also other Tithes paid to the Church are whersoeuer any such suite is commenced for them in their Spirituall Courts as stand not with their libertie challenged from their Secular or Common Law For euerie Christian State hath its owne Common Laws as this Kingdome hath And the Canon Law euerie where in such things as are not meerly spirituall is alwaies gouerned and limited as with vs by those Common Laws For by that name are they to be calld as they are distinguisht from the Canon Law which hath properly Persons and Things sacred only and spirituall for its obiect in practice as the Canon Laws deale with Things and Persons as they haue reference to a Common not Sacred vse or societie established in a Common wealth Who knowes any thing in Holy-Writ knowes the vse of the word CoÌ„mon to be so distinguisht from Sacred Indeed it hath other notions there also and it is otherwise vnderstood in ius commune frequently among Canonists and Ciuilians But these nothing at all hurt the conuenience of this denomination For by them Ius commune is vsed as it is opposd to Municipale or Consuetudinarium But here and in the nomination of the English Laws as it is distinguisht from Sacred or Spirituall and so in this sense the allowance of Customes and Parlamentarie Statutes as they ought fall vnder the name of Common Law with vs. Here I doubt not but it will be an obuious obiection that I should rather call the supreme and gouerning Law of euerie other Christian State sauing England and Ireland the Ciuill Law that is the old Roman Imperiall Law of Iustinian For such a raigning but most grosse Ignorance is euery where almost to be met withal in England that you shal haue it affirmd for cleer that al other States are gouernd only by the Ciuil Law Indeed if they which say so vnderstood Ciuill for that which is the Ius Ciuile of euery singular State it were but the same to talk of Ciuill and Common Law For the Common Law of England also is the Ius Ciuile Anglorum But it is euen with one mouth pretended vsually that the Body of the Imperialls read and profest in the Vniuersities is the Ciuill Law that gouernes as they say all other States But this howsoeuer receiued through lazie Ignorance is so farre from Truth that indeed no Nation in the world is gouerned by them For whersoeuer they are supposed to gouerne let the briefe cleering of so common an error get pardon for the digression it must be taken that they either gourne by their owne originall autoritie as they are Imperialls or from their being receiued for Laws into other States which are not in that first way subiect to them According to that first way only the Empire and perhaps a good part of Italie should be ruled by them But it is plaine that for the most part the disposition of Inheritances punishing of Crimes course of Proceedings Dowers Testaments and such other which are of greatest moment vnder the Legall rule are euen in those States where by reason of their first Institution they retaine a kind of autoritie ordered by most various Customes and new Statutes of seuerall Prouinces and Cities so differing from those old Imperialls that the whole face and course of them is exceedingly changed in practice This is plaine to euery one that obserues but the diuers Customes and Ordinances of the States subiect to the Empire the Ius Camerale collected by Petrus Denaisius the Nemesis Karulina as it is set forth by Georgius Romus and the many published Decisions or Reports both of the Imperiall Chamber and the Rota's of Rome Naples Piemont Mantua Genoa Bologna and other parts of the Territorie of Italie You shall find those Decisions in matters of greatest moment most commonly grounded on Customarie Law or later Constitutions So that to affirme that in these places the old Imperialls or that Ciuill Law as they call it gouernes is as if for example an equall ignorance shuld tel vs that Spain were gouerned only by Alfonso's Parfidas and Scotland only by Malcolms Laws or the Quoniam Attachiamenta or that in the time of the old Emperors the Roman State had been alwaies gouerned only by the XII Tables or that England were legally ruled only by the Grand Charter or by the two volumes of old Statutes Like accession and alteration as any of these haue had is found in the Empire and in Italie where the Imperialls haue through the power of the Emperors and Popes any now continuing autoritie Now for other Christian States which acknowledge no superior or any subiection to the Empire except Portugall where the Roman Ciuill Law is autorized by an Ordinance of State in cases which are not literally comprehended in the Customes or Constitutions of the Kingdome as France Spaine Scotland Denmarke Poland the Citie of Venice and what also in Germanie hath made it selfe froâ— from the Empire what colour is there that the Imperiall Ciuill Law should gouerne in them Indeed in all of them I thinke the reason of it brought into method is vsed and applied commonly to arâ—â—ment when any of their Customes or Statutes which are especially in France and Spaine very voluminous come in question because the Practicers studied it in the Vniuersities had thence their Degrees giuen them which yet they had not till about some CCCC yeers since neither before about that time was a Doctor or Professor of them known on this side the Alpeâ— But as it is Law it neither binds nor rules with them no more then the old stories of Heredotus Thucydides Diodore Polybius Iosephus Liute Tacitus and the like or Cicero and Demosthenes or Plato's Lawes and other of that kind which are equally somtimes vsed for reason or example specially by the Practicers of France And so the old Imperiall Ciuill Law valet pro ratione as Bertrand d' Argentre President of the Parlament of Rennes sayes non pro inducto iure pro ratione only quantum Reges Dynastae Respublicae intra potestatis suae fines valere patiuntur And in France and Spain Laws were some CCC yeers since expressely made that the Imperials should haue no force in theÌ„ And in Scotland it is ordaind that no Laws haue force there but the Kings Laws and Statutes of the Realme and that it should be gouerned by the common Lawes of the Realme and by none other Lawes Doubtlesse Custome hath made some parts of the Imperialls to be receiued for Law in all places where they haue been studied as euen in England also in Marine causes and matter of personall Legacies But is England therefore gouerned by them It were as good a consequent to conclude so as to affirme that any of the other States were because som petie things are ordered according to some Imperiall Text receiued and establisht by Custome But this may seeme no fit place to speak more perhaps not so much to
not then either the purpose or conuenience of thâ—â— Historie bee valued from what distemperd Malice Ignorance or Iealousie haue cryed it down with in corners The learned Frier Bacons most noble Studies being out of the rode of the lazie Clergie of his time were vehemently at first suspected for such as might preiudice the Church Reuchlin and Budè the one for his Ebrew the other for his Greek were exceedingly hated because they learned and taught what the Friers and Monkes were meere strangers to Others about their time had like fortune Neither was any one thing in the beginning of the Reformation so vnwillingly receiud or more opposd by such as labourd that Ignorance might still continue in her triumph then that singular light to the cleering of error the Geek Text of the New Testament first publisht in print by Erasmus and it was ordaind as he saies vnder great penaltie in I know not what Colledge of Cambridge that no Fellow of the house should be so impious as bring it within the gates For the World hath neuer wanted store of such blockes laid in the way of Learning as willingly endure not any part of curious diligence that seekes or teaches whatsoeuer is beyond their commonly receiud Nihil vltrà But there are others that both can iudge and doe wish for all light to Truth such they were that euen while IgnoraÌ„ce yet held her declining Empire defended those Worthies Bacon Bude Reuchlin Erasmus and the rest that so sufferd and to doubt whether this of mine shall find such also were but to question wâ—ether euery man were yet a malicious Rebell to Truth and wholly without Ingenuity that performes euen as much in fostering her as Time doth in breeding her But neither is the Worke alone taxt by mistaking of the subiect but also in regard of the Autor what hath a Common Lawyer to do so they murmur with writing of Tithes for by that name it pleases them to stile me and I must confesse I haue long labourd to make my selfe worthy of it But I would their discretions also would designe out to whom it belongs more to write the Historie of Tithes then to a Common Lawyer I expect not such a sottishnesse as that they should so much as dream it to bee more proper to any of the other single professions of this Kingdome except to a Diuine or a Ciuilian vnder which name because those which practice the Canon Laws here according as the Common Laws permit take their Degrees in the Ciuill Law I comprehend also the Canonist and vse hath here made the name of Ciuill Law to denote both Ciuill and Canon For the Diuine what is there in the course of his Study restraind to his profession that can neer enough instruct him in the Laws and Practice especially of the Christian times Nor is the Practice or Laws of Tithes among the Iews as they are deliuerd interpreted by their Doctors more indeed restraind to the course of Diuinitie then of Law and Historie But should a Ciuilian rather haue dealt with it if hee then eyther according to what we vnderstaÌ„d by that name in England as a Ciuilian or as a Canonist if as a Ciuilian hee should theâ— haue made that proper to himselfe touching which in the whole body of his Law though hee take in also Theodosius his Code the Basilica and the Nouels of the later Easterne Emperors not the least mention is found of Tithes belonging to the Church Indeed a case is put by Vlpian of vowing of Tithes which some old ignorant and barbarous Doctors vnderstand of Tithes among Christians but they were long since laught at for it by him that first happily labourd in the restoring to that Profession the lost neatnesse and elegancie of the Text. That was cleerly spoken of the Roman vse only of vowing to Hercules or the like But should the Ciuilian as a Canonist haue done it what in all his Decrees Decretals and Extrauagants though hee ioyne many armies of his Doctors directs him to the Practice of the Iews Gentiles or Christians where shall the Canonist or the Ciuilian or the Diuine in the courses of their proper studie find the many Secular Laws made in behalfe of the Clergie for Tithes where the ancient practice of payment If it be cleer then as I hope none hath the impudence to denie it that neither the Diuine nor Ciuilian nor Canonist by the course of their owne appropried Studies can come to what is necessary in the knowledge of the History of Tithes it will bee as cleere that none of them could challenge the medling with it as a right specially belonging to any of their Professions But neither indeed is it proper to any one alone of those that are commonly made Professions The truth is both it and not a few other enquiries of subiects too much vnknowne fall only vnder a farre more generall Study that is of true Philologie the only fit Wife that could be found for the most learned of the Gods Shee being well attended in her 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or daily seruices of Inquiry by her two Hand-maids Curious Diligence and Watchfull Industrie discouers to vs often from her raised Towre of Iudgment many hidden Truths that on the deuell of any one restraind Profession can neuer be discerned and euery Profession takes from her to it selfe as was long since obserud some necessary part not elswhere to be sought for not much otherwise then as the Subaltern sciences do from their Superiors or as they all do from that Vniuersalitie or First Philosophie which is but the more reall part of true Philologie and establishes principles to euery Facultie that could not of it selfe alone know how to get them But is not the companie of this great Lady of Learning with her attendants as fit for a Student of the Common Laws of England as for any other pretending what facultie soeuer I neuer heard that shee was engaged alone to any beside Mercurie Noâ— find I any conditions in the Mariage twixt her and Mercurie that shee should fauour any one particular Profession more then another I know there haue been and are many common Lawiers of other States for euery State in Christendom is gouerned by its own Common Laws and Customs and hath truly its common Lawiers as is further shewd towards the end of the Reuiew so farre from being strangers to Her that they are all to be reputed of her chiefest Darlings and some of them are hardly equalled among any other Professors witnesse in France those euer honord names Bude Cuiacius Brisson Tiraquell Pithou Pasquier Le Thou Aerault Berterie Sauaron and others in the Empire Gruter Freher Ritterhuse in the vnited Prouinces Groot Heuter and the like elsewhere For these all were or are practicers of the various common or secular Laws of their own Nations although they studied the Imperialls and Canons in the Vniuersitie and who of the learned knows not
what light these haue giuen out of their studies of Philologie both to their own and other Professions and that in rectifying of Storie in explication of good Autors in vindicating from the iniurie of time both what belongs aswell to sacred as prophan studies why then may not equally a common Lawier of England vse this Philologie and by consequent be a fit Autor of this Historie of Tithes as of a proper issue of Philologie it being indeed much more proper also to Philologie in a common Lawier then in one of any other Profession For the two chief parts of it that is Practice of paiment and the Laws of Tithing that either are in force or euer were receiud touching them in any State were alwaies and are part of the proper Obiect of his Studies and what euer Diuines or Canonists conclude of them it is the Secular or Common Laws only that according to Customs and various Ordinances permit or restraine the Canons in legall exaction of them and that in other States aswell as in England for howsoeuer it be affirmd by some which enough accuratly think not of it that the Clergie euery where in the Western Church being scarce a hundreth part of the People are inricht with whole Tithes of Fruits of the Earth and of Cattell yet it is certain that in no State of that Church whole Tithes are vniuersally paid But frequently Customs not only of a Modus but de non decimando are by force of secular Law practiced witnesse for the Empire is in that Diet of Norimberg vnder Charles the fift where the lay Princes of the Empire complaine against the Church for offering to put their Canons for Tithes in practice Etsi Laici per multa annorum curricula de certis eorum praedijs neque maiores neque exiguas vt vocant praestiterint Decimas c. As much for Spain is in Gouaruuias for Italie in Vgolin Caietan others for France in Papon on the customs of Burbon Boerius on those of Berry de Grassalio beside the many Arrests of Parlament that are adiudged against the Canons But these things are more particularly shewd in the Seuenth Chapter wherein as in the rest we haue affected rather what is Autoritie enough then what is various Who now can shew colour why this was not a worke proper enough for a Common Lawier But this whole Premonition I thinke is as well more then is necessarie to the truly iudicious as it may perhaps seem lesse then what satisfies to the numerous Pretenders that neither know any way that lies out of their beaten Rode nor value books but as Stationers do nor admit willingly of any other kind of Studies then such as are more like sordid Occupations then Liberall Professions But I stay you too long here Reader Trie now how I haue performd my promise spare not to trie with your most censorious examination sed magis acri Iudicio perpende si tibi Vera videtur Dede manus aut si Falsa est accingere contra THE CONTENTS CAP. I. Of Tithes before the Law I. Melkizedek had Tithes only of the spoiles of Warre giuen him by Abraham 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 denotes spoiles of Warre and perhaps also profits taken from the ground or Ruta caesa II. Iacobs vow and payment of Tithes Both Abraham and Iacob were Priets when they paid Tithes In whom the Priest-hood was before the Law III. Whether any certaine Quantitie were obserued in the Offerings of Cain and Abel IV. A Cabalistique operation in numbers by which Tithes and the first Fruits offered by Abel might haue a mysticall identity Such operations were amongst old Christians also but meerly vaine CAP. II. How among the Iews Tithes were paid or thought due I. First fruits and Heaue offering that is sixtieth parts at least first were paid out of the fruits of the earth II. The first Tithe was paid to the Leuites who out of that paid a Tithe to the Priests and then the second Tithe III. The errour of them that make a third Tithe The second Tithe of euery third yeere spent on the poore what they take the yeer of Tithing to signifie in Deuteronomy IV. Aboue a sixt part was yeerly paid by the Husbandman but no Tithe by him to the Priests V. How their Cattell were tithed VI. A discontinuance of payment among them Honester Ouer-seers chosen for the true payment Demai that is things doubtfull whether Tithes were paid of them or no. Passages in Epiphanius and S. Chrysostome of their Tithing VII Their Tithing of euery herb what their Canonists hold Titheable VIII Their Law of Tithing after the destruction of their second Temple ceased by the doctrine of their Canonists which teaches also that they are not to pay elsewhtre then in the Land of Israel and some adiacent Countries Presbyteratus Iudaeorum totius Angliae anciently granted by the English Kings CAP. III. Tithes how paid or due among the Gentiles I. Some Romans paid to some Deities and somtimes only a Tenth of spoiles of procede of merchandize of their estates but vsually also by vow which bound the Heire or Executor II. Festus is falsly cited for a generall custom of payment of Tithes among the Ancients III. Examples of Tithes paid among the Graecians IV. How the assertions of a generall vse of giuing Tithe to the Gods among the Graecians are to be vnderstood and why 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is to Tithe signifies also to Consecrate V. A Tithe paid to Hercules of Tyre and Sabis an Arabian Deitie the same with Iupiter Sabazius CAP. IV. In the first foure hundred yeers after Christ. I. No vse of Tithes occures till about the end of this foure hundred yeeres Offerings and Monthly pay for maintenance of the Church in the primitiue times Diuisiones Mensurnae Sportulae II. Payment of Tithes of Mines and Quarries to Christian Emperors The wealth of the Church enuied III. The opinion of Origen touching Tithes IV. Constitutions of those times that mention them are of no credit CAP. V. From about the yeer CCCC till DCCC I. Tithes were now paid in diuers places to Abbots to the Poore to the Clergie II. Some Consecrations were then made in perpetuall right at the pleasure of the Owner III. That storie of Charles Martell his taking away Tithes making them feodall cannot be iustified IV. The opinions of S. Ambrose S. Augustine S. Hierom and S. Chrysostom the first two teach the Tenth due by Gods Law the other two perswade only that a lesse part should not be offerd V. Of Canons for the payment of Tithes that are attributed to this Age. CAP. VI◠Between about the yeer D.CCC. and neere M.CC. I. Payment of Tithes how performed II. Arbitrarie Consecrations of them alone like Grants of Rents-charge at the Lay-owners choice to any Church or Monasterie were frequent and sometimes Lay-men sold them to the Church Redimere Decimas III. Appropriations of them with Churches wherin they passed as by
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
conueiance of them either by Inuestiture to an Incumbent or by Appropriation the reuenue that was in Tithes passed by expresse words and that in point of interest from the Patron as also in regard that at this day the Patron of a Parson prohibited by Indicauit to sue in the Spirituall Court for the fourth part of the Tithes of a Church may haue his Droit d'auowson de Dismes it was requisit therefore to adde these not vulgar or obuious notes of the Aduowsons in this discouerie of the ancient conueiance and interest of Tithes CAP. XIII I. Infeodations here into Lay hands since the Statuts of Dissolutions Of Infeodations before that time in England somewhat more of the originall of Lay mens practice in arbitrarie Consecrations or Infeodations II. Exemptions or discharges of payment originally by Priuileges Prescriptions Vnitie Grants or Compositions and by the Statuts of Dissolutions I. FRom those arbitrarie Consecrations and frequent Appropriations of Tithes whereof we haue hitherto made mention to Monasteries or other Religious Places as Colleges of Regulars Chantries and Free-Chappels came the present and common Infeodations of them into Lay hands which began in the age of our Fathers For the Portions of Tithes conueied to them out of Closes parts of Mannors and whole Demesnes by the owners together with the Tithes granted and possessed with appropriated Churches were first by the Statut of Dissolution of Monasteries in 31. Hen. 8. and by that other of 1. Ed. 6. giuen to the Crown and from thence granted to Lay men whose Posteritie or Assignees to this day hold them with like limitation of estate as they do other enheritances of Lands or Rents and for them haue like remedie by the Statut of 32. Hen. 8. cap. 7. by reall action as Assise Dower or other originals as for Lands Rents or other Lay possessions by the cōmon Law they might haue But although in other States these Infeodations or Conueiances of the perpetuall right of Tithes to Lay men be very ancient and frequent also yet no such certain or obuious testimonie of their antiquitie is in the moniments of England as can enough assure vs that they were before the Statut of Dissolutions in any common vse here But some were and for aught appears in the practice of the time many more might equally haue been And what scruple was there but that long before the generall dissolution of Monasteries Henrie the fift might by the Law of the Kingdom haue made Infeodations into Lay hands as Henrie the eight did of all Tithes belonging to the Priors aliens whose possessions were giuen to him by Parliament he had them setled in the Crown in Fee and afterward disposed of them to other Ecclesiastique Corporations at his pleasure no otherwise then of other Lay possessions By the way we vnderstand in these Infeodations by the name of Lay men only such as were not either in Orders or professed in Religion for otherwise all the possessions of Tithes enioied by Nunnes and the like that were indeed Lay though not commonly called so might be comprehended vnder the name of Infeodations But that some were here obserue that of Odo Bishop of Bayeux and Earle of Kent which is before cited out of the liues of the Abbots of S. Augustines in Canterburie The words are Decimas aliquas quas mei fideles habebant c. What can that be according to the words other then Tithes that were in the hands of some of his Tenants You may adde that of Robert S. Iohn cited before out of the Book of Bosgraue where he had by the gift of his brother William certain Tithes which he gaue to the Priorie for maintenance of a fourteenth Monk And obserue the rest of the Deed there So out of the Book of Osney it appears before that Decimatio Nicholai de Stodeham quam Fromundus Capellanus tenebat is granted by D'Oilly Had not D'Oilly this from Stodeham Or was Stodeham here one of his Bailifes or Fermors whose Tithe he graunted as Lord or according to couenant with the Lessee Other such occurre sometimes And perhaps Decimae hominū meorum the like granted may suppose a title possessed in the Tithes by the Lay grantor And in the same Book of Osney in a Passage writen in a hand of about Hen. 5. touching the conueyances of Tithes by Lay men to Monasteries it is related that he that wrote it saw Quendam Rogerum D'Oyly Dominum cuiusdam partis de Bampton in Episcopatu Lincolniensi suis Decimis ita vti vt nunc vni nunc alteri de suis Valettis ipsas conferret annuatim qui sibi in diuersis officijs ministrabant vntill afterward hee erected a Chaunterie with them in the Church of Bampton These Grants to his Valets plainly were as Infeodations And what els was in that known case of Herne and Pigot in Mich. 39. 40. Elizab. but an ancient kind of Infeodation at least an Inheritance of Tithes from immemoriall time in a Lay man That and other like to it might begin vpon reall compositions and so the Tithes be deriued out of the Church But regularly I thinke at this day no kind of Infeodation is here allowable in Lay mans making title to a perpetuall right of Tithes except only by the later Statuts of Dissolutions vnlesse it either be deriued from some old Graunt of discharge from the Parson Patron and Ordinarie in which case hee to whom the Infeudation should be made could haue it only as a Lay profit issuing out of the discharged land or ioyned with a Consideration to be giuen for maintenance to the Parson by him that receiues them and this either from time immemoriall or by ancient composition So I take the meaning of our reuerend Iudges to haue been touching this point In summe then we may affirme that some such ancient Infeodations haue been in England as in other States but that of later time none are allowable if deriued from other ancient originall then from the Statuts of Dissolutions vnlesse they bee anciently deriued out of the Church first by discharge or appeare to be but as a Reward giuen in pernancie or as Consideration for a Pension or other competent Maintenance yeerely payable to the Parson Which withall well stands with the common opinion of the originall of such Infeodations whereof we haue alreadie spoken And whereas it hath been resolued that without these reasons a Lay man was not here capable at the common Law of Tithes by pernancie it well agrees with a Decretall of Alexander the third which forbids one that maried a Parsons sister to enioy a Tithe giuen him by the Parson as for the mariage portion although the Parson were still liuing But also that we may not defraud you of any testimonie of former times that may seeme obseruable touching these Infeodations whereof so few examples and so ltttle mention is in the Moniments of England take this speciall Disquisition writen
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
themselues from the Patron seuerally and directly in point of interest The beginning of Parish Churches Disposition of the Offrings receiued there Lay-foundations of Parish Churches The interest that Patrons claymed Right of Aduowson The ceremonie of putting a Cloth or Robe vpon the Patron at the consecration of the Church The vse of Inuestitures by which as by liuerie of Seisin Lay Patrons gaue their Churches Commendatio Ecclesiae Benefice None anciently receiued the character of Orders but when also the ordination was for the title of some Church Thence came the later vse of Episcopall Institution Whence some Patrons came to haue most part of the Tithes Canonica portio The Clergy and Councels against Inuestitures Their continuance till towards M.CC. when Institution as it is at this day vpon presentation grew common How Appropriations were in those times made The ancient Episcopall right to Tiths especially in Germanie and the Northern parts How Monks iustified their possession of Tithes and Parish-Churches The right of Tithes generally denied in Turingia to the Archbishop of Mentz IV. Of Infeodations of Tithes into Lay-hands both from the Clergie and Laitie and of their Originall V. Of Exemptions graunted by the Pope Templars and Hospitalars accounted no part of the Clergie VI. The generall opinion was that they are due iure diuino but this indifferently thought on seems to haue denoted rather Ecclesiastique or Positiue Law by the doctrine and practice of the Clergy then Diuine Morall Law VII Laws Imperiall and Canons Synodall and Pontificiall for the payment of Tenths The grosse error of some that mistake Nona and Decima in the Capitularies The first Generall Councell that mentions Tithes CAP. VII Of the time from M.CC. or neere thereabouts till this day I. The Canons of Generall Councells and Decretalls for Parochiall right in Tithes not formerly otherwise conueyed which now became more established II. The opinion of the Canonists in the question of what immediate Law Tithes are due by is that they are payable iure diuino III. How the same question is determined by the opinion of the Schoolmen IV. Of those that held them meere Almes V. The opinion in Diuinitie that concludes them due iure diuino With a Determination of the Vniuersitie of Oxford touching Personall Tithes VI. Laws Customs and Practice of France in exaction of them Of their feudall Tithes at this day VII Laws Customs and Practice in Spain touching the generall payment of Tithes Tithes there in Lay mens hands VIII Customs and Infeudations in Italie Payment in Venice in Germanie Of the Hungarians Polacks Swethians and others touching the dutie and possession of Tithes IX Of Tithes in Scotland With an Example of an Appropriation of Churches and Tithes there by Robert de Brus. And something of Tithes in Ireland CAP. VIII The Laws of England made in the Saxon mycel synodes or ƿitenagemotes in Parliaments and in the Coūcels here held either National or Prouincial or by the Pope for the due payment or discharge of Tithes in this Kingdome Petitions or Bils in Parliament touching them are inserted all in their course of time CAP. IX I. Of Parishes in the Primitiue Church of the Britons II. Parishes in the Primitiue Church of the English Saxons first limited only in regard of the Ministers function not of Parochiall profits all the profits of euery whole Diocese first made a common treasure to bee disposed of by the Bishop and his Clergie of the same Diocese Residence of the Bishop and Clergie in those times The great regard then had to euery Clergie man III. Of diuision of our Parishes whether Honorius Archbishop of Canterburie first deuided them Parochia or Paroecia diuersly taken IV. Lay-foundations of Parish Churches from whence chiefly came Parochiall limits in regard of the profits receiud to the singular vse of the Incumbents Limitation of Tithes by King Edgar to the Mother Parish Church or Monasterie Monasteries preferd before other Churches for buriall Mortuaries 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a third part of Tithes according to King Edgars Law must be giuen to a new built Church that had right of Sepulture by the Founder Sepultura and Baptisterium Capella Parochialis a Parish commanded to be made out of another that was too large by the Pope one Parish ioynd to another by the King CAP. X. I. The Practice of Tithing Of King 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 Prouinciall Synod Tithes how mentiond in Domesday Testimonies of payment of them Henrie the thirds grant of the payment of tithe of Hay and Mills 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 CAP. XI I. Arbitrarie Consecrations of Tithes before about the time of the most known Councell of Lateran by conueiance from the owner of all or part to any Church or Monasterie at his pleasure in examples selected out of moniments of infallible credit II. A Writ in the Register intelligible only from those arbitrarie Consecrations a like example to it out of the booke of Osney III. The libertie of the Baronage anciently challenged to build Churches in their Territories Parochiall right to Tithes setled in Practice IV. Of Tithes of encrease in lands not limited to any Parish How by the common Law they are to be disposed of 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 hereditarie 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 CAP. XIII I. Infeodations here into Lay hands since the Statuts of Dissolutions Of Infeodations before that time in England somewhat more of the originall of Lay mens practice in arbitrarie Consecrations or Infeodations II. Exemptions or discharges of payment originally by Priuiledges Prescriptions Vnitie Grants or Compositions and by the Statuts of Dissolutions CAP. XIV I. The iurisdiction of Ecclesiastique causes in the Saxon times exercised by the Shrife and the Bishop in the Countie
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
also by expresse declaration in some of his Patents he before pretended his right from the Confessors gift In ore gladij saith he Regnum adeptus sum Anglorum deuicto Haraldo Rege cum suis complicibus qui mihi regnum cum prouidentia Dei destinatum beneficio concessionis Domini cognati mei gloriosi Regu Edwardi concessum conati sunt auferre c. And the stories commonly tell vs that the Confessor successionem Angliae ei dedit And although Harold also pretended a Deuise of the Kingdom to himselfe made by the Confessor in extremis and vrged also that the custom of England had been from the time of Augustines comming hether Donationem quam in vltimo fine quis fecerit eam ratam haberi and that the former gift to the Norman and his own Oth for establishment of it were not of force because they were made absque generali Senatus Populi conuentu edicto yet for his own part he was driuen to put all vpon the fortune of the field and so lost it and the Norman with his sword pretence of the sufficiencie precedence of the gift made to himself got the Crown as if he had bin a lawfull Successor to the Confessor and not a vniuersall Conqueror All this is plain out of the stories and iustified infallibly by that of the Titles of many coÌ„mon persons made to their possessions in England after his Kingdom setled vpon the possession of themselues or their Ancestors in time of the Saxon Kings especially of the Confessor but this was alwaies in case where they by whose possession the title was made had not incurrd forfeiture by Rebellion many such Titles are cleerly allowd in the book of Domesday writen in the Conquerors time one specially is noted by the most learned Camden in his Norfolk that as I remember is toucht in Domesday also but enough others are dispersed there which agree with it How could such Titles haue held if he had made an absolute conquest of England wherein a vniuersall acquisition of all had been to the Conqueror and no title could haue been deriud but only from or vnder him More might be brought to cleer this but we adde here only the iudicious assertion of a great Lawier of Edward the thirds time Le Conquerour saith he ne vient pas pur ouster eux que anoient droiturell possession mes de ouster eux que de lour tort auoient occupie ascun terre en desheritance del Roy son Corone It was spoken vpon an Obiection made in a Quo warranto against the Abbot of Peeterborough touching a Charter of King Edgar which the Kings Counsell would haue had void because by the CoÌ„quest all FraÌ„chises they said were deuolud to the Crown But by the way for that of his neernesse of bloud which could not but aide his other pretended Title let it not seem meerly vain in regard of his being a Bastard There was good pretence for the helpe of that Defect also For although the Laws of this Kingdom and I think of all other ciuill States at this day exclude Bastards without a subsequent legitimation from enheritance yet by the old Laws vsd by his Ancestors Countrie men that is by those of Norway a Princes sonne gotten on a Concubine bond or free was equally inheritable as any other born in Wedlock which was I beleeue no small reason why he stood at first so much for the Laws of Norway to haue been generally receiud in this Kingdom and some Stories also which make mention of Duke Robert his getting William on that Arlet or Arirâ— as shee is sometimes writen say that shee was to him a good while vice vxoris So Henrie of Knighton Abbot of Leicester Transiens saith he Robertus aliquando per Phaleriam vrbem Normanniae vidit puellam Arlec nomine Pellâ—parij filam inter cateras in chorea tripudiantem nocte sequente illam sibi coniunxit quam vice vxoris aliquamdiù tenens Willielmum ex ea generauit And he tells vs also the common tale of tearing her smock If shee were so his Concubine or Viceconiux between whom and a wife euen the old Imperialls make no other difference but honor and dignitie and by them also some kind of inheritance is allowd to such Bastards as are Naturales liberi that is gotten on Concubines it was much more reasonable that her sonne should be reputed as legitimate then that the sonne of euery single woman bond or free whether Concubine or no should be so as those Laws of Norway allow and when he had inherited his Dukedome he made doubtlesse no question but that his bloud was as good in regard of all other inheritances that might by any colour be deriud through it and therefore William of Malmesburie well stiles him proximè consanguineus also to the Confessor as he was indeed on the Mothers side and those of the posteritie of Edward sonne to Ironside were then so excluded or neglected that their neernesse on the Fathers side could not preuent him you may see the common stories of them But whereas that excellent Lawier Litleton saies that William the Conqueror was called a Bastard because he was born before mariage had between his Father and Mother and that after he was born they were maried which indeed by the Imperialls and by the generall Law of France would haue made him wholly legitimat I doubt he had but litle or no ground to iustifie it Had he been so legitimat it is not likely he should haue been stiled so commonly and anciently Bastardus which name euen in his own Charters he sometimes vsed with cognomento as also the Bastards of the old Philip Duke of Burgundie were wont to do although of later time it bee reputed as a name of dishonor and the actio iniuriarum or an action vpon the case lies where euer it be falsly obiected as some will haue it But these things proue enough that this William seised the Crown of England not as conquerd but by pretence of gift or adoption aided and confirmd by neernesse of bloud and so the Saxon Laws formerly in force could not but continue and such of them as are now abrogated were not at all abrogated by his Conquest but either by the Parlaments or Ordinances of his time and of his successors or else by non-vsage or contrarie custom The Laws that are here gatherd are for the most part Latin Saxon or French The Saxon is interpreted by the old Latin But the Latin and French are left only in their own words I presume scarce any man that with the least care studies the subiect wil confesse he vnderstands not the context of such Latin And the French I translated not specially because it is but the same which is in our old yeer Bookes and Statutes and may indeed euen as soon be vnderstood by any fit Reader