Question V: By what authority the payment of tithes is to be exacted

THAT this payment, if it is unjustly refused, can be justly demanded, no one has ever doubted; and this is true to such a degree, even if the one to whom it is owed long delays to demand it; for a debt is not remitted because it is not demanded within a set time, unless such a condition is attached; which rarely happens. Hence the mark of downright temerity is deservedly branded at Paris on Suarez cap. 38., because improbably he alone, unsupported by any instance either of reason or of authority, asserted that a parish priest who does not demand the tithes of fruits at the time of collection can no longer demand them: For no one prescribes against his own property by omitting to demand it, especially since the thing ought to be rendered without demand; and tithes are to be paid thus, as I said above, unless custom stands in the way.

TRULY, although the Parish priest, or another Cleric who holds them by just title, has the right to demand them, yet he cannot claim any authority of compelling by force, even if the Lord of the fruits utterly refuses them; partly because everyone is the legitimate possessor of his own property until he abdicates its dominion by traditio; partly because the parish priest is a private person, to whom it does not pertain to vindicate such an injury by right, either by seizing the thing itself, or by denying the Sacraments to the one who so injures.

THEREFORE the Ecclesiastical Judge, or the Prelate of the Church, is to be resorted to, who ought to preside over Ecclesiastical causes, such as tithes are: For since the penalty inflicted on the contumacious withholders of tithes is excommunication, a penalty indeed worthy of so great a disobedience, it must be pronounced by one having Ecclesiastical jurisdiction. So cap. 16. omnes, quaest. 7., and the Council of Trent decrees in sess. 25. cap. 12. de reformat.: Those who withhold or hinder tithes are to be excommunicated, nor are they to be absolved from this crime without full restitution having followed; which understand, if they have the means of restoring; for if they have become unable, they can be absolved by the one having jurisdiction, precaution having been given, and the purpose of satisfying the Church when they are in a position to pay.

IT MUST BE NOTED, however, that decree of the Council binds not only the holders of tithes by excommunication, but also obliges the prelates of the Church to compel their subjects in that manner to the payment of Tithes; in which, however, great prudence is to be employed, as Suarez warns in the place cited, that they lead them to it in an amicable way and through some composition, lest on account of a custom not duly prescribed, scandals and other disturbances arise.

NOR does such a composition, or agreement, in any way savour of simony, since it is not a question of spiritual right, but of temporal revenue, in whose administration the Prelates are bound to show themselves faithful and peaceable.

BUT if lands are alienated after the tithes due have been contracted, many, cited by Suarez in the place cited above, add that the pastors of the Church can demand the praedial tithes from those persons to whom the lands have been sold. More, however, hold that such lands remain liable only for future tithes, not for past ones; and this seems more probable. Nor can it be alleged to the contrary that the praedial goods of the faithful remain bound by way of a tacit Hypothec, under a certain tacit obligation, so that tithes may be paid from them wherever they are found, and thus pass with the burden of paying them, whether they be future or past, in the same manner as the goods of a husband remain tacitly hypothecated for the payment of the wife's dowry, with whomever they are found.

To this I reply that every hypothecary obligation arises from some law; but in this case no law can be shown.