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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A61092	The larger treatise concerning tithes long since written and promised by Sir Hen. Spelman, Knight ; together with some other tracts of the same authour and a fragment of Sir Francis Bigot, Knight, all touching the same subject ; whereto is annexed an answer to a question ... concerning the settlement or abolition of tithes by the Parliament ... ; wherein also are comprised some animadversions upon a late little pamphlet called The countries plea against tithes ... ; published by Jer. Stephens, B.D. according to the appointment and trust of the author.; Tithes too hot to be touched	Spelman, Henry, Sir, 1564?-1641.; Stephens, Jeremiah, 1591-1665.; Bigod, Francis, Sir, 1508-1537.	1647 (1647)	Wing S4928; Wing S4917_PARTIAL; ESTC R21992	176,285	297

were appropriate Therefore in the year 1252. Robert Bishop of Lincoln by commission from Innocent 4. not onely enlarged the endowments that before were made to divers Vicarages as he thought good but endowed others out of those Appropriations that had no Vicarages endowed to the great discontentment of all the Approprietaries of that time as appeareth by Matth. Paris And therefore also the Statute of 15 R. 2. cap. 6. and that of 4 H. 4. cap. 12. that ordained that in Licences of Appropriation in the Chancery it should be contained That the Bishop of the Diocesse in every Church so appropriated should provide by his dissretion that the Vicar were convenably endowed Divine service performed and a convenient portion of the fruits thereof yearly distributed to the poor of the Parish did but agnise and affirm the spirituall end whereto these Parsonages were appointed and the authority the Church had still over them notwithstanding such Appropriation commanding the Bishops to see it executed Neither doe I yet finde where this power is taken from the Bishops for the Statute that giveth these appropriate Churches to the King saith not that the King shall have them as temporall lands or discharged of the Bishops jurisdiction but that he shall have them as the religious persons had them that is as spirituall Livings and consequently subject to the jurisdiction of the Bishops before had over them and then are they no otherwise in the hands of the Laity for testimony whereof they also carry at this day the badges and livery of their Lords and Masters of the Clergy for as Joseph was taxed in his own City so are they yet ranked amongst other spirituall Livings and as members of that body doe still pay their Synodals and Proxies to the Bishops and Archdeacons and if Tithes bee withholden from the Approprietary he still sueth for them as spirituall things in the Spirituall Court All which are by Gods Providence left upon them as marks of the Tribe they belong unto that when the Jubile commeth if ever it please God to send it they may thereby be distinguished and brought back again to their own Tribe That no man properly is capable of an Appropriation but spirituall men Spirituall things and spirituall men are correlatives and cannot in reason be divorced therefore was no man capable of Appropriations but spirituall persons before the laws of dissolution which first violated this holy marriage and like Abimelech Gen. 20. 2. took the wife from the husband and made Laymen which before were the children of the Church now become spirituall Fathers The act of Appropriation is nothing but to make a body corporate or politique spirituall that hath succession perpetuall Incumbents in a Rectory or no more upon the matter then to entail the incumbency to one certain succession of spirituall men Therefore as a Patron saith my Lord Dyer Chief Justice and Plowden 496. must present a spirituall person to a Church and not a temporall so by the same reason an Appropriation must be made unto a spirituall person and not temporall for saith he the one hath cure of souls as well as the other and they differ in nothing but in this the one is Parson for his life and the other and his successours Parsons shall be for ever and for this in the beginning saith he were the Appropriations made to Abbots Priors Deans Prebends and such like as might in their own person minister the Sacraments and Sacramentals and to none other And for the same reason at the first it was holden that they could not grant their estates to any other no more then the Incumbent of a Parsonage presentative who though he may lease his Glebe and Tithes yet can he not grant his Incumbency to any other but must resign it and then the Patron and Bishop must make the new Incumbent And so the Incumbency which is a spirituall office cannot be granted nor by the same reason could the perpetuall Incumbent which is the Approprietary at the first grant his estate which contained the Incumbency and the Rectory which is the revenue of the Incumbent Therefore when the Order of the Templars to whom divers appropriate Parsonages were belonging was dissolved and their possessions granted to the Prior of S. John of Jerusalem in England Justice Herle in 3 Ed. 3. said that if the Templars had granted their estate in the Appropriations to the Hospitalers that is to them of S. Johns of Jerusalem the Hospitalers should not have it for it was granted onely to the Templars and they could not make an Appropriation thereof over unto others Therefore to make good the estate of the Prior and Hospitalers it was shewed there that by the grant of the Pope King and Parliament the Prior had the estate of the Templars And so by Herle an Appropriation cannot be transferred to another and with good reason saith the book for it hath in it a perpetuall Incumbency which is a spirituall function appropriate to a certain person spirituall and cannot be removed from them in whom it was first setled by any act of theirs Herle there also said that That which was appropropriate unto the Templars was disappropriate by the dissolution of their Order fo 497. B. So that as death is the dissolution of every ordinary Incumbent so the dissolution of a religious Order Monastery or Corporation is the death thereof and by that death according to this opinion of Justice Herle the Church appropriate that belonged thereunto is again become presentable as it was before the Appropriation whereunto my Lord Dyer and Manwood doe also agree and therefore by the dissolution of religious houses all Appropriations had been presentable like other Churches if the Statute of dissolution had not given them to the King and by as good reason might the same Law-makers have given him the other also for any thing that I perceive to the contrary Yet let us see in what manner they are given unto the King for though I cannot examine the matter according unto the rules of Law being not so happy which I lament as to attain that profession yet under correction I will be so bold as to offer some points thereof to further consideration as first what is granted to the King secondly the manner how it is granted thirdly the ends why And herein I humbly beseech my Masters of the Law to censure me favourably for I take it by protestation that I doe it not as asserendo docere sed disserendo quaerere legitima illa vera that Littleton speaketh of What was granted to the King 1. The Statute saith That the King shall have all such Monasteries Priories and other such religious Houses of Monks c. as were not above 2001 a year And the Sites and Circuits thereof and all Manours Granges Meases Lands c. Tithes Pensions Churches Chappels Advowsons Patronages Annuities Rights Conditions and other Hereditaments appertaining or belonging to every such Monastery 2.

discontenting his Clergy the halfe arch of his Kingdome even then hee forbare not to contest with them upon points of jurisdiction confining theirs unto matters of faith and extending his own to the uttermost limits of the outward government of the Church But because his hand and his seal doe more authentically enforce credit then the report of Authours and Historians see what he assumeth in his Charter of foundation of the Monastery Sancti Martini de bello commonly called Battail Abbey for that he built it as Romulus did the Capitol in the place where he overcame his enemies In this Charter he granteth that That Church shall be free from all servitude and from all things whatsoever mans invention can imagine and commandeth therefore that it be free from all government of Bishops neither shall the Bishop of Chichester though it be in his Diocesse make any Ordinations there nor grieve it any thing nor execute any kind of government or authority there but that it be as free saith he from all his exactions as my own Dominicall or Demesne Chappell The Abbot shall not be compelled to goe to the Synod nor forbidden to promote his Monks to holy Orders where him self listeth nor he or his Monks to require what Bishop they will to consecrate Altars c. And this also by my Regall authority I ordain that the Abbot shall be Lord and Judge of all things in his own Church and within one league round about it c. see the Charter at large Here it appeareth that this victorious King Will. 1. took himself to have Pallium Ecclesiasticae jurisdictionis the fulnesse of Ecclesiasticall power and as the supream Magistrate thereof not only abridgeth and revoketh the jurisdiction of other Bishops within this place as of the Archbishop of Canterbury and the Bishop of Chichester but disposeth the same according to his owne pleasure namely to the Abbey of Battail with so great enlargement of priviledge and authority as no Bishop of the Kingdome hath the like Free from all servitude and from all things whatsoever mans invention can imagine are exquisite words of priviledge and how far they might stretch at those times when the profession of our Laws was not a science into Regall or Canonicall jurisdiction I cannot judge but I know by Staffords case 1 H. 7. f. 18. they will now bee restrained with many exceptions So likewise that the Abbot shall not be compelled to come at Synods or to take Ordinations for his Monks or Consecration of Altars c. from the Bishop of his Diocesse are directly against the Decrees of the Church Canons Synods and generall Councels As also it is that hee should be Judge of things in his own Church and the circuit assigned which though here it bee but a league I see not but he might as well have made it ten if it had pleased him and by consequence a County or Province And lest the King should seem to have done this by some indulgence from the Pope or connivency of his own Clergy he saith expresly that he doth it by his Regall authority and that not closely or under-hand but Episcoporum Baronum meorum attestatione And to declare how far the Clergy of that time was from repining or impugning this his jurisdiction the Archbishop of Canterbury the Bishops of Chichester Winton and Worcester are witnesses to the Charter and denounce a curse against the breakers thereof One other thing also is worthy of note that the Kings Demean Chappell seemeth by this not to be within the jurisdiction and Diocesse of any Bishop but exempt and as a Regall peculiar reserved onely to the visitation and immediate government of the King or such as it pleaseth him to substitute for the Archbishop of Canterbury hath no jurisdiction there by his own confession ut pat Hoveden l. 4. 7. pa. 547. William Rufus in like manner told Anselme Archbishop of Canterbury that no Archbishop or Bishop of his Kingdome should be subject to the Court of Rome or to the Pope Quòd nullus Archiepiscopus vel Episcopus regni sui saith Mat. Paris curiae Romanae vt Papae subesset And because Anselm asked leave of him to fetch his pall from Pope Vrbane at Rome hanob rem saith Mat. Paris à rege majestatis reus postulatur he is called in question of High Treason an● Gundulphus Bishop of Rochester and very many other Bishops approved the accusation In vita Will. 2. p. 17 18. Malmsbery reporteth that his offence was for appealing to the Pope in matters between the King and him but he agreeth that all he had was confiscate and himself banished by consent of the Bishops and he addeth further that being after recalled into the Kings favour upon a new difference between the King and him he appealed the second time to Pope Vrbane and without the Kings licence would go thither for which cause his whole Bishopricke and goods were reseised into the Kings hands and he exiled And though the Pope threatned to excommunicate the King if he restored him not and the Councell then holden at Rome stormed much at the matter yet Anselm continued in that plight during the lives both of the King and the Pope Malmsb. de gest Pontif. li. 1. pa. 221 c. FINIS An answer to a question of a Gentleman of quality proposed to and made by a Reverend and learned Divine living in London concerning the settlement or abolition of Tithes by the Parliament which caused him to doubt how to dispose of his Sonne whom he had designed for the Ministrey wherein also are comprised some Animadversions upon a late little pamphlet called The Countryes plea against Tithes discovering the ignorant mistakings of the Authors of it touching the maintenance of the Ministery Sir THough it were high presumption for a private man as I am to presage what so wise a Senate as the Parliament will doe for the future either in point of Tithes or any other affaire of so publike concernment yet I hope I may without reaching above my line take upon me to tell you that the ground of your doubt touching their alienation of Tithes from the Ministery which I shall bring in its proper place is but such as will serve rather to beare up a transient suspicion or surmise of such a matter then a settled assurance that it either is so already or that hereafter it will be so For the first That it is not so I am sure because 1. They have passed an Ordinance for the Ministers recovery of Tithes and other Ministeriall dues from such as doe detaine them November 8. 1644. which is still in force through the influence of their power and favour 2. They have made competent additions to very many livings out of impropriated Tithes in the hands of Delinquents and this they have done with so much cheerefulnesse and beneficence on the Ministers behalfe by the Committee for plundred Ministers that many have cause to blesse

service of God not onely Samaria hath exceeded Jerusalem but even Babylon put down Sion And so Theodoret complaineth that the heathens did give their tenths and first-fruits to be employed in their idolatrous service to the maintenance of their Temples Oratories Priests and Altars in more liberall manner then Christians but saith he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Such honour saith he speaking of the care taken for the Egyptian Priests Gen. 47. the Priests of the living God and Ministers of our Redeemer Christ Jesus have not with us And much lesse have they in these days especially with us who boast to have reformed things amisse For yet amongst those of the Church of Rome it is otherwise that think nothing too dear for their Jesuites and have their Priests in so great respect that they fall down on their knees and desire their blessing every morning but Nuper Tarpeio quae sedit culmine cornix Est bene non potuit dicere dixit erit Mr Selden saith that the Turks pay the tenth according to the Mosaicall Law which they receive as authentique but keep it according to Mahomets fancy and the doctrine of his Canonists Mr Blunt an accurate observer in his travails affirmeth that the Turks in their principall Cities have very stately Moskeetoes i. Churches of magnificent building accommodated with goodly Colledges for the Priests lodgings and Bathes equall to the Monasteries of any City in Christendome Aelian relateth as Mr Selden citeth him that some kinde of beasts in Africa alwayes divided their spoile into eleven parts but would eat onely the tenne leaving the eleventh as a kinde of first-fruits or Tithe and why may not beasts of the field teach men the practice of piety seeing man that is without understanding is compared to them Thus Jews Pagans Turks and some beasts have had a care to pay Tithes but many Christians in these times come farre short in their duties and may bee upbraided with these examples Which are here more largely insisted on to shew the impiety of many men in these last days who are more inexcusable then ever any people were because we have the rules and practice of all ages set before us for our direction as before the Law of Moses in Abraham and Jacob and likewise under the Law during the Priesthood of Aaron and since under the Gospel abundant light to guide us besides all the Records Histories and Monuments of Gods judgements in former times to instruct us All which saith the Apostle 1 Cor. 10. are written and recorded for our admonition upon whom the ends of the world are come If we therefore offend now we are greater sinners then any former people as sinning against conscience knowledge and examples of all ages and like to the servant that knew his Masters will but did it not who therefore must be beaten with many stripes CAP. XXVII That they are due by the Law of the Land AS they are due by the law of Nature and of Nations by the Law of God and of the Church so are they likewise due by the very Temporall Laws of the Land as well ancient as later therefore Edward the elder and Guthrun Saxon and Danish Kings punished the not payment of Tithes by their temporall Constitutions Lambard 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 pag. 54. Tom. 1. Concil Britan. pag. 392. King Athelstan about the year of our Lord 924. not onely decreed them to be paid by himself his Bishops Aldermen and Officers but maintaineth that his Law by the example of Jacob saying Decimas meas hostiam pacificam offeram tibi and by other effectuall Authorities providing precisely that his owne Tithes should diligently be paid and appointing a time certain for doing thereof viz. the feast of the decollation of S. John Baptist. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 pa. 57. Tom. 1. Concil p. 402. King Edmund about the year 940. in a solemn Parliament as well of the Laity as Spiritualty ordained that every man upon pain of his christendome and being accursed should pay them truly 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 pag. 73. Tom. 1. Concil pag. 420. King Edgar in a great Parliament about the yeare 959. confirmed the payment of Tithes assigning certain times when every thing should be paid viz. the Tithe of all young things before Whitsontide of the fruits of the earth by the harvest aequinoctiall i. about the 12. Septemb. and of seed by Martimas and this to be done under the pain mentioned in the Book of the Lawes of the Land whereby it appeareth that the Laws of the Land had anciently provided for the payment hereof though the Book remaineth not to us at this day as well as the Laws of the Church And he further enacted that the Sheriffe as well as the Bishop and Priest should compell every man to pay their Tithes and should set it forth and deliver it if they would not leaving to the party offending onely the 9th part and that the other eight parts should be divided four to the Lord and four to the Bishop and that no man should herein be spared were hee the Kings Officer or any Gentleman whatsoever 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 pag. 77. Tom. 1. Concil pa. 444. King Canutus about the yeare 1016. made the like Law with some little enlargement as appeareth in his Laws ca. 8. and as Malmesbury testifieth strictly observed all the Laws of the ancient Kings de gestis Regum Angl. lib. 2. p. 55. And he wrote also about the 15. year of his reign from beyond the seas a long letter to all the Bishops and Nobility of England conjuring them by the faith that they ought both to himself and to God that they caused these Lawes touching Tithes and Rights of the Church to be duly executed and the Tithes to be paid as abovesaid Malmsb. p. 74. But King Edward the Confessor about the year 1042 made all certain namely that Tithe was due unto God and should be paid the tenth sheafe the tenth foal the tenth calf the tenth cheese where cheese was made or the tenth days milk where there was no cheese made the tenth lamb the tenth fleece the tenth part of butter the tenth pigge and that they that had but a calfe or two should pay for every of them a penny And to this price is the Parson generally holden at this day when ten of our pennies are scarcely worth one of that time He also ordained that Tithe should be paid of bees woods meadows waters mils parks warrens fishings coppises orchards and negotiations and out of all things saith the Law that the Lord giveth the tenth is to be rendred unto him that giveth the nine parts with the tenth and bindeth the Sheriffe as well as the Bishop to see this executed And all these were granted saith the Book by the King Barons and Commonalty as appeareth in those his Laws cap. 8. and Hoveden Annal. part poster pag. 602. Long after the learned Author had written this he published the first Tome

a year So that the Appropriation of a Parsonage was no more at the first but a grant made by the Pope c. to an Abbot Prior Prebend or some other spirituall person being a Body politique and successive that he and his successors might for ever be Parsons of that Church that is that as one of them died his successors might enter into the Rectory and take the fruits and profits thereof without further trouble of admission institution or induction which upon the matter was no more but to doe that briefly at one cut that otherwise might and would in length of time be done at severall times as to admit institute and induct the whole succession of a religious body politique at once whereas otherwise every successour must have had a particular institution and induction and therefore every such successour during his time was as perfect an Incumbent as if he had been particularly instituted and inducted but when the succession failed then it was again presentative as upon the death of an ordinary Incumbent and by extinction of the House dissolution cession or surrender of the House and Order the appropriation is determined and they are now again presentative for the appropriation is but as a stop in a run which being taken away the former right renueth What alteration then did the Statute make of them did it make them lay or temporall Livings no the words of the Statute are That the King shall have them in as large and ample manner as the Governors of those houses had them c. So that though the Statute changed the owner of the thing yet it changed not the nature of the thing The Monasticall persons had them before as spirituall Livings and now the King must have them in as large manner but still as spirituall Livings and with much more reason might the King so have them then any other temporall men for as the Kingdome and Priesthood were united in the person of our Saviour Christ so the person of a King is not excluded from the function of a Priest though as Christ being a Priest medled not with the kingdome so they as Kings medle not with the Priesthood Yet by the Laws of the Land the King is composed as well of a spirituall body politique as of a temporall and by this his spirituall body he is said to be supream Ordinary that is chief Bishop over all the Bishops in England and in that his Ecclesiasticall or Spirituall authority doth many things which otherwise in his temporall he could not doe and therefore the Statute of 25 H. 8. cap. doth agnise the words authoritate nostra regia Suprema Ecclesiastica qua fungimur which the King useth in divers Charters touching spirituall causes doe testifie that he taketh upon him the execution thereof and therefore in this respect he may much better hold them then his lay subjects Neither is this authority of the King founded upon the Statute of H. 8. or any other puisne institution but deduced anciently from the very Saxon Kings as appeareth by many of their Laws and Charters wherein as supream Ordinary they dispose of the rights and jurisdiction of the Church delivering unto religious persons greater or lesser portion thereof according to their own pleasure and abridging and exempting other from the authority of the Bishops and Archbishops or any other Ecclesiasticall Prelate And in this respect it seemeth that the Chappell of the Kings house was in ancient time under no other Ordinary then the King himself for William the Conquerour granting all exemption to Battail Abbey granteth that it shall be as free from the command of any Bishops as his own Chappell Dominica Capella which as it thereby seemeth was under no other Bishop then the King himself But the Bishops agreed to the granting away of these Church Livings It is true that the Law accounteth the judgement of the major part to be the judgement of all but the Bishops cannot be said to have agreed unto it as being willing with it but as concluded by legall necessity and inference For though all the Bishops said nay yet the Lay Barons by reason of their number exceeding the Bishops were not able to hinder it and no man doubteth that in publique suffrages very many times major pars vincit meliorem therefore I neither accuse nor condemn the reverend Bishops herein for their voices though they had given them every one against the Bill were not able to hinder it Neither doe I think but that they being men of another profession unexercised in the elenchs of the Law were overtaken in the frame of words and thereby passed that away in a cloud which if they had perceived could never have been won from them with iron hooks But in this matter there being a question of Religion Whether Tithes be due jure divino or whether they could be separated from the Church it was not properly a question decidable by the Parliament being composed wholly of Lay persons except some twenty Bishops but the question should first have been moved amongst the Bishops by themselves and the Clergy in the Convocation house and then being there agreed of according to the Word of God brought into the Parliament For as the Temporall Lords exclude the Bishops when it commeth to the decision of a matter of bloud life and member so by the like reason the Bishops ought to exclude the Temporall Lords when it commeth to the decision of a question in Theology for God hath committed the Tabernacle to Levi as well as the kingdome to Juda and though Juda have power over Levi as touching the outward government even of the Temple it self yet Juda medled not with the Oracle the holy Ministery but received the will of God from the mouth of the Priest Therefore when Valentinian the Emperour required Ambrose to come and dispute a point of Arianisme at his Court he besought the Emperour that he might doe it in the Consistory amongst the Bishops and that the Emperour would bee pleased not to be present among them lest his presence should captivate their judgements or intangle their liberty That after the Appropriation the Parsonage still continueth spirituall It appeareth by that which is afore shewed and the circumstances thereof that the Appropriating of a Parsonage or the endowing of a Vicarage out of it doe not cut the Parsonage from the Church or make it temporall but leaveth it still spirituall as well in the eye of the Common Law as of the Canon Law for if it became temporall by the Appropriation then were it within the Statute of Mortmain and forfaited by that very Act. But it is agreed by the 21 Ed. 3. f. 5. and in Plowd Com. fo 499. that it is not Mortmain and therefore doth continue spirituall for which cause also the Ordinary and Ecclesiasticall Officers must have still the same authority over such appropriate Churches as they had before those Churches