The civil right of tythes wherein, setting aside the higher plea of jus divinum from the equity of the Leviticall law, or that of nature for sacred services, and the certain apportioning of enough by the undoubted canon of the New Testament, the labourers of the Lords vineyard of the Church of England are estated in their quota pars of the tenth or tythe per legem terræ, by civil sanction or the law of the land ... / by C.E. ...

CHAP. XXVI.

AS to Personal Tythes then, (to lay the whole under one view,) two things very material are to be observed to have been laid down before in the bosom of the alledged Law: 1. That they were not now set up, but the Statute in making them payable sayes they shall be paid where for fourty years past they had been: (which if it had not been here averred, without any great difficultymight have been made good from the condition of things, But we take that is.) 2. There was not only an Usage but a Right: So are the words; All persons shall pay where for time past they have paid, or of Right they ought to pay. A Right then, and an Usage, a Title and a Possession are already secured. Thus from the Statute, and beyond the Statute; but we must go much higher to search how. And we may not seasonably urge the Patern of Abrahams spoils to Melchisedek, nor what I finde1 urged, Decimas & primi∣tias manuum tuarum; Deut. 12. And Bring ye All the Tythes into the Lords store-house, (not some but All,) Mal. 3. Or, which is most pertinent, Give the Lord his honour with a good eye,—and dedicate thy Tythes with gladness: Give unto the most high as he hath enriched thee (as 'twere howsoever,) Ecclus. 35. 8, 9, 10. Da secundum Donatum ejus, is the vulgar there: whence Alensis nimbly, Si ergo ex dono Dei possidentur omnia quae acquiruntur justo negotio vel arte, de illis decimae dandae erunt: If we must render of all God gives, and he give what ever we get, then of all we gain in what just way soever: nor yet may I insist upon Councels and Fathers, as Hierom, Chrysostome, Gregory, Ambrose, Augustine, &c. the latter of whom2 speaks out fully indeed, Quod si deci∣mas

non habeas fructuum terrenorum quod habet agricolas quodcunque te pascit ingenium Dei est, & inde decimas expe∣tit unde vivis: (good Reason and Divinity both;) De mili∣tia, de negotio, & de artificio, redde decimas; Aliud enim pro terra dependimus, Aliud pro usura vitae postulamus. If thou hast no Land, Render of that thou hast, of Gods guift what∣soever, is the short of it. But all these are without my pale. And so it may be is also that of the1 Decrees and Decre∣tals; and yet perhaps not neither, by reason of the last Provi∣so of 25 Hen. 8. 19. which speaks doubtfully, and whether all Canons before of force remain not yet so here, (that are not against the Temporal State,) as well as our Provincials, is at least from the words very dubitable. But our own binde strongest, like our English Oak which admits no compare; So nor for strength and certainty to us our English Constitu∣tions. Look then at first far back, and even so far as before the Conquerour, somewhat was thought on here tending this way. Some Canons I finde or Rules of good credit digested and left to us under the Title of Excerptiones Egberti, who lived about the year 750. (soon after the first faith of the Na∣tion,) and had it seems for his own use and others laid to∣gether sundry Rules which he judged most expedient to be followed; among which, (after for Tythes in general) for Per∣sonal. 2 Decimae igitur tributa sunt Ecclesiarum, (saith he) & egentium animarum. O homo, inde Dominus expetit deci∣mas unde vivis. De militia, de negotio, de artificio redde deci∣mas. Tythes are a Tribute due, Therefore pay of all thou livest by: of thy spoiles, of thy work, and of thy handicraft. Of about K. Knouts time were also some other3 affording reason again with command, and equity mixed with true pie∣ty. Admonendi sunt qui negotiis ac mercationibus rerum in∣vigilant, ut non plus terrena lucra quam vitam cupiant sem∣piternam. Merchants and Tradesmen are to be minded that they look not more after gain then godlinesse, their estates then their souls: and a little after, Sicut ab his qui labore agrorum, & caeteris laboribus victum atque vestimen∣tum quaerunt, & necessaria usibus humanis acquirere in∣hiantes instant, decimae & eleemosynae dandae sunt; ita his quo∣que

qui pro necessitatibus suis negotiis insistunt faciendum est. Ʋnicuique enim homini Deus aedit artem qua pascitur, & unusquisque de arte sua, de qua corporis necessaria subsidia ha∣bet, animae quoque quod magis necessarium est, subsidium ad∣ministrare debet. As of Husbandmen and day-labourers Tithes and Almes are to bee spared, so of those that deal in any Trade; for God gives to every man how to live, and what from his gift man so uses to provide for his body, much more ought he therewith to be at cost to provide for his soul. But the most observable of this intervall was that given before from King Edwards Law,1 De hortis & negotiationibus, & omnibus rebus quas dederit Dominus, decima pars, &c. of merchandise, and All the Tenth to be returned to God that gave: which yet because it was there both given and repeated needs not here again to be transcribed and recited. Remem∣bered be it that whereas before the Common Law was said to be made up of certain pre-existent materials, They as to this particular may have been such Laws as these: Whereas also those parts were after made up into one common body by King Edward, in giving this he may seem to have given the extract of Those (of this Nature before him:) Lastly, where∣as those so distinguished Laws had after severall Scenes whereon things within their several charges were acted, what was Ecclesiasticall being separate for the Consistory, what Temporal left to the Shire Court, &c. Therefore we may not now reasonably hereafter look for any thing more of these personal Tythes but where they were, that is, among the Sy∣nodals and Provincials, and there indeed we finde, nay we have both found and already given them before remembred and recited: as, What said2 Rob. Winchelsee? Statuimus etiam quod decimae personales solvantur de artificibus & mercatori∣bus, sc. de lucro negotiationis. We appoint personal Tythes be paid by handicrafts-men and merchants. Similiter etiam de Carpentariis, Fabris, Caementariis, Textoribus, &c. and of Carpenters, Smiths, Masons, Weavers, and all work∣men. What3 said he again? Decimam lactis, &c. venationum, artificiorum, & negotiationum: of hunting, handicrafts, and merchandise. What said Simon Mepham and

Jo. Stratforth, but to confirm and inforce what before he had before stated? and as well might then those that were pre∣dial and acknowledged due have been denied as these, They stood both on one bottom. So Edward 6. found them, and did by no means raise and impose this personal burden, but bound it on to continue fast where it had been, and was; insomuch that in stead of barren words, and empty lines, a special em∣phasis is to be acknowledged in that part of the clause laden with much Truth, where Every person exercising merchan∣dises, &c. being such persons, and in such places as have within fourty years past used to Pay Personal Tythes, or of Right Ought to pay (save day labourers) is command∣ed yearly before Easter to bring in their Dues. They were used to be paid: Then as Now, and Now as but Then, they must and ought. To make the Payment whereof more sure, or supply the defect, there was appointed a distinct1 mortuary, of those that were not very poor, for compen∣sation of such personal Tythes subtracted. The force of all which things, and particular∣ly the two Constitutions before mentioned was such, even before the statute, that as grave a2 Lawyer (as I believe) any lived in H. 8. time, though he wonders at some parti∣cularity here, that they may be demanded, and if denied, sued for, whereas in other pla∣ces they are left it seems to the Debtors con∣science, yet he avers their Duenesse, describes their Nature, speaks of them as of known Right, no more questionable then predial; And what should have been done about them if the intended Reformation, so often spoken of, had proceeded to maturity, might be guessed by that which was. For3 four

severall Chapters are taken up there about the disposition of them, the heads whereof were given before, and into the Contents of one of them this very Statute is taken and au∣thorized; If there had been a new Canon Law, those Chap∣ters should have been part of it; As there is none, the old is of force, and in all its power beside the Statute, and that a∣gain by Statute. Neither had the thing onely consideration in Books; we finde regard given to it in the Acts of Men, and the World busied, not to say very much troubled about the Wealth that came in by them. The great and vexed Contro∣versie in Oxford, in Henry 6. time about Fr. Russell and his Doctrine which took up the learned Disputes of the Univer∣sity there, and smoother Consultations also of the Convocati∣on at London, and after was transmitted to Rome, and there not ended, was onely about the necessary and fit Receiver of personal Tythes; while he maintained, it seems, to his own advantage, and against the Secular Priests, that they might be given as well to the poor as the Church, as we say, to the Monk as to the Priest, (and then he stood ready as a Mendi∣cant, as the Priest for his Parish:) They on the contrary to the Church onely, and so He and His were excluded. The de∣terminations it seems settled (the major part) against him, and he for his errour was injoyned to recant publickly at Pauls Crosse, lesse then the performance whereof would not serve the turn, and all the Pulpits in England commanded to ring of what an Heresie Fr. W. Russell had maintained (indeed against the Pulpits) about personal Tythes, now to be cried down by all opportunity, and the utmost of possibility. The Particulars I finde1 related at large; the use I make of them is onely this, that These things Have been of Real consideration, not an empty Book Order, but such as had influence upon things and produced visible effect, the Consultations of Men having been taken up about the disposall of the seen fruit of them, much busying, yea not a little troubling the World, for long since, and so long together, and so no doubt things stood to Edward 6. time, and so he found and left them. Whereupon, and that ancient rooted Right (spreading likely further, as might be found by further inquiry, if it were also need∣ful,)

he settled his new vote and order of confirmation as it were: What, to make personal tythes due! to give them life and raise them to being! Nothing less: to revive and quicken the Law, that dull men that were to pay, and had wont, might be rouzed up to a ready and obedient perfor∣mance of that which was their ancient known duty, to awa∣ken justice, and force backward men to bring in their publick tribute, which though for Gods service their worldliness had rather perhaps were left out or let alone: Due they were before; This vote of publick power onely cleared the chan∣nel that the in-come might be it self, and come in fresh and free, without impediment, for which His words and Act reach, we see, fully his meaning.

By occasion of which clause of such import, thus much: Thus much of Personal Tythes, And thus much also for that last binding Act of State both for personal and predial, in 2 & 3 Edw. 6. Behither which is little but the implying Peti∣tion of Right, (in the grant of All mens, without doubt mea∣ning These,) That other was the last, clear, full, expresse, purposed and direct binding order. Not yet of no force; Even for it self; though the chief strength (beside the Le∣gislative power of the Land, here drawn into Act) is in a∣broad and before; The Root that supports and cherishes most powerfully (both predial and personal still,) laying farther in the Right created by ancient Constitutions, deeper then possibly can be thought by any new declaration. For we shall seldome meet with a tree that planted the last year hath at∣tained much strength; It must have time to root and settle, before it can be able to endure the shock of a tempest, or make good its being against any forceable opposition: So the best and usefullest Constitutions of State are those expe∣rienced firm ones, that have lived, summered and wintered with us, as we say, and given approbation of their agreeing with the soil by having safely endured there all influences; Settling and gathering strength, (as it uses to be, and Must) by degrees, and in and with time clasping in fast to be made one, & co-incorporate with the soil of a Re-publick. Rash de∣crees use to be as soon revoked almost as made, bespeaking

little but uncertainty at first both to themselves, and all things and persons that they are conversant about: Blessed are the days when the Aged decree Judgement, the ancient and ex∣perienced good Laws, I mean, are made the sure and constant rule of Righteousness. And even this Humane Ordinance hath so much in it of Divine, that it partakes of toward his nature who is Constancy and Immutability.

Notes

• 1

  By Dr. Til∣desley e•• his Ani•• madvetsion on Mr. Seldens Preface to his Hi∣story At this day. Qui Religiosiores sunt inter Iudaeos, loco decimarum eleemosynam pendunt de omni∣bus l••cris; de∣cem aureos de ce••um, centum de mille, &c. Pirki Abboth. remembred by Mr. Selden in his re∣view of cap. 2. p. 455.
• 2

  De tempore Serm. 219 Tom. 10. pa. 169.
• 1

  Demilitia, de negotio, de artificio redde decimas. Caus 16. quest. 1. C. Deci∣mae. Quid est fi∣deliter decimas dare? nisi ut nec prius, nec minus aliquando Deo offerat aut de grano suo, aut de vino suo, aut de fructibus arbo∣rum, aut de pe∣coribus, aut de ho••••o, aut de ne∣gotio, aut de ipsa venatione ua. Caus. ead. Quaest. 7. Ca. Quicun{que}. De vino, grano, fructibus arbo∣rum, pecoribus, hortis, negocia∣tione, de ipsa eti∣am militia, de venatione, & de omnibus bonis, decimae sunt mi∣nistris Ecclesiae tribuendae, ita ut qui de his eas sol∣vere neglexerint, Ecclesiast ca di∣st••ictione debeant percelli. Decret. Greg. lib 3. tit. de decimis, cap. 22.
• 2

  Vid. Exce••pt. Egherti, can. 100. in Spelman.
• 3

  Capitula in∣certae editionis. cap. 35. in cod. p. 610.
• 1

  In cod p. 621. cap. 9.
• 2

  Lindwood lib. 3. tit. de de∣cimis cap. Quo∣niam propter.
• 3

  Ib. Cap. Sancta Eccl. sia.
• 1

  Si decedens tria vel plura cujus∣cunque generis in bonis suis habuerit animalia, optimo cui de jure fuerit de∣bitum reservato, Ecclesiae suae à qua sa∣cramenta recepit dum v••ve••et sine dolo, fraude, seu contra dictione qualibet pro recompenlatione subtractionis decima∣rum personalium & oblationum secun∣dum melius animal reservetur post obi∣tum, &c. tit de consuetud cap. statu∣tum, per Simon, Laughan.
• 2

  St. Germane, lib. 2. Dial. ult. fol. 172, 173.
• 3

  Magnam in∣dignitatem habet à tenuibus & laboriosis agricolis decimas annuas Ecclesiarum ministris suppeditare, mercatores autem opibus affluentes, & viros scientiarum & artificiorum copiis abundantes, nihil fermè ad ministrorum ne∣cessitates conferre, praesertim cum illis ministrorum officio non minùs opus sit, quàm colonis. Quapropter, ut ex par•• labore par consequatur merces, constituimus ut mercatores, pannorum confectores & artifices reliqui cujuscunque generis, ac omnes qui scientia vel peritia qualecunque lucrum percip••unt, hoc modo decimas persolvant: pro domibus nimirum atque terris quibus utuntur, & illarum ratione decimas prae∣••iales non solvunt, quol bet anno dabunt annuae pensionis decimam partem. Reform. L. Eccles. tit. de de∣cimi, cap. 14. p. 122, vid. etiam cap. 13. 15, 16.
• 1

  By Mr. Sel∣den in his History of Tythes, cap. 7. Sect 5.