (Alfred's ſon) and the ſame Guthrun, and oftentimes after repeated and eſtabliſhed to the common profit of the Kingdom
K. Aethelſtane is after very earneſt about the year 930. by all that is ſacred 4Leg. Eccleſ. Aethelſta…i apud eund. p. 402. c. 1. Lambard. Archaion. p. 45. & Fox Acts and Monum, lib 3. p. 149.conjuring al under his Juriſdiction to pay all: tam vivorum animalium, quàm annuorum terrae proventuum decimas, both of Cattle and fruit: His Aldermen and Reves he commands to do the ſame, and ſeriouſly adviſes to conſider what Jacob vowed, my tythes and peace-offering will I offer unto thee, and what is elſewhere with ſeverity enough; If we will not give the tenth, the nine other parts may be taken away, and nothing left but the Tenth. Remember he was not a Church-man but a King, and ſo ſpake no doubt as ſeeing expediency enough of what he ſpake thus, and for his people.
Edmond his ſucceſſor followed him, and1Leg. Edmundi &c. Lamb Arch. pa. 57. cap. 2. Spe… man. Conc. adan. 944. pag. 420. cap. 2. in a frequent Synod held at London about the yeer 944. as well of Lay as Eccleſiaſtical perſons, (a Micelne Synod it was, a Parliament, no doubt) chargeth every Chriſten man to pay his tythes duly, and upon his Chriſtendom. I omitted an Eccleſiaſtical Conſtitution made by2Decimo capitulo mandamus, & fideliter obſecramus, de decimis dandis, ſicut in lege ſcriptum eſt: Decimam partem ex omnibus frugibus, &c. ib ad an. 943. p. 418. cap. 10. Odo Arch-biſhop of Canterbury about theſe times, becauſe it may be judged not binding; not doubting yet the common law, as then, to conſiſt of ſuch rules, (as they were after, of the Conſiſtory) as well as the ſecular: For if this were not, there ſhould have been no rule brought along with the Eccleſiaſtical Judge, for him to Judge by. 'Tis known how till the Conquerors days, when the Courts were parted, This Superviſor ſate in the County Court, (as over a Provincial Presbytery,) to Judge with the Kings Reve, or the Reve of the Shire, or Shire-Reve (ſince Sheriffe,) the one to ſee Gods right done, as the other to ſee the Worlds; and what could be more expedient then that they ſhould bring their ſeveral rules along with them, the Church-man his Canons to rule there in fitting things, as the other his ſecular lawes? So that till the juriſdictions were parted, I doubt not to think without haeſitation, this and ſuch Canons, The Canon in general, was a part of the Common-County law, and ſo uſed, and after digeſted into a form by it ſelf for the Conſiſtory; whereto adding the way of tryal, ſc. according to the Civil law, by citation, proctor, libel, &c. and ſuch after ſuperinducements, made the Court, as it was late found and left: But this by the way.