nimis refrixerat and agreeing to this reason is a passage in the Synod of London held vnder Lanfrank Archbishop of Canterbury in 9. Will. 1. Et quod are the words multis retro annis in Anglico regno vsus Conciliorum obsoluerat renouata sunt c. that Canon seems to haue been made against arbitrarie consecrations of Tithes then practiced whereof anon largely XVII The Laws of Henrie the first haue one title De placitis Ecclesiae pertinentibus ad Regem and vnder that are these words Si quis rectam Decimam superteneat vadat praepositus Regis Episcopi terrae Domini cum Presbytero ingratis auferant Ecclesiae cui pertinebit reddant nonam partem relinquant ei qui Decimam partem dare noluit according to those of King Edgar and King Knout before related XVIII Alberique Bishop of Ostia Legat in England to Pope Innocent the second in 3. of King Stephen held a Synod at London and in that as I haue seen it transcribed out of a book of Worcester this Canon is De omnibus Primitijs rectas Decimas dari Apostolica autoritaee praecipimus quas qui reddere noluerit anathematis in eum sententia proferatur Primitiae must it seems be here vnderstood for euery new yeers encrease XIX Vnder Henrie the second a Pontificiall Decree was sent to all the Bishops of the Prouince of Canterburie about the yeer M.C.LXX. by Pope Alexander the third commanding them that they should admonish all men in their seuerall Dioceses si opus fuerit as the words are Sub excommunicationis districtione compellere vt de prouentibus Molendinorum Piscariarum Faeno Lana Decimas Ecclesijs quibus debentur cum integritate persoluant the direction of it was Cantuariensi Archiepiscopo eius suffraganeis To this you may adde that other of the same Popes to the Bishop of Winchester Mandamus quatenùs Paraecianos tuos de Apibus de omni fructu Decimas persoluere Ecclesiasticâ districtione compellas Both these were afterward made part of Gregories Decretalls and are of force to this day in the Canon Law of the Church of Rome XX. In 21. of the same King Henrie the second Richard Archbishop of Canterburie held a Prouinciall Synod at Westminster in which were neer all the Bishops and Abbots of his Prouince as also the two Kings the father and the sonne there diuers Constitutions out of old Councells and Popes Decrees were published to be obserued in his Prouince among them one is out of a Synod at Rosne in these words Omnes Decimae Terrae siue de frugibus siue de fructibus Domini sunt illi sanctificantur sed quia multi modò inueniuntur Decimas dare nolentes statuimus vt iuxta Domini Papae praecepta admoneantur semel secundò tertiò vt de grano de vino de fructibus Arborum de foetibus animalium de lana de agnis de butyro caseo de lino canabe de reliquis quae annuatim renouantur Decimas in egrè persoluant quòd si commoniti non emendauerint anathemati se nouerint subiacere XXI Hubert Archbishop of Canterburie by his power Legatin receiud from Pope Caelestin the third in 6. Rich. 1. held a Prouinciall Councell for the Prouince of Yorke and therein one of the Canons thus speaks for Tithes Cum Decimae sint tributa egentium animarum ex praecepto Domini dari debeant non est reddentis eas diminuere Statuimus itaque vt de his quae renouantur per annum cum omni integritate Decimae debitae consuetae conferantur ita vt inprimis Decimae absque vlla diminutione Ecclesiae dentur postmodùm de nouem partibus mercedes messorum aliorum seruientium pro arbitrio soluentis tribuantur XXII The same Archbishop Hubert in 2. of K. Iohn Generale celebrauit concilium Lundonijs apud Westmonasterium contra prohibitionem Galfridi filij Petri Comitis de Essexe tunc temporis summi Iustitiarij Angliae for it appears that in those elder times there was great controuersie between the King in whose right the Chief Iustice of England here sent out his prohibition and the Archbishop touching this point whether the Archbishop either as Archbishop or as Legat might hold a Prouinciall or Nationall Councell without autoritie from the Crown but that is now declared cleer and so practiced that he may not In that Councell notwithstanding the prohibition he ordaind thus for tithes Cum Deo Sacerdotibus Dei Decimas dandas Abraham factis Iacob promissis innuent autoritas veteris noui Testamenti necnon sanctorum Patrum statuta declarent Decimas de omnibus quae per annum renouantur praestandas id inuiolabilitèr decernimus obseruandum ita quod occasione mercedis seruientum vel messorum decima pars non minuatur sed potius integre persoluatur Habeant etiam Presbyteri potestatem ante autumnum excommunicandi omnes fraudatores decimarum suarum eosdem secundum formam Ecclesiasticam absoluendi Huic adijcimus sanctioni vt de terris nouitèr cultis non aliàs dentur decimae quam Ecclesijs Parochialibus infra quarum limites terrae illae de quibus Decimis perueniunt excoluntur Detentores verò Decimarum iuxta Rothomagensis Concilij constitutum si semel secundò tertiò commoniti excessum suum non emendauerint vsque ad satisfactionem condignam anathematis vinculo feriantur saluo in omnibus S.S.R.E. honore priuilegio which Saluo is to euery of his Canons XXIII Among the Decretall Epistles of Pope Innocent the third one is directed Cantuariensi Archiepiscopo vt Ecclesijs Parochialibus iustè Decimae persoluantur and thus speaks Peruenit ad audientiam nostram quod multi in Docesi tua Decimas suas integras vel duas partes ipsarum non illis Ecclesijs in quarum Parochijs habitant vel vbi praedia habent à quibus Ecclesiastica percipiunt Sacramenta persoluunt sed eas alijs pro sua distribuunt voluntate Cum igitur inconueniens esse videatur à ratione dissimile vt Ecclesiae quae spiritualia seminant metere non debeant à suis Parochianis temporalia habere fraternitati tuae autoritate praesentium indulgemus vt liceat tibi super hoc non obstante contradictione vel appellatione cuiuslibet seu consuetudine hactenus obseruata quod Canonicum fuerit ordinare facere quod statueris per Censuram Ecclesiasticam firmiter obseruari Nulli ergo c. confirmationis c. Datum Lateran II. nonas Iulij XXIV In a collection of diuers Constitutions for the English Church out of Councells and others titled only Constitutiones cuiusdam Episcopi and writen about Hen. the thirds time one of Tithes occurs Decimas de omnibus quae renouantur per annum maximè consuetas dandas decernimus potissime de molendinis
ad lucrandum vel perdendum de aduocatione Ecclesiae de Budeketun vnde placitum erat inter eos in Curia Regis scilicet quod Prior Monachi remiserunt quietum clamauerunt eidem Richardo haeredibus suis aduocationem praedictae Ecclesiae per ita quod persona quae per ipsum Richardum vel haeredes eius in eadem Ecclesia instituetur reddet singulis annis Ecclesiae de Lewes IIII. solidos scilicet ad festum Sancti Michaelis ille qui in eadem Ecclesia per ipsum Richardum vel haeredes suos instituetur persona post institutionem suam coram Episcopo fidelitatem praestabit quod praedictam pensionem praedicto termino Ecclesiae de Lewes persoluet posteà in Capitulo de Lewes eandem fidelitatem innouabit Here it appears it seems by the iudgement of the Kings Iustices that the Patron had such interest in those times that he might alone without grant of the Encumbent who came in by his Institution and Inuestiture or confirmation of the Bishop charge the church with a pension and this being in a Fine is of autoritie beyond exception for that age But the like is in Rot. Fin. 7. Rich. 1. Lancast. in a Fine leuied between Theobald Fitz-water demandant in a Writ of Right of Aduowson against the Abbot of Shrewsburie of the Church of Kirkham where XII marke Rent is reserued to the Abbot with a like clause for the Encumbents fealtie for true payment the like in Fin. 4. Rich. 1. diuers Comit. touching the Church of Dacheworth yet also in that age the assent of the Parson and Bishop was somtime had as in Rot. Fin. 7. Rich. 1. Staff where vpon Right of Aduowson by the Prior and Canons of Stanes against Alice Hopton for the Church of Cheklegh Alice Robertus filius haeres suus per assensum voluntatem H. Couentrensis Episcopi in cuius Diocoesi Ecclesia illa sita est Osberti personae eiusdem Ecclesiae tunc ibidem praesentium concesserunt praefatis Priori Canonicis XXs. de eadem Ecclesia de Cheklegh annuatim percipiendos sine omni contradictione imperpetuum de Clerico eandem Ecclesiam possidente quicunque ille fuerit ad duos terminos videlicet ad Pascha Xs. ad festum S. Michaelis X ◠c Here the assent of the Parson and Bishop being both present in Court is inserted in the Fine yet inough examples shew that it was not as may be strongly coniecturd thought altogether necessarie But indeed howeuer the right of Inuestitures had been then much exercised by Lay Patrons yet in case of Clergie Patrons if the Church were not of exempted iurisdiction the Bishops more vsually instituted and therefore was their assent the sooner admitted somtimes into the Fine and doubtlesse also some lay Patrons willing enough herein to obey the Canons after Anselm and perhaps before arbitrarily filld their Churches by presentation to the Bishop this may be collected especially out of that of the grant of the priuilege of Institution in Churches made by Turstan Archbishop of York vnder Henrie the first to the Archdeacon of Richemond as also out of two Decretalls from Rome sent by Pope Lucius the third vnder Henrie the second to the Bishop of Norwich and in some other autoritie both in our yeer books and in the fine Rolls also of the beginning of King Iohn the Bishops assent in such grants of that time is sometimes found and in that commonly but without sufficient ground attributed to Randol of Glanvill chief Iustice of England to Henrie the second the Bishops institution is spoken of as a thing of not vnknown right vpon a recouerie in Darrain presentment according as the Canons require And in an Epistle of Giraldus Cambrensis writen in those times to Hugh Bishop of Lincoln about his Parsonage of Cestreton which he challenged vpon presentation of himself made by Gerard of Camvill a Gentleman of great worth in Lincolnshire the Bishops Institution is spoken of as cleerely necessarie according to the Canons and noted with Episcopus solus honores dare potest which you must remember was writen by one that was feruent for the Canons and had also writen against the auitae consuetudines or common Laws of that time But these testimonies must be warily vnderstood and compared with the former and frequent practice of the contrarie which about that time especially vnder Richard the first and King Iohn it seems much altered Neither till about that time can it be found that the more common practice of Lay mens Inuestitures ceased Nor was the Bishops Institution presently and vniformely thence vsed as of later ages The autoritie of the Clergie had by that time taken away the vse of Lay mens Inuestitures Yet was it not cleere it seemes vpon the practice that here followed what dignitie of the Clergie should then exercise the Institution for you shall find it sometimes done by the Archdeacon as it was also before K. Iohn in some cases where any Lay man omitted his Inuestiture as may be gathered out of a Decretall sent hither from Pope Alexander the third to forbid the Archdeacon of Ely Curam animarum sine mandato Episcopi committere And afterward also in Pasch. Trin. 9. 10. Reg. Ioh. a Writ is awarded to the Archdeacon as now it ought to the Bishop vpon recouerie of a Presentment The entrie is thus Recordatum est per G. filium Petri Simonem de Pateshull quod Simon filius Richardi tempore Regis Richardi recuperauit coram eis socijs eorum versus Iohannem de Kalceto seisinam Aduocationis Ecclesiae de Buckworth in Huntingdonshire per assisam de vltimâ prasentatione ita quod habuit breue quod Archidiaconus admitteret personam ad Ecclesiam illam ad praesentationem eidem ipse Iohannes impediuit eum ita quod implacitauit eum per breue Papae Dominus Rex prohibuit placitum Simon venit impetrauit à Rege quod loquela procederet quod haberet breue ab Archidiaconum de Clerico suo admittendo habuit T. domino G. filio Petri Will de Briwere Here twice was the Writ of Admission or Institution sent to the Archdeacon not to the Bishop Perhaps indeed it happened in the vacancie of the See for the time so falls that we cannot be sure of the contrarie But admit it were so Plainly the Archdeacon neither by Canon nor common Law had any more right of Institution by reason of a Vacancie of the Bishoprique And certainly during the vacancie the Writ should goe to the Gardians of the Spiritualtie which by the Canon Laws are the Deane and Chapter but by the Law of England the Archbishops in their seuerall Prouinces and the Deanes and Chapters only in case where the Archbishopriques are void And in other places somewhat afterward also I haue seen Institutions often by the
Ecclesiasticas in soro seculari nec tales homines determinent vtrum talis Capella debeat habere Baptisterium Sepulturam an non For if it had the right of administration of Sacraments in it and Sepulture also then differd it not from a Parish Church but might be stiled Capella Parochialis by which name some Chappels are with vs known and in the Saxon times also we find Coemiterium Capellae for the buriall place of a Chappell which must be vnderstood of a Church that had the like right as that which is mentiond in the second part of Edgars Law and those other churches which in his and K. Knouts Laws are spoken of that is Churches without buriall places feldcyrican or field-Churches are only what at this day we call Chappels of ease built and consecrated for Oratories but not diminishing any thing of the Mother Churches profits But also besides those originall Lay foundations some Parishes haue had other beginnings since from alterations made in regard of the inconuenience of their former limits And this by direction or autoritie both from the Pope or Bishops according as they saw occasion exacted and from the King For the Pope we may see in the exāple remaining in the Decretals where Pope Alexander the third sends his Decree to the Archbishop of York reciting that in a complaint made to him he had heard that a certain Town in his Prouince was so distant from the Parish church that it was very difficult for the Inhabitants to repaire thither especially in winter and withall that the Church reuenue of the Parish although that Town were exempted was not insufficient for the Minister of the Mother Church wherefore he commands the Archbishop to build in that Town a Church and with assent of the Founder of the Mother Church to institut at the Presentation of the Rector an Incumbent there that might haue to his own vse all Ecclesiastique profits encreasing in the limits of the same Town and so acknowledge a superioritie to the Mother Church and that he should do it also whether the Rector of the Mother Church would assent or not For the King an old example is in 13. Hen. 3. where because the Church of S. Peeters in Chichester was very poor that only two Parishioners were in it the King at request of Ralf Neuill then Bishop there Chancelor of England grants quod eadem Ecclesia demoliatur praedicti duo Parochiani qui spectabant ad ipsam assignentur imperpetuum Hospitali S. Mariae quod eidem Ecclesiae est vicinum vt ibi deinceps percipian◠spiritualia sint Parochiani eiusdem Hospitalis And such like commands occasions and conueniences doubtlesse haue alterd and made the limits of diuers Parishes eueriewhere both in the Countrie and Cities which haue to this day many of small Territorie but of large number of Communicants For Parochiall limits thus much CAP. X. I. The Practice of Tithing Of K. Cedwalla's Tithing being no Christian. the custom of the German-Saxons in sacrificing their tenth captiue to Neptune Decima vsed for a lesse part also in ancient moniments II. The Practice of Tithing in the Christian times of our Ancestors the tale of Augustin and the Lord of Cometon touching non payment of them the Tithe of euery dying Bishops substance to be giuen to the poor by an old Prouincial Synod Tithes how mentiond in Domesday Testimonies of payment of them Henrie the thirds grant of the payment of tithe of Hay Mils out of all his demesnes The beginning of Parochiall payment of Tithes in common and established practice in England How that common assertion that euery man might haue disposed his tithes at his pleasure before the Councell of Lateran is true and to be vnderstood THe Laws of this Kingdom for payment of Tithes and the originall of Parochiall right to profits accruing within the limits of euery Parish Church which were after Lay foundations grew common distinguished according to the adiacent possessions and tenancies of the Founders and their Farmes Mannors Towns and the like being hitherto declared the Practice of the times remaines to be also discouered I. In that something also is obseruable among the Ancients of this Kingdom of a kind of Tithing related to haue been where Christianitie was not yet receiued Some of them tell vs of Cedwalla King of the West-Saxons that before his being made Christian about the yeere DC.LXXXVI he tithed all his spoiles of Warre to the Deitie So the Monk of Malmesburie Arduum memoratu est saith he quantum etiam ante baptismum inseruiret pietati vt omnes manubias quas iure praedatorio in suos vsu◠transcripserat Deo decimaret neither if he did so was it without some example of his Ancestors the German-Saxons whence England was chiefly filled who were wont to sacrifice to Neptune I think the Tenth of all captiues taken in their pyracies and incursions made by Sea vpon the Gaules specially so saies my Autor that liud about the time of the German-Saxons first arriuall here his words of them are Praetereà priusquà m de continenti in patriam vela laxantes hostico mordaces anchoras vado vellant mos est remeaturis Demimum quenque captorum per aquales cruciarias poenas plus ob hoc tristi quod superstitioso ritu necare super que collectam turbam periturorum mortis iniquitatem sortis aequitate dispergere Talibus se ligant votis victimis soluunt per huiusmodi non tam sacrificia purgati quam sacrilegia polluti religiosum putant caedis infaustae perpetratores de capite captiuo magis exigere tormenta quam pretia Neither I think is any other expresse mention of this their Tithing among ancient moniments and for that their sacrificing to Neptune indeed the Autor Apollinaris here mentions him not but it being done at Sea and per aquales for so is the true reading although some there read aequales poenas you may wel coniecture it was to Neptune or to their supposed Deitie of the Sea and thus the most learned and noble Monsieur Sauaron in his notes vpon Apollinaris expresly also makes it a sacrifice to Neptune and although it be true that among their gods we find none namd that is denoted to answer to Neptune yet that some Deitie of the same nature that is some great Sea god was in their superstitions may be easily collected not only from this relation of their cruell deuotions but also from their wondrous and accurat obseruation of the ebbs and flouds called by them Ledons and Malins which were the chief Directors of their account of times as the Sun and Moons motion hath euer been to other Nations which doubtlesse was no small cause that the Sea was to them reputed a Deitie as the Sunne and Moone also before other Creaturers in the ancient Theologie of the Gentiles But for that of Cedwalla let it be vpon Malmesburie credit that he tithed his
questionlesse were not without some effect being so often renewd Neither is the memorie of some vse of payment here in these more elder times omitted in the reliques of antiquitie In the Ms. life of the British Saint Cadoc among some Laws of his Church of Lhancaruan which seem to be attributed to his time which falls about our Augustine or before one is Quicunque decimauerit debet diuidere in tres partes primam dabit Confessori secundam Altari tertiam orantibus pro eo but the Autor of this whence we haue it wrote not till after the Norman Conquest And it is reported also of Eadbert Bishop of Lindisfarn or Holy Iland that he was Eleemosynarum operatione as Bedes words are insigni ita vt iuxta legem omnibus annis Decimam non solum quadrupedum verum etiam frugum omnium pomorum necnon vestimentorum partem pauperibus daret which words are almost repeated also by Turgot Prior of Durham that wrote the storie of that Bishoprique But here no custom of the place or common vse is noted but only a speciall deuotion of Eadbert and for that of iuxta legem you must vnderstand it of Moses Law and so is it exprest in the Saxon Copie of Bede where I read that he did it aefter Moyses ae and that is according to the Law of Moses Neither is the regard in those times had to a tenth although not yeerly to to be paid as for a soules ransom to the poor after the death of euery Bishop out of his estate to be here wholly neglected Out of this regard may be inferd that therein also the Tenth was reputed as a sanctified part And wee learne it out of a Councell held in DCCC.XVI In loco famoso as the words of it are qui dicitur Celichyth Praesidente verò Wlfredo Archiepiscopo caeterisque adsedentibus australibus Anglorum Episcopis which hath this Canon Iubemus hoc firmitèr statuimus ad seruandum tam in nostris diebus quamque etiam futuris temporibus omnibus successoribus nostris qui post nos illis sedibus ordinentur quibus nos ordinati sumus vt quandocunque aliquis ex numero Episcoporum migrauerit de seculo tunc pro anima illius praecipimus ex substantia vniuscuiusque rei Decimam partem diuidere ac distribuere pauperibus in eleëmosynam siue in pecoribus armentis seu de Ouibus Porcis vel etiam in Cellarijs necnon omnem hominem Anglicum liberare qui in diebus suis sit seruituti subiectus vt per illud sui proprij laboris fructum retributionis percipere mereatur indulgentiam peccatorum And for the succeeding times of the Saxons we may well coniecture a practice of payment out of King Knonts Epistle sent in M.XXXI as he departed homeward from Rome by Liuing Abbot of Tanystok to Athelnoth and Alfrique the two Archbishops by name and to the rest of the Bishops Baronage of England he therein straitly charges them all that according to the ancient Law they should take care that Tithes were duly paid among other Church reuenues wherin if he found default at his coÌ„ming they should expect seuere punishment the words were Nunc igitur obtestor omnes Episcopos meos regni mei praepositos per fidem quam mihi debetis Deo quatenùs faciatis vt antequam in Angliam veniam omnium debita quae secundum legem antiquam debemus sint persoluta scilicet eleemosyna pro aratris Decimae animalium ipso anno procreatorum Denarij quos Romam ad sanctum Petrum debetis siue ex vrbibus siue ex villis mediante Augusto Decimae frugum in festiuitate S. Martini primitiae seminum ad Ecclesiam sub cuius Parochia quisque degit quae Anglice Curâ—scet nominatur Haec alia si cum venero non erunt persoluta regia exactione secundum leges in quem culpa cadit districtè absque venia comparabit and the Monk that relates it addes nec dicto deterius fuit factum But what euer may be out of these testimonies concluded it is noted among the Laws attributed to Edward the Confessor that what through the coldnesse of deuotion what through the neglect of demanding Tithes by the Clergie that were otherwise grown very rich in reall endowments the practice of paiment of them was much diminished Sed postea instinctu diaboli are the words which follow immediatly what is before in the Chapter of Laws § XIII multi Decimam detinuerunt Sacerdotes locupletes negligentes non curabant inire laborem ad per quirendas eas eo quod sufficienter habebant suae necessaria vitae Multis enim in locis modo sunt tres vel quatuor Ecclesiae vbi tunc temporis vna tantùm erat sic ceperunt minui· but we are not sure that this addition to the Law is as ancient as the Confessor I think it indeed rather of somewhat later time yet doubtlesse the generall practice of paiment according to those ancient Laws howeuer it might be in elder times was about the Norman Conquest much discontinued which may be specially obserued out of that book of Domesday the originall Copie whereof yet remains in the Receipt of the Exchequer in which the Possessions and Reuenues both of the Clergie and Laitie were accounted and valued by the othes of Enquests taken in euery Countie vpon commission and so returned thither about the end of the Conquerors raign There frequently enough Churches are mentioned by the words of Ibi Ecclesia Presbyter or such like and how many Carues or Hides of land how many villans and other endowments and reuenues belongs to them are reckond with their values But very rarely any Tithes among those Church reuenues are there found if none at all had been namd it might haue been thought that they had been omitted as a more sacred profit then was fit to be taxed in such a Description But some although very few occurre in it as vnder Terra Osberni Episcopi in Boseham in Sussex you may there find that Decimam Ecclesiae Clerici tenent valet XLs. where the lest value of the Mannor is made at XLli. per annum in Hampshire vnder Terra Osberni Episcopi you read Ecclesia S. Michaelis de Monte tenet de Rege in Basingestoches Hundred vnam Ecclesiam cum 1. hida Decimam de Manerio Basingestoches Ibi est Presbyter So in the same Shire vnder Terra Regis Ipse Rex tenet Wallope c. ibi Ecclesia cui pertinent vna hida medietas Decimae Manerij totum Curset de Decima villanorum XLVI denarij medietas agrorum Ibi est adhuc Ecclesiola ad quam pertinent VIII acrae de Decima for these VIII acres of Tithes see before in the Chapter of Laws § IX.X. and XI And in the same Shire also among the Abbot of Lire's possessions the
of such as are of choicest Learning ablest Iudgment and truly Decumatissimi aswell in worth as Title Nor is it at all materiall what any one shall cast on it through his secure confidence only in any of those old ensigns of dissembled Ignorance or Grauitie the Beard the Habit and Title It is for such to learn by not at all to censure And none of the Ingenuous and Learned that read it wil be backward I think to allow it for Truth as he did that first licenced it for the Presse with Ita est subscription of his Name But wee leaue this preposterous Admonition in Negatiues yet by reason of the head-long importunitie of such as haue in great number alreadie misconceiud it they were necessarie and could not elswhere haue had so fit place and shortly thus delineat what it is by the end and purpose of writing it by the Argument of it by the Course of composing it and by the summe of performance in it in behalfe of the Clergie For the first we find that in the frequent Disputations about Tithes not only Arguments out of holy Writ for proofe of a Diuine right to them but matter also of Fact that is Practice and Storie is very often vsed as the kinds of paiment of them among the Ebrews among the Gentiles the Maintenance of the Church in the Primitiue times the Arbitrarie Consecrations Appropriations and Infeodations of them in the midle times the Payment of them at this day in the seuerall States of Christendom together with the various Opinions and positiue Laws touching them For Opinions and Laws as they are related only and fall vnder the Question of what and whence they were are meerly of Fact And proofs are hence often drawn to confirm sundrie occurrences in inquirie for the truth on either side That of the Diuine right of them is so wholly a point of Diuinitie and handled so fully by diuers Schoolemen so imperiously by most of the Canonists and so confidently by some of our late Diuines that what euer could be said touching that only by inference out of the holy Text which must be the sole triall of it would but seem taken from some of them which haue so purposely disputed it Neither were that so fit to be medled with by any as by a profest Diuine But for that other part which falls vnder Historie there is not one of them all which hauing boldnes enough to aduenture on it which he disputes withall of the diuine right shews not also too much either Ignorance or Negligence in talking of it being vsually deceiud and deceiuing in it those most of Readers that giue their Historicall faith captiue to bare Names and common reputation And as in that old picture of Homer the rest of the following Poets greedily swallowd what euer he had vomited forth so among these one so rashly receiues herein error from another and so increases it that there was neuer found a better example of the old prouerb Sardi Venales or worse and worse then in most of their multiplied pamphlets of it which of them relates towards what is fit to be known touching the paiment among the Ebrews among the Gentiles among Christians of former time nay which of them seem to know or to haue heard of the chief human positiue Laws made for Tithes yet would they gladly vse them if they had them where is there among them an ingenuous discouerie of the various Opinions of past Ages that belong hither who of them once touches the right ancient course of setling Tithes at first in Monasteries Colledges or other such Corporations by Appropriations and Consecrations of them who of them tells vs other then meer fables while hee talks of the originall of Infeodations and with what patience can you read those which as great Doctors talke of Exemptions and pretend themselues to the world for such as discouer the most secret curiosities or cornicum oculos configere tell vs of four Orders exempted and make the Hospitalers and those of S. Iohns of Ierusalem to be two of them with other such most grosse and ridiculous absurdities and it is a common but most deceiuing argument among them affirmatiuely to conclude Fact or Practice of Tithing from what they see ordaind for Tithes in any old Canon of the Church as if euery thing so ordaind necessarily had also a following vse it being indeed frequent enough to find Canons directly contrarie to following Practice and that euen in the proceedings of the Canon Law which as the body of it is was neuer receiued wholly into practice in any State but hath been euer made subiect in whatsoeuer touches the temporalties or maintenance of the Church which come from Lay men to the varietie of the secular Laws of euery State or to Nationall customes that crosse it Is it enough to proue that Parish Churches in England were regularly euer to be repaird by the Parsons because the generall Canon Law is so or that a Clergie man might not haue bequeathd any chattels wherin he had right in respect of his Church because also by that Law he might not In England generall customs of the contrarie in both cases still held and in many other as you see in Lindwood who knew both the generall practice here and the Canons and often also teaches their differences in other cases very many like may be found in other States by comparing their immemoriall customs and old ordinances that are against the Canons and that both in the Eastern and Western Churches and for the Eastern Canon Law passages are found to this purpose in Zonaras and Balsamon the two chief and ancient Canonists of that part The Laitie at pleasure commonly limited the Canon Law especially where it toucht their dignities or possessions and that aswell before Luther so derogated from the autoritie of it by burning it at Witteberg in a publique assembly in despite of the Pope as after which might be manifested by a world of examples but it is most cleer to all that know Historie To argue therefore from affirmatiue Canons only to Practice is equall in not a few things and especially in this of Tithing to the prouing of the Practice of a custom from some consonant Law of Plato's common wealth of Lucians men in the Moon or of Aristophanes his Citie of Cuckoes in the clouds To supply therefore the want of a full and faithfull collection of the Historicall part was the end and purpose why this was composd which might remaine as a furnisht Armorie for such as inquire about this Ecclesiastique Reuenue and preferring Truth before what dulling custom hath too deeply rooted in them are not vnwilling to change their old akorns for better meat As touching the Argument of it the whole being XIV Chapters the first VII are thus filled the first hath what is in best autoritie of the ancients belonging to those Tithes paid before the Leuiticall
Tithe of Cladford is reckond as also of Adrintone and also the Tithes of Stanham are possessed there by one Richerius Parson of the Church of Stanham and vnder Terra Canonicorum de Tuinham is found Ad hanc Ecclesiam pertinet tota decima de Twinham tertia pars Decimarum de Holchest and in the Isle of Wight there VI. Churches belonging to the Abbey of Lire Decimas habent de omnibus redditibus Regis So in Bedfordshire the Church of S. Marie de Cormelijs hath diuers Tithes among its reuenues But the mention of Tithes where Churches are neuerthelesse spoken of is but very seldome through that whole Description and indeed in certain Counties as Somerset Deuon Cornwall and some few others you shal rarely haue a Parish Church noted but in others very often Churches are but very few examples of their hauing Tithes sometimes also grants of Tithes by Lay owners are there mentiond out of the vse of which it may be well thought that the moities or third parts of tithes belonging to this or that Church had their beginnings But thereof more particularly in the next Chapter where we speak of arbitrarie Consecrations And in most Appropriations of Parish Churches made in the Saxon times the ancieÌ„t course being to grant in appropriating Ecclesiam cum Decimis no mention is of Decimae but other possessions of the churches granted are most particularly inserted in the instruments of which some examples are published in Ingulphus Abbot of Crowland and very many occurre in Chartularies of old Monasteries But see also for this matter the autorities anon brought to another purpose in the XIV Chap. § 2. For the following age besides some examples related in the next Chapter out of which some kind of known payment at least to some Churches may be without difficultie collected that wee may here omit also the diuers Appropriations in the times presently ensuing the Conquest of Ecclesiae cum Decimis which denotes either some payment or interest of Tithes setled by Consecrations in them In the life of S. Cutbert Bishop of Lindisfarn writen by some Monk vnder Hen. I. it is related that in that Autors time a great penurie of food being in Lindisfarn that is in Holy Iland the Sea left vpon the shore LXV fishes wherof euery one was a sufficient draught for a yoke of Oxen and that a Monk came to the Lord of the adioining soile and desired the Tenth of that abundance so sent by the hand of God Saltem Decimas as the words are quod Legis Prouinciae consuetudo exigebat Ecclesiae requisiuit sed omnibus negatis rubore simul dolore confusus discessit here the practice of payment is noted by Prouinciae consuetudo and about the same time the fashion about Abingdon was to pay the Tithes to the Abbey due either as it was an ealder Minstre by K. Edgars Law or as they had been consecrated whereof more in the next Chapter by whole Hides and Acres His diebus saies the Chartularie of that Abbey raro à quoquam Decima messium vt lege praecipitur in Abbatia ipsa dabatur sed aut de Hidagio XL. manipuli quos vulgò garbas vocant aut Decima suae culturae Acra porrigebantur and for the time vnder Henrie the second an Epistle sent from Rome by Pope Alexander the third to the Bishops of Worcester and Winchester recites the generall institution which may be vnderstood for custom of the Church of England to be that euery Parishioner should pay his Tithe corne to his own Parish Cum homines so it speaks de Hortuna secundum generalem Ecclesiae Anglicanae institutionem de frugibus suis nouem partibus sibi retentis Decimas Ecclesiae cuius parochiani sunt sine diminutione soluere teneantur c. wherewith agrees the preamble of his Decretall remaining yet in the body of the Canon Law there he begins with Quod cum Parochiani vestri that is all the Parishioners within the Diocese of Canterburie Decimas bonorum suorum consueuerint Ecclesijs quibus debentur cum integritate persoluere nunc tam laudabili consuetudine praetermissâ quidam ex eis de lana de faeno de prouentibus molendinorum piscariarum Decimas ipsis Ecclesijs subtrahere non verentur hereto adde that of one of his predecessors Hadrian the fourth to the Archbishop of Canterburie where a Parochiall payment of Tithes seems to be spoken of as of known right and in a composition made by the Abbot of Euesham a Iudge Delegat from Pope Honorius in M.CC.XX. it is taken cleer that certain Tithes de iure communi pertinent ad Ecclesiam de Leonminstre eo quod sitae sunt infra limites Parochiae Ecclesiae de Leonminstre according as the Texts of the Canon Law of about that time expresly also affirme The composition was between some of the Diocese of Hereford and the Abbot of Wigmore like admissions of that Law are in other instruments in the Leger book of Reading for the Church of Lemster But conclude not out of them for practice without obseruation of the examples of the next Chapter And it appears that in 11. Hen. 3. a speciall grant was made by the King that Tithes of Hay and Mills should be paid from thenceforth in all his demesnes lands that is al occupied either by his Villains or Bailifes or by Lessees that came in after the grant which before then had not bin paid Dominê° Rex saies the record de Concilio Archiepiscoporum Episcoporum suorum concessit vt Decimae faeni molendinorum de singulis Dominicis suis in regno suo de caetero praestentur Et mandatum est balliuis de Corsham quod de Dominico suo de Corsham Decimas faeni Ecclesiae de Corsham dari faciant T. R. apud Westmonast XVIII die Maij. and according to this were diuers close Writs sent out in the following yeeres Of the times afterward wee find more certain testimonies shewing the common right of Tithes and that Parochiall as the Writ of Indicauit grounded vpon the Statut of Circumspectè agatis made in 13. Ed. 1. discouers that in and before that time the Parochiall Tithes were most knowne reuenue of euery Church with which agrees the ancient and present forme of the Count in a Writ of Right of Aduowson of a Parish Church wherein the Esplees are chiefely laid in Tithes because the Aduowson of the whole Tithes is no other then the Aduowson of the Church as Iudge Stoner sayes in Corbets case And by the practice of the Kingdome it became cleer Law as it remains also at this day that regularly if no other title or discharge to be specially pleaded or shewed in the Allegation of the Defendant might appeare euery Parson had a common right to the Tithes of all annuall encrease prediall and mixt accruing within the limits of his Parish without shewing other title to them in his
in lands of the Crown are at the arbitrarie disposition of the King such places haue been and I think are in diuers Forests And hereof saies Thorp in 22. Assis. pl. 75. Il soleit estre ley quant il auer certane place qui fuit hors de chescun Paroche come en Englewode huiusmodi en tel case le Roy ad doit auer les dismes de cest place nient l' Euesque de lieu a granter a que luy plest and relates further that the Archbishop that yeer made suit to the Councell to haue had such Tithes But vnder fauor this was vnderstood only of the Kings granting the tithes of his Demesnes occupied by his Bailifes according as in ancient time euery man els did for whateuer the words seeme to import Thorp speaks only of such lands of the possession of the Crown in which case it must not perhaps be vnderstood so much a part of the Royall prerogatiue as a right due to the King by common Law in regard of his possession of lands not limited to any Parish Neither doth he affirm that Tithes of such places are due to be paid to the Crown but that they are in the King to grant at his pleasure if growing in his demesnes But to this purpose is a notable case in the Parliament rolls of 18. Ed. 1. where Ralph Bishop of Carleol Petit versus Ecclesiae Priorem de Karliel Decimas duarum placearum terrae of the new assarts in the Forest of Inglewood whereof the one is called Linthwait the other Kirkthwait Quae sunt infra limites Parochiae Ecclesiae suae de Aspaterike c. and laies by praescription in his predecessors the Tithes of the pannage there before the assarting or culture Henrie of Burton also Parson of Thoresby claimed in Parliament the same Tithes as belonging to his Church and infra limites Parochiae suae and the Prior comes saies that Henricê° Rex vetus Henrie the first it seems concessit Deo Ecclesiae suae Beatae Mariae Karliel omnes Decimas de omnibus terris quas in culturam redigeret infra Forestam inde eos feoffauit per quoddam cornu eburneum quod dedit Ecclesiae suae praedictae c. Whereupon the Kings Attorney Dicit quod Decimae praedictae pertinent ad Regem non ad alium quia sunt infra bundas Forestae de Inglewood quod Rex in Foresta sua praedicta potest villas aedificare Ecclesias construere terras assartare Ecclesias illas cum Decimis terrarum illarum pro voluntate sua cuicunque voluerit conferre eò quod Foresta illa non est infra Limites alicuius Parochiae c. Et petit quod Decimae illae Domino Regi remaneant prout de iure debent ratione praedicta c. Et quia Dominus Rex super praemissis vult certiorari vt vnicuique tribuatur quod suum est William of Vesci Iustice of the Forest beyond Trent and Thomas of Normanuill his Escheator for those parts for so was the diuision anciently of Escheatorships were assigned Commissioners to enquire of the truth certificent Regem ad proximum Parlamentum c. So are the words of the Record Where the Attorney challenges not the right by prerogatiue but only in regard that the place being the demesne Land of the Crowne not assigned to any Parish the Tithes are grantable by the King as owner at his pleasure And so it well agrees both with that liberty challenged by King Iohn in the name of his Baronage that they might found new Churches at their pleasure in their owne fees before the establishment of Parochiall right in Tithes as also with the more ancient practice of the Kingdom whereby Tithes might not be parochially exacted nor were so reputed due but by the owners arbitrarily conueyed in perpetuall right And whereas Herle in 7. Ed. 3. fol. 5. a. sayes generally That no man might arbitrarily giue his Tithes that are not within Parochiall Limits but that the Bishop of the Diocesse should haue them It seems he spake suddenly as out of the Canon Law and not according to the Law of England And hee addes that it is against reason Que home ne purra my granter ses almoignes a que il vouldra And but two yeeres before that of Herle it was adiudged in the Kings Bench Quod de Decimis grossis Priori de Carleol praedecessoribus suis de dominicis Domini Regis infra Forestam de Inglewood prouenientibus extra quaruncunque Parochiarum Limites existentibus per Cartam progenitorum Domini Regis nunc concessis per Cartam ipsius D. R. nunc confirmatis c. a Prohibition should be granted against the Bishop of Carleol that claymed them It was vpon a Record sent thither out of the Parlament as in the Roll appeares largely And Edward the first gaue such Tithes of the Forest of Dene as encreased not within any Parish to the Bishop of Landaff by which title the Bishop afterward claymed them and no question was of that point But for common or waste ground the Parish whereof is not known the Statute of 2. Ed. 6. hath giuen the Tithe cattell therein depasturing to the Church within whose Parish the owner dwelleth CAP. XII I. Appropriations and Collations of Tithes with Churches The Corporations to which the Appropriations were made presented for the most part Vicars Thence the most of perpetuall Vicarages II. How Churches and Tithes by Appropriation were anciently conueyed from Lay-Patrons The vse of Inuestitures practiced by Lay-Patrons III. Grants of Rents or Annuities by Patrons only out of their Churches Of the Bishops assent More of Inuestitures A Writ to the Archdeacon anciently sometime sent vpon recouerie of a Presentment IV. Of haereditarie succession in Churches V. Laps vpon default of Presentation grounded vpon the generall Councell of Lateran held in 25. Hen. 2. What Praesentare ad Ecclesiam is originally Donatio Ecclesiae I. AS by Consecrations seuerally so with Churches in Appropriations Tithes were frequently conueyed and by expresse name as Ecclesia de N. cum Decimis or the like are vsually giuen Monachis Monialibus c. ibidem Deo seruientibus c. according to what is before noted of other Countries But this Mention of Tithes with Churches in Appropriations was rare or not at all till after the Normans In the Saxon times many appropriated Churches are found and that from between D.CC. and D.CCC. yeers since till the Normans but the Charters that conueyed or confirmed them haue vsually nothing but Ecclesias and so many Carues or Yard Lands or so much rent annext to them nor speaking at all of any Tithes transferd with them For speciall examples of such ancient Appropriations you may see the recitalls of the Charters of King Bertulph King Beored and King Edred made to the Abbey of Crowland and inserted in Ingulphus But after the Normans in Appropriations
it was constituted that Nullus Abbas nullus Prior nullus omnino Monachus vel Clericus Ecclesiam siue Decimam seu quaelibet beneficia Ecclesiastica de dono Laici sine proprij Episcopi autoritate assensu suscipiat quod si praesumptum fuerit irrita erit donatio huiusmodi c. and some allowance was giuen to these Canons by the King yet it is most certain thât the practice was for diuers yeers afterward otherwise and that Churches with Tithes were most commonly giuen by lay Patrons without the Bishops assent or institution and that as well by filling them with Incumbents as appropriating them to Monasteries Chapters or otherwise Beside the examples that might enough proue it and are obuious in old Chartularies the preamble of a Decretall of Alexander the third sent vnder Henrie the second to all the Bishops of the Prouince of Canterburie is herein full testimonie Ex frequentibus querelis saies he didicimus in partibus vestris consuetudinem prauam à multis retro actis temporibus invaluisse quod Clerici Ecclesiastica beneficia sine consensu Episcopi Dioecesis vel Officialium suorū qui hoc de iure possunt recipiunt minùs quà m deceat sollimitè cogitantes quomodo id à Patrum sanctorū est institutionibus alienum Ecclesiasticae contrarium honestati Vnde cum tu frater c. where you see plainly that course of inuestiture or donation by the Patron without presentation was consuetudo quae a multis retro actis temporibus inualuerat which shews it to haue been then a part of the secular Law though the iudgment of the Bishops and the Pope titles it Praua agreeing to this are other testimonies in Gregories Decretalls and that in Epistles to all the Bishops of England to forbid it and it is specially obserueable how ill the Baronage of England tooke it when Anselm vnder Henrie the first would haue through Papall Canons inhibited the practice of inuestitures vsed by the King and other lay Patrons which is recorded in an Epistle of that Anselm directed to Pope Paschal the second thus speaking Domino Reuerendo Patri diligendo Paschali summo Pontifici Anselmus seruus Ecclesiae Cantuariensis debitam subiectionem orationum assiduitatem Postquam reuocatus ad Episcopatum redij in Angliam ostendi decreta Apostolica quae in Romano Concilio praesens audiui ne scilicet aliquis de manu Regis aut alicuius Laici Ecclesiarum Inuestituras acciperet vt pro hoc eius homo fieret nec aliquis haec transgredientem consecrare praesumeret Quod audientes Rex Principes eius ipsi etiam Episcopi alij minoris ordinis tam grauitèr aceperunt vt assererent se nullo modo huic rei assensum praebituros me de regno potiùs quam hoc seruarent expulsuros à Romana Ecclesia se discessuros vnde reuerende Pater vestrum petij per Epistolam nostram consilium c. This is in the Ms. Volume of Epistles of Anselm fairly writen by Iohn de Grandisono Bishop of Excester in the yeer M.CCC.LXIV in which are aboue C. more then are published in his printed Works they menaced the Archbishop with banishment and the Pope with reuolt from his See only for their withstanding that practice of Inuestiture whereof for so much as concernes Abbeies Priories or Bishopriques in giuing them by the ring and baston much testimonie is in the storie of about that age and the Kings remission of the Inuestitures of those great dignities is frequent but for Parish Churches of which we here chiefly speake the common occurrences of Inuestitures mention them but litle But for the vse of them known also by the name of Institution see the Fine anon transcribed of 33. Hen. 2. as also specially a commission sent by Pope Alexander the third to the Dean of Chichester touching a Parson that was legitimè institutus à Willielmo Nobili viro and had resigned Personatum Capellano Domini But this course of Inuestiture by Lay men after Anselmes time began to bee of lesse vse and some obeying the Canons presented others still collated by Inuestiture till about Richard the first and King Iohns time whereof more in the next Paragraph To the Lay Patrons challenged right of such Inuestiture of Churches and Tithes belongs specially the Granting of Rents and such like out of Rectories by the Patrons only and the Sonnes or others Succession in Parish Churches after the death of their ancestors of both which litle known vulgarly ancient warrant is yet remayning III. For the first in the Chartularie of the Priorie of S. Needs in Huntingdonshire one Robert Fitz-water about King Iohns time giues to the Priorie six marks of siluer nomine certi beneficij in Ecclesia de Wimbisse annuatim percipiendas per manum personae eiusdem Ecclesiae Quare volo saies he vt quicunque in praefata Ecclesia de Wimbis ad praesentationem meam vel haeredum meorum persona instituta fuerit praenominatis Monachis S. Neoti de supradicto beneficio VI. marcarum fidelitatem faciat saluo mihi haeredibus meis iure aduocationis praesentationis c. and diuers other such like are Neither haue I met with a precedent of those times wherein the Encumbent was Grantor as at this day by the Cōmon Law the Church being full I think he must but most vsually a prouision by the Patron was inserted to this purpose that the seuerall Encumbents should by Oth bind themselues to the true payment nor was it so necessarie to haue the ordinaries assent when that which the Ordinarie by the practice of the later Law is to do in his Institution was in frequent practice supplied by the Patrons Inuestiture Out of which may be the better vnderstood that part of the new Canon in the Synod of Westminster held vnder Richard Archbishop of Canterburie in 21 Hen. 2. Nulli liceat Ecclesiam nomine Dotalitij ad aliquem transferre that is That no Patron should giue his Church as it were in Frankmariage or make of it a Donatio propter nuptias as the Ciuilians call it to remain with the husband of his Daughter or Kinswoman during his life How could such a gift haue at all been made by presentation as of later time it is vnderstood Institution or Induction and a most obseruable example of this matter is in a Fine of 33. Hen. 2. in these words Haec est finalis concordia facta in Curia Domini Regis apud Cantuariam anno Regni Regis Henrici secundi XXXIII die Venetis proxima post festum sancti Iohannis Baptistae Coram Radulpho Archidiacono Colecestriae Rogero filio Reinfri Roberto de Witefeld Michaele Belet Iusticiarijs Domini Regis alijs fidelibus Domini Regis ibidem tunc praesentibus inter Priorem de Lewes Monachis eiusdem loci Willielmum filium Arthuri quem Richardus de Budegintun pofuit loco suo
Archdeacon of Leicester while the Bishoprique of Lincolne was void which shewes that those times were the infancie of the exact course of Episcopall Institutions as they are at this day vsed Neither had these any priuiledge of Institution as the Archdeacon of Richmond had anciently giuen him or the like At this day and from long time before the Archdeacon only Inducts as the Books common practice shew But thereof thus much by the way IV. For that other of Succession in the Benefices of the Ancestors doubtlesse that was often when the father or other ancestor was Incumbent and Patron and by that challenged right of the time of Inuestiture and sole disposition of the Church would either in his life time conuey the Benefice to his sonne or heire by grant which by the practice of the time supplyed it seemes as well a Resignation as Presentation Institution and Induction or would so leaue the Aduowson to discend to his heire that he being in Orders might retaine the Church in his owne hands according as the Law then it seems permitted Against this was a Canon made in the Nationall Synod at Westminster in 3. Hen. 1. Vt filij Presbyterorum non sint haeredes Ecclesiarum Patrum suorum And another in 25. Hen. 1. held vnder the Popes Legat. Sancimus as the words are ne quis Ecclesiam sibi siue Praebendam paterna vendicet haereditate aut successorem sibi in aliquo Ecclesiastico constituat Beneficio Without that challenged right of Inuestiture supposed in the Incumbent hauing also the Patronage which supplyed all that the Patron Bishop and Archdeacon at this day do in filling a Church how could any Parson make to himselfe a successor or an heire to haue colour to claim the Incūbencie from his ancestor To this purpose may be well rememberd a passage in a verdict found in Rot. Placit 6. Rich. 1. Rot. 1. of such a kind of conueyance of S. Peeters Church in Cambridge the words are Iuratores benè sciunt quod quidam Langlinus qui tenuit Ecclesiam illam qui fuit persona illius Ecclesiae dedit Ecclesiam illam secundum quod tunc fuit mos Ciuitatis Cantebrigiae cuidam parenti suo Segario nomine qui illam tenuit per LX. annos plus fuit persona illius Ecclesiae ipse posteà dedit Ecclesiam illam Henrico filio suo qui illam tenuit per LX. annos ipse in ligea potestate sua dedit illam Hospitali Cantebrigiae per Cartam suam idem Hospitali habet Ecclesiam illam They discreetly find the custome of the Citie to maintaine the Conueyance supposing it seems that the custome would help the last Grantors title although the Common Law which had by that time receiued some change herein by force of the Papall Decrees should not haue allowd it I know in the Canons another thing is also vnderstood in this matter of Succession that is the irregularitie of the sonne of a Clerk but that can extend only to the matter of Illegitimation vpon Mariage forbidden to the Clergie For which point alone the Bishops refusall had been the best helpe but that indeed the other kind of disposition of Churches by Inuestiture preuented his refusall when Presentation was not made to him V. But after such time as the Decretals and the encreasing authoritie of the Canons about the yeer M.CC. had setled the vniuersall course here of filling of Churches by Presentation to the Bishop or as it seems sometimes it was to the Archdeacon or to the Vicar of the Bishop or Gardian of the Spiritualties that vse of Inuestitures of Churches and Tithes seuerally or together practiced by Lay men was left off and a diuision of Ecclesiasticall Secular right from thence hath continued in practice Neither did the King afterward much lesse common persons fill their common Parochiall Churches without such presentments from Bishops Parochiall Churches for of speciall donatiue Chappels we here speak not neither were Appropriations of Churches Tithes afterward allowd that had not confirmation from the Ordinarie immediat or supreme And in the same age also came in the Law of the Laps whereby the Bishop is to collate after six moneths vpon the Patrons default it being before at his libertie to fill his Church at his pleasure neither was he confined to any time That time of Laps was according as the vse of Presentation grew by degrees setled receiued into the Laws of England out of the generall Councell of Lateran held in 25. Hen. 2. vnder Alexander the third to which foure Bishops according to the ancient vse of this Kingdom that is Hugh Bishop of Durham Iohn Bishop of Norwich Robert Bishop of Hereford and Reinold Bishop of Bath were sent as Agents for the Church of England By that Councell after vacancie of six moneths the Chapter is to bestow those Churches which the Bishop being Patron had left so long void and vpon their default the Metropolitan but no word is of Lay Patrons in it Yet by reason of the Autoritie of that Councell and of a Decretall of the same Pope which speaks of like time vpon default of Lay Patrons it hath beene since taken here generally that after vacancie of six moneths the next Ordinarie is regularly to collate by Laps Which perhaps was receiued for a Law to continue as it hath done in the Councell or Conuocation at Pipewell held in the first of Richard the first and some ten yeers after that Generall Councell of Lateran For in that of Pipewell the principall thing in hand was the prouiding for Churches vpon death of their Pastors Habitus est saith Ralf de Diceto Dean of Pauls vnder King Iohn generalis conuentus iuxta dispositionem Regis Archiepiscopi XVI Kal. Octobris apud Pipewell vt de consilio vacantium per Angliam Ecclesiarum haberetur tractatus I know it was for many Churches then void but it is like enough that according to the generall Councell this Law was then here receiued but that 's only a rouing coniecture and so I leaue it and as in the Canon Law the Councell of Lateran which must be vnderstood that of Alexander the third is commonly affirmed for the autoritie of the originall of the right of this Laps in the case of Bishops specially and Chapters so is it in ancient moniments of our Laws also in the case of Lay Patrons Ante Concilium Lateranense saies Bracton nullum currebat tempus contra praesentantes And in Placit de Banco Mich. 3. Ed. 1. Rot. 105. Staff The Bishop of Couentrie and Lichfield pleads a collation by laps autoritate concilij against the Prior of Landa to the Church of Patingham and in the same Plea Rolls of Pasch. 5. Ed. 1 Rot. 100. Linc. in a quare non admisit by Alienor the Queen Mother against the Bishop of Lincoln for the Church of Orkestow the six Months and the computation
of them which is there adiudged according to that in Catesbies case is referd to Concilium Apostolicum which can be no other then that of Lateran howeuer the printed Copie of that which we commonly call Breton talks of the Councell of Lions for the Director of the Laps whereas indeed the Mss. haue for de Lions de Lautr which is doubtlesse for de Lateran yet also in the Rolls of the Common pleas of Pasch. 9. Ed. 1. Rot. 58. Suthampt. the Archbishop of Canterburie defendant in a Darrain presentment against the Abbot of Lyra pleads that the Church of Godeshull est plena ex collatione ipsius Archiepiscopi ratione Concilij Lugdunensis and being demanded by what article of the Councell would not thereto answer wherupon after long deliberation iudgement is giuen for the Abbot But in the same Plea the Law and custom of England for the six months time of Laps which they call there Consuetudo regni Angliae is referd to a Councell but none is specially named sauing that of Lions But although from Canonicall autoritie the Laps was thus receiud into our Laws yet it hath been no otherwise then the Baronage of England would permit it for the Canons otherwise as at this day they are giue but foure months to a Lay Patron and six to an Ecclesiastique which difference the Law of England would neuer permit as also neither that of the right of collation which the Chapter is to haue vpon default of the Bishop howeuer the Pope would haue put it here in execution according to the words of the Councell which you may see in the autorities before noted out of the Text of the Canon Law and therefore the Law of Laps is well referd rather to Consuetudo Regni Angliae by which title other parts of our Laws were often named that were of later beginning then to the Councell although thence doubtlesse as is shewd it had its originall But although now what through the Decretalls and other Canons against Lay mens Inuestitures what by reason of the Law of Laps the Patrons former interest or challenged right was much diminished in the Church and the disposition of the reuenues of it for it followd also that the Ordinaries assent was requisite yet the formulae or precedents vsed from ancient time in the recouerie of presentations still retaine to this day Characters in them of that Inuestiture as the quare impedit that is Praecipe A. quod iustè c. permittat B. praesentare idoneam personam ad Ecclesiam de N. quae vacat ad suam spectat donationem c. Where Donatio still sauors of the ancient right of Inuestiture agreeing whereto is that of Ecclesiam concedere vsed elswhere in our Law and attributed to the Lay Patron Neither doth praesentare ad Ecclesiam originally denote otherwise then the Patrons sending or placing an Incumbent into the Church and is made only of repraesentare which in that Councell of Lateran and elswher occurres also for praesentare repraesentare is properly to restore giue back or repay as reddo or repraesto whence praesentare taken in the barbarous times denoted as dare or donare so that idoneam personam ad Ecclesiam praesentare was all one with idoneam personam ad Ecclesiam dare or donare or in Ecclesia constituere or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as the Apostles word is to Titus where he bids him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is appoint or constitut or indeed present Priests or Encumbents in euery Citie for he that there should turn it by present might so keep the propertie of the word in both tongues though not as present is now restraind this is iustified out of an old Glossarie that turnes Repraesento by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for then cleerly 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is Praesento while praesentare so signified also in practice that is in the time of the vse of Lay Inuestitures all Churches so giuen were properly Donatiues which attribute hath been since restraind chiefly to such free-chappels as the Ordinarie had no interest in but are collated or giuen by the act only of the Patron and this interpretation of praesentare is iustified also out of the quare impedit vpon a right of collation which is but a donation by the Bishop wherin the words are also quod permittat praesentare ad Ecclesiam c. Donation which is meerly as Inuestiture in regard of the Bishop is there called Presentation So also is the Law in the Kings Case and of common persons being disturbed to collate by Letters Patents to their free Chappels or Donatiues the Writ in those Cases is only praesentare which confirms that it denotes Donation or Inuestiture But in the Counts vpon such Writs the speciall matter must be discouered The like Law is in the Case of him that hath the Nomination of the Clerk his Writ is also praesentare although another haue the right of that which is now known by the bare name of presentation Nomination indeed or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 being the true and eldest name found in the Laws belonging to the Church that denote filling or presenting to a Church in that sense as Presenting is taken for giuing or inuesting For in the primitiue times when the Patron had founded his Church he nominated whom he would haue receiued into Orders for the seruing of that Cure and then if the nominated were found worthy hee was receiued into Orders for that purpose which Ordination turnd afterward into Episcopall institution as is before declared that nomination was indeed as Inuestiture or giuing the Church so is the word vsed in the Laws and agreeing to them is the purer time of Latin wherein Nominatio is for giuing a Place or Office that is void And as these phrases of the Writs tast of the ancient right challenged by the Patron so do some assertions in our yeer books of later time as that of entring into an Aduowson by entring into the Church of passing an Aduowson by liuerie of seisin at the Church-dore of the Patrons entring into the place of foundation if the Church cease to remain hallowed and the like And to like originall may you referre those of the Kings presentations which haue Dedimus concessimus in them yet retained although the force of the words by the later Law make but only a presentation But the Law is now setled neither with vs hath the Patron alone now any prerogatiue or direct interest in the Church or the reuenues beside his right of Aduowson or Presentation to the Bishop by whose institution and the Archdeacons induction euery Church regularly is to be filled Neither for ought I haue heard hath he in our Law any of those Droicts honorifiques which the French allow him in Precedence Seats and the like These particulars of Benefices and Aduowsons had here their place both because in the ancient
in a hand of about Henrie the fifth in the Booke of Osney which would as well giue light to the course of Arbitrarie Consecrations before largely opened as to these Infeodations if it were of sufficient credit but you shall first haue it compendiously deliuered and then iudge of it This title is put to it Qualitèr Laici ad id priuilegium peruenerint quod locis Religiosis illas Decimas conferre possint Then sayes he that writes it he had heard from a good Ciuill and Canon Lawier that had been present at the Disputation of the point in a case happening between a Religious house and a Parson for Tithes in the Parsons Parish who claimed them iure communi that the Aduocat for the Religious house being put to make a speciall title against the Parsons common right told the Court a long storie of Easterne holy Warres about Pipins time and interposed somwhat of Charles Martell and concluded that the Pope and the Church euery where graunted in reward to the Christian Princes for their Barons Knights and Gentlemen that spent their blouds labours and estates in those Warres the priuiledge of arbitrarie disposition of the Tithes of their lands by reason of which Graunt they afterward made not only Arbitrarie Consecrations of them but also Infeodations into Lay hands according as the common opinion among the Canonists is too confidently receiued at this day Then he tells vs that before rememberd of the Tithes in Bampton and cites some texts out of the Decretalls that touch Infeodations Next he relates that among the Princes of the holy Warre about Martell and Pipins time the Duke of Normandie was a speciall one whence hee had also that priuiledge touching Tithes pro se ac suis as the words are And lastly to bring it into England hee thus concludes Et cum Dux Normanniae Willielmus ad conquisitionem Angliae venisset quidam Miles eius Robertus d'Oylleye nomine malens suas Decimas Deo commendare quam contra naturalem Ecclesiae consuetudinem ipsis vti eas Ecclesiae S. Georgij quam in Castria Oxenford construxit contulit Et posteà ad Monasterium Osney per Diocesanum Capitulum Lincoln ac etiam per Aduocatum Canonicè deuenerunt But it all tasts of nothing but ignorance For what touches Martell and his time generally enough alreadie is said And see but what a bold ignorance here was to tell vs that the Duke of Normandie was one of the greatest personis Regum exceptis as his Language is that went in the holy Warre in succursum Ecclesiae Romanae in those times of Pipin and Martell I would he durst haue told vs also who had then been Duke of Normandie Neither that title of Dignitie nor that name of the Countrey were till about CL. yeers after Martell at all known The Territorie being then vnder the French Kings who long after gaue it to the Normans and erected it into a Dukedome Indeed the Duke of Normandie had good place in the later holy Warres about M.XCV. but did not that make this Aduocat say that the Duke of Normandie was a speciall Prince in the other also of Martell's time Such of the later midle times stand not much vpon the mingling of Stories that differ in themselues euen many whole ages Besides he tells vs of strange Princes names of the East that made the Warre against the Church Plainly the most pretended cause of the rest that erre herein as much as hee doth is the Saracenicall Warre in Martell's time and that out of Spain not from the East And had it been so vnder Martell's time as it is vsually affirmd what had that been to England But you see his prouidence for that matter where he deriues it from the Duke of Normandie But what though there had been some such Duke of Normandie whose Successor had afterward either conquered or enherited England had therefore the old supposed priuiledge of retaining or disposing of Tithes been thence communicated to his subiects of England and that to the losse of the Church here that neuer could haue gotten good by the supposed cause of the priuiledge All the Canon and Ciuill Law that the Aduocat had could neuer haue proued such a consequent It will still remaine most probable if not cleere that what Infeodations were in England had their originall as well out of the right of arbitrarie disposition of Tithes challenged by the Laitie without the grant of the Pope or Church as out of Compositions or Conueyances from the Clergie according as in other States For no sufficient Storie no credible Moniment no Passage or Testimonie of worth can iustifie that generall right of retainer or disposition to haue been giuen by the Clergie or Pope vpon any cause whatsoeuer though the Canonists and others that follow them cry against it vsque ad rauim The vse of Infeodations before those later holy Warres we haue alreadie shewd And that no vse of them could be about Martell's time is not lesse apparant by what is also before deliuered But beside this blind testimonie of the ground of Consecrations or Infeodations for England especially you may take that as it is also of Lindwood who thus speaks touching the Portions which Religious houses had Hae Portiones saith he potuerunt peruenisse ad locum Religiosum de concessione etiam Laici cum solîus Diocesani consensu de Decimis vel prouentibus quas Laicus talis ab Ecclesia alia habuit in feudum ab antiquo according to that in tit de his quae fiunt à Praelatis sine ass cap. c. cum Apostolica And hee addes that this is only true if those Tithes were infeodated before that Councell of Lateran of MC.LXXIX And then concludes with Nam ante illud Concilium bene potuerunt Laici Decimas in feudum retinere eas alteri Ecclesiae vel Monasterio dare Non tamen post tempus dicti Concilij For his interpretation of the Councell enough before towards the ends of the VI. and X. Chapters But doth not Lindwood here suppose ancient Infeodations of Tithes at least created by Churchmen in England Doth he not thence fetch the originall of Portions belonging to Religious houses in England commonly though he writ as a Canonist yet he addes the speciall custom of England if he speak of any Canon Law which he thinks had not place here but he excepts not England in this but implies it therefore doubtlesse he supposed a common vse of ancient Infeodations among our Ancestors but I doubt he had not better ground for it then what he found in others of his profession that had rememberd the frequent vse of Infeodations in other States before that Councell and he so applied it equally to his own Countrie and with them takes the Infeodations to haue had originall only from the Grants of Church-men therefore I value his testimonie here but as of a common Canonist and not sufficient to satisfie vs touching our
Churches the Cure being there serued by some Monke or Vicar instituted vpon the presentation of them which had the granted portions made those portions at length also in many places be reputed for Parochiall Tithes due in regard of those Parochiall Chappell 's But what course soeuer they took it seems certain that the Titles deriud from Lay consecrations were after this third CCCC yeers carefully conceald by the Possessors in such publike records of their reuenues as were of more common and open vse in their legall proceedings at the Canon Law howeuer they remaind still in their ancienter and more secret Chartularies and with vs I haue very rarely scarce at all seen an Instrument of them in their Lieger books or otherwise writen in a hand that is later then King Iohns time the most are before him But I haue seen Catalogues of the time of Henrie the third and Edward the first of many large portions of Tithes that doubtlesse came first from arbitrarie Consecrations and that through most of the Dioceses of England wherein not the least mention is of any Grantor only possession is rememberd and that by prescription was to be iustified Some Titles also I haue seen made to Tithes in Libells of the time of Henrie the third especially in the Lieger books of Reading Osney and Pipewell but in none of them euer any deriud from Consecrations Neither indeed in that ancientest Formularie of the Canon Law I mean Durand that liued about CCC.L. yeers since is any other Libell for Tithes then such as make the Title Canonicall None that touches Lay consecrations which diuers yeers before his time became as much concealed in legall proceedings of the Canon Law as they had been in the more ancient times desired and hunted after by such as were enricht by them This of arbitarie Consecrations I presume is like strange Doctrine to most men it may well be for the truth of it I think was neuer before so much as pointed at by any that hath writen of any part of our subiect But I doubt not but euery vnderstanding Reader will think these things here now shortly noted on them to deserue his consideration which I desire him also to referre to the XI Chapter and also let him apply to them the Admonitions toucht presently in Appropriations For Appropriations which are in the 3. § they consisted as you see there in the XII Chapter for the purpose either in conueying Parish Churches appropriated with Tithes setled in them somtimes by a continuance of paiment sometimes by Consecrations or by both or of Churches that were then appropriated when according to the vse of the time none or few Tithes were paid to them yet afterward in the hands of the Monks or such like when the Canons for paiment of Tithes came into force got Parochiall paiment to be made to them or thirdly in passing of Tithes formerly created and in esse So that as by Consecrations Tithes newly created were setled in Monasteries and the like so by Appropriations Churches with Tithes in esse or with the pretended right to them and Tithes alone but formerly in esse were conueid to them The whole Appropriation of Tithes with Churches or Churches alone we shew in that ancienter time was made by the Patron The Churches with Tithes by the name of Ecclesia cum Decimis when Tithes were paid to it was in point of interest giuen by him And many more Churches haue been so appropriated then by the later and more known course Neither I think haue many new Appropriations been since made not many in regard of the number of the other But deserues not this then another kind of consideration then is commonly dreamt on among them which make Tithes due by the Diuine Morall Law to the Euangelicall Priesthood if they be so what had the Patron as Patron were he either Temporall or Spirituall to doe with them in conueying them to Monks Friers Nunnes poor people in Hospitals none of these by that name are of the Priesthood and that way they were so equally due to the ministring Priesthood before the Patrons title to the Church that what euer he could do after he were Patron although also his act were confirmd by whom you will could not at all it seems touch them or conuey them from him that should afterward exercise the spirituall function of the Church Consider Tithes so due and how could any Monasterie deriue to it selfe any Title to that selfe same Tithe that was so due to the Priesthood And if it had not the selfe same Tithe but by prescription or other ciuill Title hauing the glebe of a Church had also a profit by the name of Tithe as annext to the Church no otherwise then other Lay endowments for no man can doubt but that any kind of persons may inioy a profit vnder the name of Tithe or Tenth aswell as a Rent of the Ninth part or of the Eleuenth who then is it that now detains the Tithe due by the Diuine Morall Law in cases of Appropriations doth the Monasterie or those which haue such appropriated Tithes by conueyance from it or rather doth not the Parishioner that is bound to whatsoeuer is by that Law due although he pay neuer so many other Tenths due only by some ciuill Title or by that Opinion is not he that receiues the appropriated Tithe bound to pay a Tenth of it to the Minister and the Parishioner a Tenth of his Nine parts I affirme nothing here it is no place for me to do it But let these things be first considerable to euery one that talks of Appropriations and concludes Tithes due iure diuino morali And for Lay mens right to the appropriated Tithes that is such as did either vest in the Monasteries by Appropriations or at least haue been enioied by reason of them let him examine it rather thus may that which either Grant or Prescription or other ciuill Title once setled and so euen consecrated to God and holy vses although abusd be afterward prophaned to Lay hands But it is a grosse error to make it cleer as many do that if Tithes be not due to the Priesthood iure diuino morali then Appropriated Tithes may be still possessed with good conscience by Lay men and that if otherwise then they may not For though they be not due so yet is the consecration of them in the Appropriation nothing for if they be not due so then it will be cleer I think to all that they might passe in the Appropriation as other things subiect to the Titles of humane and positiue Law The many execrations annext to the deeds of conueyance of them and pourd forth against such as should dâ—uert them to prophan vses should be also thought on and let them remember also who saies that it is a Destruction for a man to deuoure what is consecrated To what we haue here of Episcopall right pretended to Tithes especially in Germanie of
their children also and in the gouernment of the King that was declared by Samuel it is said He will take the tenth of your Vineyards and giue it to his chiefe Seruants and to his Officers But where shall you find the least mention of Infeodations made of such kind of Tenths or any touch of them in the complaints of the Clergie against Infeodations and withall nothing hath beene of lesse practice then giuing away in perpetuall right any such reuenue due to any Crowne or State only by speciall right of Supreme Maiestie But admit these had their originall this way or any other as you will vnlesse they can be proud to haue been made of the verie selfe same Tithe which is due to the ministring Priesthood which can neuer been downe sauing only where the infeodated Tithe was at first receiud and possessest by the Church by force of the Law of Tithing not by arbitrary Consecration in which case also it is considerable whether a Lay man could be at all capable of the fructus only of them if due by an immediat expresse Law of God I see not how they shuld more preuent Parochial paiment to the ministring Priest then the paiment of rents in Terragies or quantities in Corn vnder the name of tiths to landâ—ards shuld diminish the right of the spirituall Tithe which way had either such a fift as was Pharohs or the tenth spoken of by Samuel to be taken by the King touched the Tithe due by a superior or former law to the Leuitical Priesthood both might wel haue stood together might not so nay should not so Tithes remain paiable froÌ„ the possessors of the nine parts to the Euangelical Priesthood notwithstanding infeodations or any reseruations whatsoeuer if they be due by a superior or former Laws especially if due by the Morall Law and that Law should bee vrged rather against the Tenants of the Land then against the Pernors of the feudall Tithes And that common distinction of the Canonists of ius percipiendi fructus Decimarum here is a mere shift and nothing satisfies vnlesse they could also teach vs how the fructus were the verie selfe same alwaies in Infeodations and that they were deriued from a ius percipiendi in some Clergie man Perhaps too much of these things which are litle or nothing applicable to England where we haue scarce any example of a Tithe that was in its nature feodall other then in such as were taken from Monasteries by the Statuts of Dissolution and may still be calld as originally by the name of Consecrated or Appropriated Tithes although now Infeodated But thereof see the XIII Chapter To the 5. § that speaks of Exemptions for matter of story may be added that of the Hospitalars After their exemptions giuen them with the two other Orders about the yeer MCLX. in the Eastern parts they tam Domino Patriarchae quam caeteris Ecclesiarum Praelatis multas tam super Parochiali iure quam super iure Decimationum caeperunt inferre molestas c. and receiud such as were excommunicat for non-paiment of them De praedijs autem suis vniuersis redditibus quocunque iure ad eos deuolutis omninò Decimas negabant Where by the way note that in this Eastern Church which after Hierusalem was recouered and made a Kingdome subiect to Western Princes should haue been fashiond according to the Canons of the Western Church Tithes were now appointed paiable although no authentike Law of that old Eastern Church once mentions them But both in this and other things the people of that Church were stil notwithstanding the new Kingdome of Hierusalem possessed by Europians and the Popes authority extended to them most obstinate refractarie against the policie and Institutions offerd them either in command or example from the Western After the Opinions of the age in the 6. § the Laws both Imperiall Prouinciall and Pontificiall follow in the 7. vpon which let it bee considerd whether a consecration of Tithes were so made by the power and law of the Church and Common wealth or both in seuerall Territories according to the Laws extended that no prophanation or detaining them or any part of them might afterwards be lawfull and the like should be carefully thought on in the 1. § of the VII Chapter and in the VIII Chapter which hath the Lawes of England for the same purpose The force of the words of all those Laws the Autoritie that made them and the Territories to which they were extended are especially to be obserud by euerie one that here looks after humane positiue Law For manie talke and write of that and tell vs here of ius Ecclesiasticum at least if they faile in their Arguments from Ius diuinum but whence that Ius Ecclesiasticum is and where or when made they little enough know For what hath a Prouinciall Councell of one Nation to doe with another What hath the Imperialls of the old French Empire to doe with England Nay what hath the Popes Decrees to do here But because there was a time when their autority was more largely acknowledged their Decrees that bred much of what now iustly continues in some States which also iustly now denie their autoritie remaine most obseruable and wee haue giuen them in their places Of the VII Chapter IN the last CCCC yeers beside the establishment of Parochiall right in Tithes and the various Opinions touching the immediat Law whereby they are due the Practice of most Christian Nations as it might be had out of their Laws and Lawiers is faithfully related And to what is there brought adde that of the Law of France wherby the right of the Tithe of all the Minesis claimd by the King as a droit de Souerainte according as it is declard by two Edicts published of Charles the IX and verified also by the Parlament of Paris according also the old Imperiall Law was But through all here you may see that the Customes Statutes and Common Laws especially of France Italie and Spaine and of most other if not all States permit not so fauourably for the Clergie an exaction of them or suite to be so generally brought for them as the Laws of England did before the Statutes of Dissolution of Monasteries and still do if you exempt those cases which are founded only vpon those Statutes What Statute or practice is in this Kingdome that equals the Carolines of Spaine or the Philippine of France which are generall Laws for Customes quatenus Customes de non Decimando And whereas England vntill the Dissolution had scarce a continuing Infeodation into lay hands of which see the XIII Chapter nor could a lay man by the common Law before the Dissolution make any title to Tithes as to lay inheritances in other Nations Tithes infeodated haue been from aboue D. almost DC yeers frequent in vse and still continue legally in lay hands and are subiect wholly to Secular Iurisdiction as
cleere this grosse error of such as yet pretend to know more then vulgarly but can make no difference twixt the vse of Laws in studie or argument which might equally happen to the Laws of Vtopia and the gouerning autoritie of them If any desire to search further here beside the Autorities cited in the Margine let him especially see I. Baptista à Villalubos 〈◊〉 Antinomia Iuris regni Hispaniarum ac Ciuilis note especially la Conference du droit Francois auec le droict Romaine composed by Bernard Automne and obserue both the Volumes of Statutes and Ordinances of Spaine France Scotland Poland and of other Countries together with the various Prouincial Customes especially in France with the Arrests Decisions and Playdâ—â—es of that Kingdome and he shall soon be confirmed in that which a great Ciuilian of Italie is ingenuous enough to tell vs Hispania Anglia Scotia Balia Hibernia Alemania Datia Suetia Vngaria Boemia Polonia Bulgaria non vtuntur legibus seu iure ciuili sed specialibus consuetudinibus 〈◊〉 statutis that is they are all gouerned by their owne common Laws 〈◊〉 that most learned Frier Bacon of his time Omne regnum habes sua 〈◊〉 aquibus laici reguntur vt iura Angliae Franciae ita fit Iustitia in 〈◊〉 per Constitutiones quas habent sicut in Italia per suas This was then and is now true And the Interpretation of those common Laws in most places saue England and Ireland hath of late time been much directed by the reason of the Imperialls and only by the reason of them not by their autoritie and that also in case when they are not opposite at all to the common Laws but seeme to agree with the Law of Nations or common reason And this vse of them at the furthest began in its yongest infancie not C.D.LX. yeeres since For before that euen from Iustinians time they lay wholly out of vse sauing only that some pieces of them with the Interpolations of Alaricus and his Chancelor Anian together with Lumbardine Additions and Interpretations had their power in some parts of Italie and the Empire But for about D.C. yeeres together that is from Iustinian till Frederique Barbarossa no Profession was of them in any Vniuersitie no Doctorship no other Degree taken in them But after that time they grew into a common Profession in this Western world although by their own autoritie they are confined to Rome Constantinople and Berytus and euen here in England were about Henry the thirds time often applied to the common Law in discourse and argument as you may see in Bractâ—n his frequent quotations of them And heretofore some texts of them haue been in our Courts cited not only as at this day sometimes is done when the words only of some of the regulae iuris is brought into an argument but the Title and Law after the Ciuilians fashion hath been rememberd at the Barre and so afterward exprest in the Report as I haue seen in an example or two in the Mss. yeers of Edward the second Yet notwithstanding that it is cleere that England was neuer gouerned â—y the Ciuill or Imperiall Law as it was also affirmd by the vpper House of Parlament in 11 Rich. 2. where the King and Lords protested also that their meaning was it neuer should be gouerned by it Of the VIII Chapter OVt of this fullnesse of Laws that were made for Tithes in England let it be considered by such as enquire here de iure what interest was of right setled in the Clergie by them howsoeuer they were litle obeyed And by what Autorttie made we haue carefully added still what might help to a iudgement in that also and how extensiue in regard of Persons and Territorie they were and some such other and how farre the Tithes might be after such Laws detained or made subiect to Customes or possessed as things of common vse The Laws of before as well as of after the Norman Conquest as it is vulgarly called are here gathered and are perhaps equally obseruable as the rest in the consequent of a generall consecration of Tithes to the Church in England For neither were the Laws formerly made abolish by that Conquest although by Law of Warre regularly all Rights and Laws of the place conquered be wholly subiect to the Conquerors will For in this of the Norman not only the Conquerors will was not declared that the former Laws should be abrogated and vntill such declaration Laws remaine in force by the opinion of some in all Conquests of Christians against Christians but also the ancient and former Laws of the Kingdome were confirmed by him For in his fourth yeere by the aduise of his Baronage he summoned to London Omnes Nobiles sapientes lâ—ge suâ erudâ—tos vt eorum leges consuetudines audiret as the words are of the Book of Lichfield and afterward confirme them as is further also related in Roger of Houeden Those Lege suâ eruditi were common Lawiers of that time as Godric and Alswin were then also who are spoken of in the Book of Abingdon to be Legibus patriae optime instituti quibus tanta secularium facundia praeteritorum memoria euentorum inerat vt caeteri circumquaque facilè eorum sententiam ratam fuisse quam ed cerent approbarent And these two and diuers other Common Lawiers then liued in the Abbey of Abingdon Quorum collationi nemo sapiens sayes the Autor refragabatur quibus rem Ecclesiae publicam tuentibus eius oblocutores elingues fiebant You must know that in those daies euery Monk here in England that would might remaine so secular that he might get money for himselfe purchase or receiue by discent to his owne vse And therefore it was fit enough for practicing Lawiers to liue in Monasteries But what had those praeteritorum memoria euentorum that is Reports and adiudged Cases of the Saxon times auailed in their skill if the former Laws had not continued More obuious Testimonies to this pupose are had out of Geruase of Tilburne Ingulphus and others and we here omit them But also indeed it was not to be reputed a Conquest or an Acquisition by right of Warre which might haue destroyed the former Laws so much as a violent recouering of the Kingdome out of the hands of Rebels which withstood the Dukes pretence of a lawfull Title claimed by the Confessors adoption or designation of him for his Successor his neerenesse of bloud on the mothers side not a litle also aiding such a pretence to a Crowne For the Confessors mother Emme was sister to Richard the second Duke of Normandie to whom William was Grand-child and Heire But these were only specious Titles and perhaps examined curiously neither of them were at that time enough And howsoeuer his conscience so moued him at his death that he profest he had got England only by Bloud and the Sword yet
of the rest as I could haue translated it and I thinke the iudicious Searcher desires rather the originall tongue whateuer it be then a translation Therefore I suppose if he haue not studied the Laws or otherwise know it he will rather take some minuts pains then blame me for not turning it and howsoeuer to diuers peeuish Ignorants out of their daintie stomachs and a pretence of nothing but the more polished literature it may here seem barbarous and distastfull the truth is it was the plain and genuine French of elder time spoken in the English Court and now lothed only by such a know not at all how to iudge of it nor vnderstand the originall whence it came to be and remain so with vs. I remember that old Father Gregorie of Neocaesarea whom they call Thaumaturgus speaking of the old Imperialls of Rome as they were in their Latin which both then was and now is a most accurat and polite phrase commends them for that they were indeed in an admirable and stately language and in such a one as fitted an Imperiall greatnesse 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 saith hee Yet to me it is crabbed and troublesome and so hee saies he was euer driuen to thinke of it yet in his youth he was put to studie them at Berytus and was taught Latin to that purpose If to so great a man that curious language could seeme no pleasanter when he studied it it is the lesse wonder that the Law French which doth as truly and fully deliuer the matter in our Lawes as the Latin in the Imperialls though indeed farre from polite expression should bee so contemptible among the many petie Ignorants which vsually despise what euer their lazie course of studies hath not furnisht them withall and most indiscreetly censure things only as they see them present without regard to the cause or originall of them which made them that they were first ineuitable and afterward remained not without exceeding difficultie if at all alterable But this by the way Of the IX X.XI.XII.XIII and XIV Chapters VPon the discouerie of the Originall of our Parishes of the ancient and late Practice of Tithing here of Arbitrarie Consecrations of Tithes made by the Laitie of the first setling of Parochiall right to Tithes in England of Appropriations of Exemptions of Infeodations and the ancient Iurisdiction of Tithes all which take vp these VI. Chapters no fit Reader can be so blind as not to see necessarie and new assertions and consequents to be made out of them in euery inquirie that tends to a full knowledge of the true and originall nature of Tithes as they are possest or detaind by either Lay or Clergie man in respect only of any humane positiue Law or ciuill Title But we should here briefly admonish somewhat of our appropriated or consecrated Tithes and conclude all with a touch of the Canon Lawes ancient autoritie which in practice made such alteration in England as is shewed about the yeer M.CC. To the matter of Consecrations and Appropriations here apply what is admonisht touching them in the Reuiew of the VI. Chapter and let euery man first carefully looke that he know the course of old Appropriations and the way how the Monasteries and Colledges came by them before hee conclude rashly of the Tithes that are possessed through them Tithes consecrated and appropriated were purposely dedicate to the Almightie and his Seruice although not without mixture of superstition that we are sure of But although a Tithe generally were due to the Euangelicall Priest iure diuino without any ciuill Title yet we are nothing sure that all or the most appropriated or consecrated Tithes are the selfe same Tithes so due which yet is supposd as cleer and neuer further thought on by such as haue troubled themselues and their Readers whiâ—h arguments for the Church in the point of Appropriations Let him that shall now write of them see here the way how to consider them And let him that detaines them and beleeus them not due iure diuino think of the ancient Dedications of them made to holy vses and howeuer they were abusd to superstition as the other large Indowments of the Church before the Reformation yet followes it not without further consideration that therefore although so dedicated they might be prophand to common vses and Lay hands Consult herein with Diuines But I doubt not but that euery good man wishes that at our dissolution of Monasteries both the Lands and Impropriated Tithes and Churches possessed by them that is things sacred to the Seruice of God although abusd by such as had them had been bestowed rather for the aduancement of the Church to a better maintenance of the labouring and deseruing Ministerie to the fostering of good Arts reliefe of the Poore and other such good vses as might retaine in them for the benefit of the Church or Common-wealth a Character of the wishes of those who first with deuotion dedicated them as in some other Countries vpon the Reformation was religiously done then conferd with such a prodigall dispensation as it happend on those who stood readie to deuoure what was sanctified and haue in no small number since found such enheritances thence deriued to them but as Seius his Horse or the Gold of Tholense But I abstain from censure and adde here by the way a complaint made to the Parlament not long after the Dissolution touching the abuse that followed in the Church through Lay mens possessing of Appropriated Churches and Tithes It deserues to be seriously thought on by euery Lay man that now enioy any of them especially where Diuine seruice is not carefully prouided for Ye that the Lords and Burgesses of Parlament house so are the words of it I require of you in the Name of my poor Brethren that are Inglish men and members of Christes bodie that yee consider well as yee will answer before the face of Almightie God in the day of iudgement this abuse and see it amended Whanas Antichrist of Rome durst openly without any viser walk vp and down thorow out England he had so great fauor ther and his children had such craftie wits fâ—r the children of this worlde are wiser in their generation than the children of light that they had not only almost gotten all the best lands of England into their hands but also the moost part of all the best Benefices both of Personages and Vicarages which were for the most part all impropred to them the Impropriations held by them were much more then one third of all the Parish Churches in England deuided into three parts And whan they had the gifts of any not impropred they gaue them vnto their friends of the which alwaies some were learnd for the Monks found of their friends children at scole And though they were not learnd yet they kept hospitalitie and helped their poor friendes And if the Parsonage were impropred the Monks were bound to deale Almesse
Mascon Afterward also we find that Leges Episcopales which were serued by William the first from the Hundred and confined to the Bishops Consistorie that wee may omit the Nationall or Prouinciall Constitutions of this Kingdome made in those elder times according to the old Canons of the Church of Rome And X. yeers before Gratians Decree writen it is certaine that the Canons of the Church generally by the name of Canones and Canonum Decreta for diuers collections were of them an some also confirmd by Papall autoritie beside the Codex Vetus before that of Gratian were familiarly talkt of and vrged in that great Controuersie in the Synod of Winchester in the fourth yeere of King Stephen touching the Castles of Newarke Salisburie and the Vies where the King denied vtterly Censuram Canonum pati that is to haue it determined by them whether or no the two Bishops Roger of Salisburie and Alexander of Lincolne might lawfull keepe their Castles that they had fortified But while the rest of the Bishops stood so much vpon their Canons and euen in the face of Maiestie profest a rebellion the King and the Lay subiects it seems grew so exasperated against them that by publique command for preseruation of the libertie of the Crown and Laitie they were forbidden to be of any more vse in the Kingdom For so perhaps is that to be vnderstood as we haue elswhere noted in Iohn of Chartres where he sayes that Tempore Regis Stephani à regno iussae sunt Leges Romanae quas in Britanniam domus Venerabilis Patris Theobaldi Britanniarum Primatis asciuerat Ne quis etiam libros retineret edicto Regio prohibitum est What he calls Leges Romanae the most learnd Frier Bacon mentioning the same storie stiles Leges Italiae and takes them for the Roman Imperialls and not for the Canan Law I confesse I see not enough cleerly here to iudge vpon the words of Iohn of Chartres whether it were the Canons or the Imperialls on the one side If we say he meant that Theobald or his Clergie brought the Roman Canon Law it might so seem as if it had not been here before in the hands of the Clergie nor partly practiced by them Which doubtlesse is otherwise If on the other side we vnderstand the Imperialls Copies of which indeed might well be at that very time brought as a noueltie hither for they were then newly found and plainly in Henrie the seconds time they were here in the hands of the more curious Scholers as you may see by Iohn of Chartres his citing of them how then is that true which he presenly after saies of the encreasing power and force of those Leges Romanae Sed saith he Deo faciente eò magis virtus legis inualuit quo eam amplius nitebatur impietas infirmare What force or power at all had the Imperiall here afterward where is any signe of it But the obiection against that which might proue them not to haue been the Canon Laws may not difficultly perhaps be answered It is true that the Canons of Rome were here before and read and partly practiced in the Church But diuers Collections were of them about this age of King Stephen and perhaps some later and larger Collection might be brought hither by Archbishop Theobald or some of his Clergie which are vnderstood I think in that Domus Venerabilis Patris Theobaldi He himselfe perhaps might bring Iuo's Decree when he came from Rome in 3. of King Stephen and endeuour the strict practice of it here which the King and the Lay subiect had reason enough to dislike or some of his Clergie might perhaps afterward bring in Gratians Decree that was both compild by Gratian and confirmd by Pope Eugenius the third about ten yeers before Theobalds death that is about 16. of King Stephen And this way those words of Legis virtus inualuit may haue their truth For howeuer that opposition against the Canon Law were it is most certain that this first part of the body of it the Decree was presently vpon the first publication of it in vse in England and familiarly cited by such Diuines as talk◠of what had reference to it witnesse especially Giraldus Cambrensis in his Epistles and the practice of the Canon Law here for the time of Henrie the second is seen in the Epistles of that Iohn of Chartres which yet remain and are I think the ancientest examples of proceedings in our spirituall Courts But notwithstanding that first part of the body of the Canon Law which expresly commanded Tithes to be generally paid were here soon receiud among the Clergie yet about L. yeers after that the former course of Arbitrarie Consecrations of them continued and both that and the rest of those courses in disposition of Church-reuenues which so differ from the Canons and from the practice of this day was not fully alterd till some Decretalls came hither with more powerfull and dreadfull autoritie as the times were of some of the following Popes especially of Alexander the third and Innocent the third which two alone I think sent as many commanding Decretalls into euery Prouince as all their Predecessors had before done and especially into England as is alreadie shewd they sent diuers only for the matter of Tithes which were all first of Papall autoritie for the particular ends for which they were sent and so were obeid as Canon Law although none of them became parts of the generall Canon Law vntill Gregorie the ninth put some of them into his Decretalls autorised by him in the yeer M.CC.XXX about which time perhaps and diuers yeers before the Canon Law of Rome was not only read here priuatly among the Clergie but professed also in Schooles appropried to it so I ghesse is that close Writ of 19. Hen. 3. to be vnderstood which prohibited the holding of Scholae Legum in London it was directed to the Maior Shrifes commanding them Quod per totam Ciùitatem London Clamari faciant firmiter prohiberi ne aliquis Scolas regens de Legibus in eadem Ciuitate de caetero ibidem Leges doceat Et si aliquis ibidem fuerit huiusmodi Scolas regens ipsum fine dilatione cessare faciat T. Rege apud Basing XI die Decembris This was fiue yeers after the Decretalls published and it seems most probable that these Leges were Canon Laws perhaps mixt as vsually they were in the profession also with the Imperials for both of them were it seems studied here vnder Henrie the third by the Clergie more then any other part of learning and therefore were forbidden as being both in regard of their own autoritie against the supreme Maiestie and independencie of the Crown of England The end of the Reuiew The ancient Records and other Manuscripts Vsed in this Historie of Tithes with references to the places where they are cited and to the Offices and Libraries wherein they